COPY AS EXECUTED
U.S. $375,000,000
FIVE-YEAR CREDIT AGREEMENT
Dated as of June 30, 1995
Among
ALLIEDSIGNAL INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Agent,
and
ABN AMRO BANK N.V. and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Agents
FIVE-YEAR CREDIT AGREEMENT
Dated as of June 30, 1995
ALLIEDSIGNAL INC., a Delaware corporation (the
"Company"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the
signature pages hereof, CITIBANK, N.A. ("Citibank"), as agent
(the "Agent"), and ABN AMRO BANK N.V. and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as co-agents (the "Co-Agents"), for the
Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Alternate Currency" means any lawful currency other
than Dollars and the Major Currencies that is freely
transferrable and convertible into Dollars.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurocurrency Lending
Office in the case of a Eurocurrency Rate Advance and, in
the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Agent as its
Applicable Lending Office with respect to such Competitive
Bid Advance.
"Applicable Margin" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
Public Debt Applicable
Rating Margin
S&P/Moody's
Level 1
AA- /Aa3 or above .085%
Level 2
Lower than AA-/Aa3 .155%
but at least A-/A3
Level 3
Lower than A-/A3 .250%
but at least BBB+/Baa1
Level 4
Below BBB+/Baa1 .350%
"Applicable Percentage" means, as of any date, a
percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
Public Debt Applicable
Rating Percentage
S&P/Moody's
Level 1
AA- /Aa3 or above .065%
Level 2
Lower than AA-/Aa3 .095%
but at least A-/A3
Level 3
Lower than A-/A3 .125%
but at least BBB+/Baa1
Level 4
Below BBB+/Baa1 .150%
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Agent, in substantially the
form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not
previously a Lender that becomes a Lender hereunder pursuant
to Section 2.05(e) or Section 2.16.
"Assumption Agreement" means an agreement in
substantially the form of Exhibit D hereto by which an
Eligible Assignee agrees to become a Lender hereunder
pursuant to Section 2.05(e) or Section 2.16, in each case
agreeing to be bound by all obligations of a Lender
hereunder.
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to time,
as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of
1% or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus
(ii) the rate obtained by dividing (A) the latest three-
week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month Dollar non-personal time deposits in the
United States, plus (iii) the average during such three-
week period of the annual assessment rates estimated by
Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring
Dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
denominated in Dollars that bears interest as provided in
Section 2.07(a)(i).
"Borrower" means the Company or any Designated
Subsidiary, as the context requires.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City and, if the applicable Business Day relates to any
Eurocurrency Rate Advance or LIBO Rate Advance, on which
dealings are carried on in the London interbank market and
banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance.
"Change of Control" means that (i) any Person or group
of Persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended (the "Act"))
(other than the Company, any Subsidiary of the Company or
any savings, pension or other benefit plan for the benefit
of employees of the Company or its Subsidiaries) which
theretofore beneficially owned less than 30% of the Voting
Stock of the Company then outstanding shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under
the Act) of 30% or more in voting power of the outstanding
Voting Stock of the Company or (ii) during any period of
twelve consecutive calendar months, individuals who at the
beginning of such twelve-month period were directors of the
Company shall cease to constitute a majority of the Board of
Directors of the Company.
"Commitment" means as to any Lender (i) the Dollar
amount set forth opposite its name on the signature pages
hereof, (ii) if such Lender has become a Lender hereunder
pursuant to an Assumption Agreement, the Dollar amount set
forth as its Commitment in such Assumption Agreement or
(iii) if such Lender has entered into any Assignment and
Acceptance, the Dollar amount set forth for such Lender in
the Register maintained by the Administrative Agent pursuant
to Section 9.07(d), in each case as the same may be
increased, terminated or reduced, as the case may be,
pursuant to Section 2.05(a), (b), (c), (d) or (e) or Section
2.16.
"Commitment Date" has the meaning specified in Section
2.05(e)(i).
"Commitment Increase" has the meaning specified in
Section 2.05(e)(i).
"Competitive Bid Advance" means an advance by a Lender
to any Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described
in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance (each of which shall be a "Type" of Competitive
Bid Advance).
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances from
each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described
in Section 2.03.
"Competitive Bid Note" means a promissory note of any
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of such Borrower to such Lender resulting from
a Competitive Bid Advance made by such Lender to such
Borrower.
"Competitive Bid Reduction" has the meaning specified
in Section 2.01.
"Consenting Lenders" has the meaning specified in
Section 2.16(b).
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Consolidated Subsidiary" means, at any time, any
Subsidiary the accounts of which are required at that time
to be included on a Consolidated basis in the Consolidated
financial statements of the Company, assuming that such
financial statements are prepared in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to
Section 2.08.
"Debt" means, with respect to any Person: (i)
indebtedness of such Person, which is not limited as to
recourse to such Person, for borrowed money (whether by loan
or the issuance and sale of debt securities) or for the
deferred (for 90 days or more) purchase or acquisition price
of property or services; (ii) indebtedness or obligations of
others which such Person has assumed or guaranteed; (iii)
indebtedness or obligations of others secured by a lien,
charge or encumbrance on property of such Person whether or
not such Person shall have assumed such indebtedness or
obligations; (iv) obligations of such Person in respect of
letters of credit (other than performance letters of credit,
except to the extent backing an obligation of any Person
which would be Debt of such Person), acceptance facilities,
or drafts or similar instruments issued or accepted by banks
and other financial institutions for the account of such
Person; and (v) obligations of such Person under leases
which are required to be capitalized on a balance sheet of
such Person in accordance with GAAP.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Designated Subsidiary" means any corporate Subsidiary
of the Company designated for borrowing privileges under
this Agreement pursuant to Section 9.08.
"Designation Letter" means, with respect to any
Designated Subsidiary, a letter in the form of Exhibit E
hereto signed by such Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in
Section 3.01(b).
"Dollars" and the "$" sign each means lawful money of
the United States of America.
"Domestic Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on Schedule I
hereto and, with respect to any other Lender, the office of
such Lender specified as its "Domestic Lending Office" in
the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose
operations are conducted primarily in the United States
excluding any Subsidiary whose assets consist primarily of
the stock of Subsidiaries whose operations are conducted
outside the United States of America.
"Effective Date" has the meaning specified in
Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized
under the laws of the United States, or any State thereof,
and having total assets in excess of $10,000,000,000; (iv) a
savings and loan association or savings bank organized under
the laws of the United States, or any State thereof, and
having a net worth of at least $500,000,000, calculated in
accordance with GAAP; (v) a commercial bank organized under
the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the
International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any
such country, and having total assets in excess of
$10,000,000,000, so long as such bank is acting through a
branch or agency located in the country in which it is
organized or another country that is described in this
clause (v); and (vi) the central bank of any country that is
a member of the Organization for Economic Cooperation and
Development.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural
resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any
date means the equivalent in Dollars of such Foreign
Currency determined by using the quoted spot rate at which
Citibank's principal office in London offers to exchange
Dollars for such Foreign Currency in London at 11:00 A.M.
(London time) two Business Days prior to such date, and the
"Equivalent" in any Foreign Currency of Dollars means the
equivalent in such Foreign Currency of Dollars determined by
using the quoted spot rate at which Citibank's principal
office in London offers to exchange such Foreign Currency
for Dollars in London at 11:00 A.M. (London time) two
Business Days prior to such date.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person
that for purposes of Title IV of ERISA is a member of such
Person's controlled group, or under common control with such
Person, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" with respect to any Person means (a) (i)
the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan of such
Person or any of its ERISA Affiliates unless the 30-day
notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection
(1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan of such Person or any of its ERISA Affiliates, and an
event described in paragraph (9), (10), (11), (12) or (13)
of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan of such Person or any of its ERISA
Affiliates; (c) the provision by the administrator of any
Plan of such Person or any of its ERISA Affiliates of a
notice of intent to terminate such Plan in a distress
termination pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of such Person or any of its
ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by such Person
or any of its ERISA Affiliates from a Multiple Employer Plan
during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan of
such Person or any of its ERISA Affiliates; (g) the adoption
of an amendment to a Plan of such Person or any of its ERISA
Affiliates requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by
the PBGC of proceedings to terminate a Plan of such Person
or any of its ERISA Affiliates pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to
administer, such Plan.
"Escrow" means an escrow established with an
independent escrow agent pursuant to an escrow agreement
reasonably satisfactory in form and substance to the Person
or Persons asserting the obligation of one or more Borrowers
to make a payment to it or them hereunder.
"Eurocurrency Lending Office" means, with respect to
any Initial Lender, the office of such Lender specified as
its "Eurocurrency Lending Office" opposite its name on
Schedule I hereto and, with respect to any other Lender, the
office of such Lender specified as its "Eurocurrency Lending
Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from
time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for
each Eurocurrency Rate Advance comprising part of the same
Revolving Credit Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars or in the
relevant Major Currency are offered by the principal office
of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part
of such Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest
Period. The Eurocurrency Rate for any Interest Period for
each Eurocurrency Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent
on the basis of applicable rates furnished to and received
by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit
Advance denominated in Dollars or in a Major Currency that
bears interest as provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest
Period for all Eurocurrency Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes
deposits by reference to which the interest rate on
Eurocurrency Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Facility A Credit Agreement" means the 364-
Day Credit Agreement dated as of July 7, 1993, as amended,
among the Company, the banks parties thereto, Citibank, as
agent, and ABN AMRO Bank N.V. and Morgan Guaranty Trust
Company of New York, as co-agents.
"Existing Facility B Credit Agreement" means the
Revolving Credit Agreement dated as of July 7, 1993, as
amended, among the Company, the banks parties thereto,
Citibank, as agent, and ABN AMRO Bank N.V. and Morgan
Guaranty Trust Company of New York, as co-agents.
"Extension Date" has the meaning specified in Section
2.16(a).
"Facility A Credit Agreement" means the 364-Day Credit
Agreement dated as of June 30, 1995, among the Company, the
lenders parties thereto, Citibank, as agent, and ABN AMRO
Bank N.V. and Morgan Guaranty Trust Company of New York, as
co-agents, as the same may be amended, supplemented or
otherwise modified from time to time.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized
standing selected by it.
"Fixed Rate Advance" has the meaning specified in
Section 2.03(a)(i), which Advance shall be denominated in
Dollars or in any Foreign Currency.
"Foreign Currency" means any Major Currency or any
Alternate Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under
any Environmental Law.
"Income From Operations" has the meaning specified in
Section 5.02(c).
"Increase Date" has the meaning specified in Section
2.05(e)(i).
"Increasing Lender" has the meaning specified in
Section 2.05(e)(i).
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest and Other Financial Charges" has the meaning
specified in Section 5.02(c).
"Interest Period" means, for each Eurocurrency Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of the
same Competitive Bid Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or LIBO Rate Advance
and ending on the last day of the period selected by the
Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, with respect to
Eurocurrency Rate Advances, each subsequent period
commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period
selected by such Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two,
three or six months and, if available to all Lenders, nine
or twelve months, as the Borrower requesting the Borrowing
may, upon notice received by the Agent not later than
11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select;
provided, however, that:
(i) such Borrower may not select any
Interest Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same
date for Eurocurrency Rate Advances comprising part of
the same Revolving Credit Borrowing or for LIBO Rate
Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if
such extension would cause the last day of such
Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Bank
that shall become a party hereto pursuant to Section 2.05(e)
or Section 2.16 and each Eligible Assignee that shall become
a party hereto pursuant to Section 9.07(a), (b) and (c).
"LIBO Rate" means, for any Interest Period for all LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum
at which deposits in Dollars or in the relevant Foreign
Currency are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period
in an amount substantially equal to the amount that would be
the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit
Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage for such Interest Period. The LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part
of the same Competitive Bid Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance
denominated in Dollars or in any Foreign Currency and
bearing interest based on the LIBO Rate.
"Lien" means any lien, mortgage, pledge, security
interest or other charge or encumbrance of any kind.
"Major Currencies" means lawful currency of the United
Kingdom of Great Britain and Northern Ireland, lawful
currency of the Federal Republic of Germany, lawful currency
of Japan, and lawful currency of the Republic of France.
"Majority Lenders" means at any time Lenders holding at
least 51% of the then aggregate principal amount (based on
the Equivalent in Dollars at such time) of the Revolving
Credit Notes held by Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 51% of
the Commitments.
"Material Adverse Change" means any material adverse
change in the financial condition or results of operations
of the Company and its Consolidated Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse
effect on (a) the financial condition or results of
operations of the Company and its Consolidated Subsidiaries
taken as a whole, (b) the rights and remedies of the Agent
or any Lender under this Agreement or any Note or (c) the
ability of the Borrowers to perform their obligations under
this Agreement or any Note.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a
multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which such Person or any of its ERISA Affiliates
is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single
employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of such Person or any
of its ERISA Affiliates and at least one Person other than
such Person or any of its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its
ERISA Affiliates could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Tangible Assets of the Company and its
Consolidated Subsidiaries", as at any particular date of
determination, means the total amount of assets (less
applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible
or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount
thereof is being computed) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, as set forth in
the most recent balance sheet of the Company and its
Consolidated Subsidiaries and computed in accordance with
GAAP.
"Non-Consenting Lender" has the meaning specified in
Section 2.16(b).
"Note" means a Revolving Credit Note or a Competitive
Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligations" has the meaning specified in Section
7.01(a).
"Payment Office" means, for any Foreign Currency, such
office of Citibank as shall be from time to time selected by
the Agent and notified by the Agent to the Borrowers and the
Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Process Agent" has the meaning specified in Section
9.13(a).
"Public Debt Rating" means, as of any date, the highest
rating that has been most recently announced by either S&P
or Moody's, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the
Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage shall be
determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage
will be set in accordance with Level 4 under the definition
of "Applicable Margin" or "Applicable Percentage", as the
case may be; (c) if the ratings established by S&P and
Moody's shall fall within different levels, the Applicable
Margin and the Applicable Percentage shall be based upon the
higher rating; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as
of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or Moody's, as the case
may be.
"Rating Condition" has the meaning specified in Section
2.05(c)(ii).
"Rating Condition Notice" has the meaning specified in
Section 2.05(c)(ii).
"Reference Banks" means Citibank, ABN AMRO Bank N.V.
and Morgan Guaranty Trust Company of New York.
"Register" has the meaning specified in Section
9.07(d).
"Restricted Property" means (a) any property of the
Company located within the United States of America that, in
the opinion of the Company's Board of Directors, is a
principal manufacturing property or (b) any shares of
capital stock or Debt of any Subsidiary owning any such
property.
"Revolving Credit Advance" means an advance by a Lender
to any Borrower as part of a Revolving Credit Borrowing and
refers to a Base Rate Advance or a Eurocurrency Rate Advance
(each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"Sale and Leaseback Transaction" means any arrangement
with any Person (other than the Company or a Subsidiary of
the Company), or to which any such Person is a party,
providing for the leasing to the Company or to a Subsidiary
of the Company owning Restricted Property for a period of
more than three years of any Restricted Property that has
been or is to be sold or transferred by the Company or such
Subsidiary to such Person, or to any other Person (other
than the Company or a Subsidiary of the Company) to which
funds have been or are to be advanced by such Person on the
security of the leased property. It is understood that
arrangements pursuant to Section 168(f)(8) of the Internal
Revenue Code of 1954, as amended, or any successor provision
having similar effect, are not included within this
definition of "Sale and Leaseback Transaction".
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc.
"Single Employer Plan" of any Person means a single
employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of such Person or any
of its ERISA Affiliates and no Person other than such Person
and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates
could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Termination Date" means the earlier of (a) June 30,
2000, or such later date to which it may be extended
pursuant to Section 2.16, and (b) the date of termination in
whole of the Commitments pursuant to Section 2.05(a) or
Section 6.01 or, if all Lenders elect to terminate their
Commitments as provided therein, Section 2.05(d).
"Threatened" means, with respect to any action, suit,
investigation, litigation or proceeding, a written
communication to the Company or a Designated Subsidiary, as
the case may be, expressing an intention to immediately
bring such action, suit, investigation, litigation or
proceeding.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed, and all
financial computations and determinations pursuant hereto shall
be made, in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(e) ("GAAP");
provided, however, that, if any changes in accounting principles
from those used in the preparation of such financial statements
have been required by the rules, regulations, pronouncements or
opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and have been adopted
by the Company with the agreement of its independent certified
public accountants, the Lenders agree to consider a request by
the Company to amend this Agreement to take account of such
changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Revolving Credit Advances to any Borrower from
time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advance denominated in
a Major Currency on the Equivalent in Dollars on any such
Business Day), not to exceed at any time outstanding such
Lender's Commitment, provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount (based in respect of any
Competitive Bid Advance denominated in a Foreign Currency on the
Equivalent in Dollars at such time) of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate
amount of the Commitments shall be allocated among the Lenders
ratably according to their respective Commitments (such deemed
use of the aggregate amount of the Commitments being a
"Competitive Bid Reduction"). Each Revolving Credit Borrowing
shall be in an aggregate amount not less than $10,000,000 (or the
Equivalent thereof in any Major Currency) or an integral multiple
of $1,000,000 (or the Equivalent thereof in any Major Currency)
in excess thereof and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably
according to their respective Commitments; provided, however,
that if there is no unused portion of the Commitment of one or
more Lenders at the time of any requested Revolving Credit
Borrowing such Borrowing shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lender or
Lenders who do then have an unused portion of their Commitments
ratably according to the unused portion of such Commitments.
Notwithstanding anything herein to the contrary, no Revolving
Credit Borrowing may be made in a Major Currency if, after giving
effect to the making of such Revolving Credit Borrowing, the
Equivalent in Dollars of the aggregate amount of outstanding
Revolving Credit Advances denominated in Major Currencies,
together with the Equivalent in Dollars of the aggregate amount
of outstanding Competitive Bid Advances denominated in Foreign
Currencies, would exceed $110,000,000. Within the limits of each
Lender's Commitment, any Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice,
given not later than (A) 10:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Major
Currency, (B) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting
of Eurocurrency Rate Advances denominated in Dollars or (C) 9:00
A.M. (New York City time) on the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, by any Borrower to the Agent,
which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit
Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed immediately in writing, or telecopier or
telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances, initial Interest Period
and currency for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Agent (i) in the case of a
Revolving Credit Borrowing in Dollars, at its address referred to
in Section 9.02, in same day funds, such Lender's ratable portion
(as determined in accordance with Section 2.01) of such Revolving
Credit Borrowing in Dollars, and (ii) in the case of a Revolving
Credit Borrowing in a Major Currency, at the Payment Office for
such Major Currency as shall have been notified by the Agent to
the Lenders prior thereto, in same day funds, such Lender's
ratable portion (as determined in accordance with Section 2.01)
of such Revolving Credit Borrowing in such Major Currency. After
the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will
make such funds available to the Borrower requesting the
Revolving Credit Borrowing at the Agent's aforesaid address or at
the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, a Borrower may not select Eurocurrency Rate
Advances for any proposed Revolving Credit Borrowing if the
obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.11.
(c) Each Notice of Revolving Credit Borrowing of any
Borrower shall be irrevocable and binding on such Borrower. In
the case of any Revolving Credit Borrowing that the related
Notice of Revolving Credit Borrowing specifies is to be comprised
of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of
any failure by such Borrower to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Credit Advance to
be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure,
is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that
such Lender will not make available to the Agent such Lender's
ratable portion of such Revolving Credit Borrowing, the Agent may
assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the
Borrower proposing such Revolving Credit Borrowing on such date a
corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the
Agent, such Lender and such Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit
Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the
date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the
date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that any Borrower may request Competitive
Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring seven days prior to the Termination Date in the
manner set forth below; provided that, following the making of
each Competitive Bid Borrowing, the aggregate amount (based in
respect of any Advance denominated in a Foreign Currency on the
Equivalent in Dollars on such Business Day) of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any
Competitive Bid Reduction). Notwithstanding anything herein to
the contrary, no Competitive Bid Borrowing may be made in a
Foreign Currency if, after giving effect to the making of such
Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Competitive Bid Advances
denominated in Foreign Currencies, together with the Equivalent
in Dollars of the aggregate amount of outstanding Revolving
Credit Advances denominated in Major Currencies, would exceed
$110,000,000.
(i) Any Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Agent, by telecopier or telex, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying
therein the requested (s) date of such proposed Competitive
Bid Borrowing, (t) aggregate amount of such proposed
Competitive Bid Borrowing, (u) interest rate basis to be
offered by the Lenders, (v) currency of such proposed
Competitive Bid Borrowing, (w) in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, Interest
Period of each Competitive Bid Advance to be made as part of
such Competitive Bid Borrowing, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be
made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring
five days after the date of such Competitive Bid Borrowing
or later than the Termination Date), (x) interest payment
date or dates relating thereto, (y) location of such
Borrower's account to which funds are to be advanced, and
(z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to
the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in its Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (each Advance
comprising any such Competitive Bid Borrowing being referred
to herein as a "Fixed Rate Advance") and that the Advances
comprising such proposed Competitive Bid Borrowing shall be
denominated in Dollars, (B) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing,
if such Borrower shall instead specify in its Notice of
Competitive Bid Borrowing that the Advances comprising such
Competitive Bid Borrowing shall be either Fixed Rate
Advances denominated in any Major Currency or LIBO Rate
Advances denominated in Dollars or any Major Currency and
(C) at least five Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall
instead specify in its Notice of Competitive Bid Borrowing
that the Advances comprising such Competitive Bid Borrowing
shall be either Fixed Rate Advances denominated in an
Alternate Currency or LIBO Rate Advances denominated in an
Alternate Currency. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on such Borrower.
Any Notice of Competitive Bid Borrowing by a Designated
Subsidiary shall be given to the Agent in accordance with
the preceding sentence through the Company on behalf of such
Designated Subsidiary. The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid
Borrowing received by it from such Borrower by sending such
Lender a copy of the related Notice of Competitive Bid
Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower proposing the
Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof
to such Borrower), (A) before 9:30 A.M. (New York City time)
on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances denominated in Dollars, (B) before 10:00 A.M.
(New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of either Fixed Rate
Advances denominated in any Major Currency or LIBO Rate
Advances denominated in Dollars or any Major Currency and
(C) before 10:00 A.M. (New York City time) four Business
Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of either Fixed Rate Advances denominated in an
Alternate Currency or LIBO Rate Advances denominated in an
Alternate Currency, of the minimum amount and maximum amount
of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid
Borrowing (which amounts, or the Equivalent thereof in
Dollars, as the case may be, may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if
the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify
such Borrower of such offer at least 30 minutes before the
time and on the date on which notice of such election is to
be given to the Agent by the other Lenders. If any Lender
shall elect not to make such an offer, such Lender shall so
notify the Agent, before 10:00 A.M. (New York City time) on
the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing; provided
that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive
Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) The Borrower proposing the Competitive Bid
Advance shall, in turn, (A) before 10:30 A.M. (New York City
time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars,
(B) before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of either Fixed Rate Advances denominated in any
Major Currency or LIBO Rate Advances denominated in Dollars
or any Major Currency and (C) before 11:00 A.M. (New York
City time) four Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of either Fixed Rate
Advances denominated in an Alternate Currency or LIBO Rate
Advances denominated in an Alternate Currency, either:
(x) cancel such Competitive Bid Borrowing by
giving the Agent notice to that effect, or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above,
in its sole discretion, by giving notice to the Agent
of the amount of each Competitive Bid Advance (which
amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount,
notified to such Borrower by the Agent on behalf of
such Lender for such Competitive Bid Advance pursuant
to paragraph (ii) above) to be made by each Lender as
part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that
effect; provided, however, that such Borrower shall not
accept any offer in excess of the requested bid amount
for any maturity. Such Borrower shall accept the
offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If
two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to
the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower proposing the Competitive Bid
Borrowing notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above,
the Agent shall give prompt notice thereof to the Lenders
and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower proposing the Competitive Bid
Borrowing accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in turn promptly notify (A) each Lender that has
made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such Competitive Bid Borrowing
and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the
Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Advance to be made by such
Lender as part of such Competitive Bid Borrowing, and
(C) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, upon receipt, that
the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III.
Each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing shall, before
12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received
from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its
Applicable Lending Office to the Agent (x) in the case of a
Competitive Bid Borrowing in Dollars, at its address
referred to in Section 9.02, in same day funds, such
Lender's portion of such Competitive Bid Borrowing in
Dollars, and (y) in the case of a Competitive Bid Borrowing
in a Foreign Currency, at the Payment Office for such
Foreign Currency as shall have been notified by the Agent to
the Lenders prior thereto, in same day funds, such Lender's
portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set
forth in Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to such
Borrower's account at the location specified by such
Borrower in its Notice of Competitive Bid Borrowing.
Promptly after each Competitive Bid Borrowing the Agent will
notify each Lender of the amount of such Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the
dates upon which such Competitive Bid Reduction commenced
and will terminate.
(vi) If the Borrower proposing the Competitive Bid
Borrowing notifies the Agent that it accepts one or more of
the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on such Borrower. Such Borrower
shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure
by such Borrower to fulfill on or before the date specified
in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any
loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount not less than $10,000,000 (or the Equivalent
thereof in any Foreign Currency) or an integral multiple of
$1,000,000 (or the Equivalent thereof in any Foreign Currency) in
excess thereof and, following the making of each Competitive Bid
Borrowing, the Borrower that has borrowed such Competitive Bid
Borrowing shall be in compliance with the limitation set forth in
the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth
in this Section 2.03, any Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (d) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made
within three Business Days of the date of any other Competitive
Bid Borrowing.
(d) Any Borrower that has borrowed through a
Competitive Bid Borrowing shall repay to the Agent for the
account of each Lender that has made a Competitive Bid Advance,
on the maturity date of such Competitive Bid Advance (such
maturity date being that specified by such Borrower for repayment
of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of
such Competitive Bid Advance. Such Borrower shall have no right
to prepay any principal amount of any Competitive Bid Advance
unless, and then only on the terms, specified by such Borrower
for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a
Competitive Bid Borrowing shall pay interest on the unpaid
principal amount of each Competitive Bid Advance comprising such
Competitive Bid Borrowing from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above, as
provided in the Competitive Bid Note evidencing such Competitive
Bid Advance. Upon the occurrence and during the continuance of
an Event of Default under Section 6.01(a), such Borrower shall
pay interest on the amount of unpaid principal of and interest on
each Competitive Bid Advance owing to a Lender, payable in
arrears on the date or dates interest is payable thereon, at a
rate per annum equal at all times to 1% per annum above the rate
per annum required to be paid on such Competitive Bid Advance
under the terms of the Competitive Bid Note evidencing such
Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from
each Competitive Bid Advance made to such Borrower as part of a
Competitive Bid Borrowing shall be evidenced by a separate
Competitive Bid Note of the Borrower payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company
agrees to pay to the Agent for the account of each Lender a
facility fee on the aggregate amount of such Lender's Commitment
from the date hereof in the case of each Initial Lender and from
the effective date specified in the Assumption Agreement or the
Assignment and Acceptance, as the case may be, pursuant to which
it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and
December, commencing September 30, 1995, and on the Termination
Date.
(b) Agent's Fees. The Company shall pay to the Agent
for its own account such fees, and at such times, as set forth in
the letter dated June 6, 1995 between the Company and the Agent.
SECTION 2.05. Termination, Reduction or Increase of
the Commitments. (a) Ratable Termination or Reduction. The
Company shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in an
aggregate amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further
that the aggregate amount of the Commitments of the Lenders shall
not be reduced to an amount that is less than the sum of the
aggregate principal amount of the Competitive Bid Advances
denominated in Dollars then outstanding plus the Equivalent in
Dollars of the aggregate principal amount of the Competitive Bid
Advances denominated in Foreign Currencies then outstanding. The
aggregate amount of the Commitments, once reduced as provided in
this Section 2.05(a), may not be reinstated, except as provided
in Section 2.05(e) below.
(b) Non-Ratable Termination by Assignment. The
Company shall have the right, upon at least ten Business Days'
written notice to the Agent (which shall then give prompt notice
thereof to the relevant Lender), to require any Lender to assign,
pursuant to and in accordance with the provisions of Section
9.07, all of its rights and obligations under this Agreement and
under the Notes to an Eligible Assignee selected by the Company;
provided, however, that (i) no Event of Default shall have
occurred and be continuing at the time of such request and at the
time of such assignment; (ii) the assignee shall have paid to the
assigning Lender the aggregate principal amount of, and any
interest accrued and unpaid to the date of such assignment on,
the Note or Notes of such Lender; (iii) the Company shall have
paid to the assigning Lender any and all facility fees and other
fees payable to such Lender and all other accrued and unpaid
amounts owing to such Lender under any provision of this
Agreement (including, but not limited to, any increased costs or
other additional amounts owing under Section 2.10 and any
indemnification for Taxes under Section 2.13) as of the effective
date of such assignment; and (iv) if the assignee selected by the
Company is not an existing Lender, such assignee or the Company
shall have paid the processing and recordation fee required under
Section 9.07(a) for such assignment; provided further that the
Company shall have no right to replace more than three Lenders in
any calendar year pursuant to this Section 2.05(b); and provided
further that the assigning Lender's rights under Sections 2.10,
2.13 and 9.04, and its obligations under Section 8.05, shall
survive such assignment as to matters occurring prior to the date
of assignment.
(c) Non-Ratable Reduction. (i) The Company shall
have the right, at any time other than during any Rating
Condition, upon at least ten Business Days' notice to a Lender
(with a copy to the Agent), to terminate in whole such Lender's
Commitment (determined without giving effect to any Competitive
Bid Reduction). Such termination shall be effective, (i) with
respect to such Lender's unused Commitment, on the date set forth
in such notice, provided, however, that such date shall be no
earlier than ten Business Days after receipt of such notice and
(ii) with respect to each Advance outstanding to such Lender, on
the last day of the then current Interest Period relating to such
Advance; provided further, however, that such termination shall
not be effective, if, after giving effect to such termination,
the Company would, under this Section 2.05(c), reduce the
Lenders' Commitments in any calendar year by an amount in excess
of the Commitments of any three Lenders or $90,000,000, whichever
is greater on the date of such termination. Notwithstanding the
preceding proviso, the Company may terminate in whole the
Commitment of any Lender in accordance with the terms and
conditions set forth in Section 2.05(b) or 2.16(b). Upon
termination of a Lender's Commitment under this Section 2.05(c),
the Company will pay or cause to be paid all principal of, and
interest accrued to the date of such payment on, Advances owing
to such Lender and pay any facility fees or other fees payable to
such Lender pursuant to the provisions of Section 2.04, and all
other amounts payable to such Lender hereunder (including, but
not limited to, any increased costs or other amounts owing under
Section 2.10 and any indemnification for Taxes under Section
2.13); and upon such payments, the obligations of such Lender
hereunder shall, by the provisions hereof, be released and
discharged; provided, however, that such Lender's rights under
Sections 2.10, 2.13 and 9.04, and its obligations under Section
8.05 shall survive such release and discharge as to matters
occurring prior to such date. The aggregate amount of the
Commitments of the Lenders once reduced pursuant to this Section
2.05(c) may not be reinstated, except pursuant to Section 2.05(e)
below.
(ii) For purposes of this Section 2.05(c) only, the
term "Rating Condition" shall mean a period commencing with
notice (a "Rating Condition Notice") by the Agent to the Company
and the Lenders to the effect that the Agent has been informed
that the rating of the senior public Debt of the Company is
unsatisfactory under the standard set forth in the next sentence,
and ending with notice by the Agent to the Company and the
Lenders to the effect that such condition no longer exists. The
Agent shall give a Rating Condition Notice promptly upon receipt
from the Company or any Lender of notice stating, in effect, that
both of S&P and Moody's (or any successor by merger or
consolidation to the business of either thereof), respectively,
then rate the senior public Debt of the Company lower than BBB
and Baa2. The Company agrees to give notice to the Agent
forthwith upon any change in a rating by either such organization
of the senior public Debt of the Company; the Agent shall have no
duty whatsoever to verify the accuracy of any such notice from
the Company or any Lender or to monitor independently the ratings
of the senior public Debt of the Company and no Lender shall have
any duty to give any such notice. The Agent shall give notice to
the Lenders and the Company as to the termination of a Rating
Condition promptly upon receiving a notice from the Company to
the Agent (which notice the Agent shall promptly notify to the
Lenders) stating that the rating of the senior public Debt of the
Company does not meet the standard set forth in the second
sentence of this clause (ii), and requesting that the Agent
notify the Lenders of the termination of the Rating Condition.
The Rating Condition shall terminate upon the giving of such
notice by the Agent.
(d) Termination by a Lender. In the event that a
Change of Control occurs, each Lender may, by notice to the
Company and the Agent given not later than 50 calendar days after
such Change of Control, terminate its Commitment, which
Commitment shall be terminated effective as of the later of (i)
the date that is 60 calendar days after such Change of Control or
(ii) the end of the Interest Period for any Advance outstanding
at the time of such Change of Control or for any Advance made
pursuant to the next sentence of this Section 2.05(d). Upon the
occurrence of a Change of Control, each Borrower's right to make
a Borrowing under this Agreement shall be suspended for a period
of 60 calendar days, except for Advances having an interest
period ending not later than 90 calendar days after such Change
of Control. A notice of termination pursuant to this Section
2.05(d) shall not have the effect of accelerating any outstanding
Advance of such Lender and the Notes of such Lender.
(e) Increase in Aggregate of the Commitments. (i)
The Company may at any time, by notice to the Agent, propose that
the aggregate amount of the Commitments be increased (such
aggregate amount being, a "Commitment Increase") up to
$150,000,000 in excess of the aggregate of the Commitments as of
the Effective Date, effective as at a date prior to the
Termination Date (the "Increase Date") as to which agreement is
to be reached by an earlier date specified in such notice (the
"Commitment Date"); provided, however, that (A) the Company may
not propose more than five Commitment Increases during each
rolling five-year period that this Agreement is in effect, (B)
the minimum proposed Commitment Increase per notice shall be
$30,000,000, (C) in no event shall the aggregate amount of the
Commitments at any time exceed $525,000,000 and (D) no Default
shall have occurred and be continuing on such Increase Date. The
Agent shall notify the Lenders thereof promptly upon its receipt
of any such notice. The Agent agrees that it will cooperate with
the Company in discussions with the Lenders and other Eligible
Assignees with a view to arranging the proposed Commitment
Increase through the increase of the Commitments of one or more
of the Lenders (each such Lender that is willing to increase its
Commitment hereunder being, an "Increasing Lender") and the
addition of one or more other Eligible Assignees as Assuming
Lenders and as parties to this Agreement; provided, however, that
it shall be in each Lender's sole discretion whether to increase
its Commitment hereunder in connection with the proposed
Commitment Increase; and provided further that the minimum
Commitment of each such Assuming Lender that becomes a party to
this Agreement pursuant to this Section 2.05(e), shall be at
least equal to $10,000,000. If agreement is reached on or prior
to the Commitment Date with any Increasing Lenders and Assuming
Lenders as to a Commitment Increase (which may be less than but
not greater than specified in the applicable notice from the
Company), such agreement to be evidenced by a notice in
reasonable detail from the Company to the Agent on or prior to
the Commitment Date, such Assuming Lenders, if any, shall become
Lenders hereunder as of the Increase Date and the Commitments of
such Increasing Lenders and such Assuming Lenders shall become or
be, as the case may be, as of the Increase Date, the amounts
specified in such notice; provided that:
(x) the Agent shall have received (with copies for
each Lender, including each such Assuming Lender) by no
later than 10:00 A.M. (New York City time) on the Increase
Date (A) an opinion of counsel for the Company in
substantially the form of Exhibit G hereto and an opinion of
counsel for each other Borrower substantially in the form of
Exhibit H hereto, each dated such Increase Date, and (B) a
copy, certified on the Increase Date by the Secretary, an
Assistant Secretary or a comparable official of each
Borrower, of the resolutions adopted by the Board of
Directors of such Borrower authorizing such Commitment
Increase;
(y) each such Assuming Lender shall have delivered to
the Agent, by no later than 10:00 A.M. (New York City time)
on the Increase Date, an appropriate Assumption Agreement in
substantially the form of Exhibit D hereto, duly executed by
such Assuming Lender and the Company; and
(z) each such Increasing Lender shall have delivered
to the Agent by, no later than 10:00 A.M. (New York City
time) on the Increase Date, confirmation in writing
satisfactory to the Agent as to its increased Commitment.
(ii) In the event that the Agent shall have received
notice from the Company as to its agreement to a Commitment
Increase on or prior to the Commitment Date and each of the
actions provided for in clauses (x) through (z) above shall have
occurred prior to 10:00 A.M. (New York City time) on the Increase
Date to the satisfaction of the Agent, the Agent shall notify the
Lenders (including any Assuming Lenders) and the Company of the
occurrence of such Commitment Increase by telecopier, telex or
cable promptly and in any event no later than 1:00 P.M. (New York
City time) on the Increase Date and shall record in the Register
the relevant information with respect to each Increasing Lender
and Assuming Lender. Within five Business Days after its receipt
of such notice from the Agent, each Borrower, at its own expense,
shall execute and deliver to the Agent, Revolving Credit Notes
payable to the order of each Assuming Lender, if any, dated as of
the Increase Date and substantially in the form of Exhibit A-1
hereto. The Agent, upon receipt of such Revolving Credit Notes,
shall promptly deliver such Revolving Credit Notes to the
respective Assuming Lenders.
(iii) In the event that the Agent shall not have
received notice from the Company as to such agreement on or prior
to the Commitment Date or the Company shall, by notice to the
Agent prior to the Increase Date, withdraw its proposal for a
Commitment Increase or any of the actions provided for above in
clauses (i)(x) through (i)(z) shall not have occurred by
10:00 A.M. (New York City time) on the Increase Date, such
proposal by the Company shall be deemed not to have been made.
In such event, any actions theretofore taken under clauses (i)(x)
through (i)(z) above shall be deemed to be of no effect and all
the rights and obligations of the parties shall continue as if no
such proposal had been made.
SECTION 2.06. Repayment of Revolving Credit Advances.
Each Borrower shall repay to the Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding in
respect of such Borrower.
SECTION 2.07. Interest on Revolving Credit Advances.
(a) Scheduled Interest. Each Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing by
such Borrower to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the Base Rate in effect from
time to time, payable in arrears quarterly on the last day
of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be paid
in full.
(ii) Eurocurrency Rate Advances. During such periods
as such Revolving Credit Advance is a Eurocurrency Rate
Advance, a rate per annum equal at all times during each
Interest Period for such Revolving Credit Advance to the sum
of (x) the Eurocurrency Rate for such Interest Period for
such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has
a duration of more than three months, on each day that
occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during
the continuance of an Event of Default under Section 6.01(a),
each Borrower shall pay interest on (i) the unpaid principal
amount of each Revolving Credit Advance owing by such Borrower to
each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all
times to 1% per annum above the rate per annum required to be
paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder
by such Borrower that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such
Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information
for the purpose of determining each Eurocurrency Rate and each
LIBO Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished
by the remaining Reference Banks. The Agent shall give prompt
notice to the Company and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i)
or (ii), and the rate, if any, furnished by each Reference Bank
for the purpose of determining the interest rate under
Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate
Advances, the Majority Lenders notify the Agent that the
Eurocurrency Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurocurrency Rate
Advances for such Interest Period, the Agent shall forthwith so
notify each Borrower and the Lenders, whereupon (i) such
Eurocurrency Rate Advances will (to the extent such Eurocurrency
Rate Advances remain outstanding on such day) automatically, on
the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such
Eurocurrency Rate Advances are denominated in any Major Currency,
be redenominated into an Equivalent amount of Dollars and
Converted into Base Rate Advances, and (ii) the obligation of the
Lenders to make Eurocurrency Rate Advances in the same currency
as such Eurocurrency Rate Advances shall be suspended until the
Agent shall notify each Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit
Borrowing comprised of Eurocurrency Rate Advances, shall fail to
select the duration of the Interest Period for such Eurocurrency
Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will (to the extent such Eurocurrency Rate Advances
remain outstanding on such day) automatically, on the last day of
the then existing Interest Period therefor, (i) if such
Eurocurrency Rate Advances are denominated in Dollars, be
Converted into Base Rate Advances and (ii) if such Eurocurrency
Rate Advances are denominated in any Major Currency, be
redenominated into an Equivalent amount of Dollars and Converted
into Base Rate Advances.
(d) Upon the occurrence and during the continuance of
any Event of Default under Section 6.01(a), (i) each Eurocurrency
Rate Advance will (to the extent such Eurocurrency Rate Advance
remains outstanding on such day) automatically, on the last day
of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Major Currency, be redenominated
into an Equivalent amount of Dollars and Converted into a Base
Rate Advance and (ii) the obligation of the Lenders to make
Eurocurrency Rate Advances shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurocurrency Rate or
LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant
Borrower and the Lenders that the interest rate cannot be
determined for such Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each
such Advance will (to the extent such Eurocurrency Rate
Advance remains outstanding on such day) automatically, on
the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in
Dollars, be Converted into a Base Rate Advance and (B) if
such Eurocurrency Rate Advance is denominated in any Major
Currency, be redenominated into an Equivalent amount of
Dollars and Converted into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make
Eurocurrency Rate Advances or LIBO Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Prepayments of Revolving Credit
Advances. (a) Optional Prepayments. Each Borrower may, upon
notice to the Agent stating the proposed date and aggregate
principal amount of the prepayment, given not later than 11:00
A.M. (New York City time) on the second Business Day prior to the
date of such proposed prepayment, in the case of Eurocurrency
Rate Advances, and not later than 11:00 A.M. (New York City time)
on the day of such proposed prepayment, in the case of Base Rate
Advances, and, if such notice is given, such Borrower shall,
prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing
in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount not less than $10,000,000 or the
Equivalent thereof in a Major Currency (determined on the date
notice of prepayment is given) or an integral multiple of
$1,000,000 or the Equivalent thereof in a Major Currency
(determined on the date notice of prepayment is given) in excess
thereof and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance other than on the last day of the
Interest Period therefor, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to
Section 9.04(c). Each notice of prepayment by a Designated
Subsidiary shall be given to the Administrative Agent through the
Company.
(b) Mandatory Prepayments. (i) If, on any date, the
sum of (A) the aggregate principal amount of all Advances
denominated in Dollars then outstanding plus (B) the Equivalent
in Dollars of the aggregate principal amount of all Advances
denominated in Foreign Currencies then outstanding exceeds 103%
of the aggregate Commitments of the Lenders on such date, the
Company and each other Borrower, if any, shall thereupon promptly
prepay the outstanding principal amount of any Advances owing by
such Borrower in an aggregate amount sufficient to reduce such
sum to an amount not to exceed 100% of the aggregate Commitments
of the Lenders on such date, together with any interest accrued
to the date of such prepayment on the principal amounts prepaid
and, in the case of any prepayment of a Eurocurrency Rate Advance
or a LIBO Rate Advance, any additional amounts which such
Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall
give prompt notice of any prepayment required under this Section
2.09(b)(i) to the Borrowers and the Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in
Dollars of the aggregate principal amount of all Eurocurrency
Rate Advances denominated in Major Currencies then outstanding
plus (B) the Equivalent in Dollars of the aggregate principal
amount of all LIBO Rate Advances denominated in Foreign
Currencies then outstanding, shall exceed $110,000,000, the
Company and each other Borrower shall prepay the outstanding
principal amount of any such Eurocurrency Rate Advances or any
such LIBO Rate Advances owing by such Borrower, on the last day
of the Interest Periods relating to such Advances, in an
aggregate amount sufficient to reduce such sum to an amount not
to exceed $100,000,000, together with any interest accrued to the
date of such prepayment on the principal amounts prepaid. The
Agent shall give prompt notice of any prepayment required under
this Section 2.09(b)(ii) to the Borrowers and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Advances or LIBO
Rate Advances (excluding for purposes of this Section 2.10 any
such increased costs resulting from (i) Taxes or Other Taxes (as
to which Section 2.13 shall govern) and (ii) changes in the basis
of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the
Borrower of such Advances shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to
such Borrower and the Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender (with a copy of such
demand to the Agent), the Company shall pay to the Agent for the
account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender
or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in
capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such amounts
submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable
pursuant to this Section 2.10 shall, upon the written request of
the Company delivered to such Lender and the Agent, assign,
pursuant to and in accordance with the provisions of Section
9.07, all of its rights and obligations under this Agreement and
under the Notes to an Eligible Assignee selected by the Company;
provided, however, that (i) no Default shall have occurred and be
continuing at the time of such request and at the time of such
assignment; (ii) the assignee shall have paid to the assigning
Lender the aggregate principal amount of, and any interest
accrued and unpaid to the date of such assignment on, the Note or
Notes of such Lender; (iii) the Company shall have paid to the
assigning Lender any and all facility fees and other fees payable
to such Lender and all other accrued and unpaid amounts owing to
such Lender under any provision of this Agreement (including, but
not limited to, any increased costs or other additional amounts
owing under this Section 2.10, and any indemnification for Taxes
under Section 2.13) as of the effective date of such assignment
and (iv) if the assignee selected by the Company is not an
existing Lender, such assignee or the Company shall have paid the
processing and recordation fee required under Section 9.07(a) for
such assignment; provided further that the assigning Lender's
rights under Sections 2.10, 2.13 and 9.04, and its obligations
under Section 8.05, shall survive such assignment as to matters
occurring prior to the date of assignment.
SECTION 2.11. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent
that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to
perform its obligations hereunder to make Eurocurrency Rate
Advances in Dollars or any Major Currency or LIBO Rate Advances
in Dollars or in any Foreign Currency or to fund or maintain
Eurocurrency Rate Advances in Dollars or in any Major Currency or
LIBO Rate Advances in Dollars or in any Foreign Currency
hereunder, (i) each such Eurocurrency Rate Advance or such LIBO
Rate Advance, as the case may be, will automatically, upon such
demand, (A) if such Eurocurrency Rate Advance or LIBO Rate
Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth
in Section 2.07(a)(i), as the case may be, (B) if such
Eurocurrency Rate Advance or LIBO Rate Advance is denominated in
any Foreign Currency, be redenominated into an Equivalent amount
of Dollars and Converted into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a)(i),
as the case may be, and (ii) the obligation of the Lenders to
make such Eurocurrency Rate Advances or such LIBO Rate Advances
shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.12. Payments and Computations. (a) Each
Borrower shall make each payment hereunder and under the Notes,
except with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Foreign Currency,
not later than 11:00 A.M. (New York City time) on the day when
due in Dollars to the Agent at its address referred to in Section
9.02 in same day funds. Each Borrower shall make each payment
hereunder and under the Notes with respect to principal of,
interest on, and other amounts relating to Advances denominated
in a Foreign Currency not later than 12:00 Noon (at the Payment
Office for such Foreign Currency) on the day when due in such
Foreign Currency to the Agent in same day funds by deposit of
such funds to the Agent's account maintained at such Payment
Office. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16 or
9.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in
such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves. Upon any Assuming Lender
becoming a Lender hereunder as a result of the effectiveness of a
Commitment Increase pursuant to Section 2.05(e) or an extension
of the Termination Date pursuant to Section 2.16, and upon the
Agent's receipt of such Lender's Assumption Agreement and
recording the information contained therein in the Register, from
and after the Increase Date or the Extension Date, as the case
may be, the Agent shall make all payments hereunder and under the
Notes in respect of the interest assumed thereby to the Assuming
Lender.
(b) All computations of interest based on the Base
Rate and of facility fees shall be made by the Agent on the basis
of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate, the LIBO
Rate or the Federal Funds Rate shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees
are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurocurrency Rate Advances
or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(d) Unless the Agent shall have received notice from
any Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment
in full, the Agent may assume that such Borrower has made such
payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent such Borrower shall not have
so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date
such Lender repays such amount to the Agent, at the Federal Funds
Rate.
SECTION 2.13. Taxes. (a) Any and all payments by any
Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
the Agent, net income taxes imposed by the United States and
taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If any Borrower shall
be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.13) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any
payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto; provided, however, that a Borrower shall
not be obligated to pay any amounts in respect of penalties,
interest or expenses pursuant to this paragraph that are payable
solely as a result of (i) the failure on the part of the
pertinent Lender or the Agent to pay over those amounts received
from the Borrowers under this clause (c) or (ii) the gross
negligence or willful misconduct on the part of the pertinent
Lender or the Agent. This indemnification shall be made within
30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor. Each Lender agrees to provide
reasonably prompt notice to the Agent, the Company and any
Borrower of any imposition of Taxes or Other Taxes against such
Lender; provided that failure to give such notice shall not
affect such Lender's rights to indemnification hereunder. Each
Lender agrees that it will, promptly upon a request by the
Company or a Borrower having made an indemnification payment
hereunder, furnish to the Company or such Borrower, as the case
may be, such evidence as is reasonably available to such Lender
as to the payment of the relevant Taxes or Other Taxes, and that
it will, if requested by the Company or such Borrower, cooperate
with the Company or such Borrower, as the case may be, in its
efforts to obtain a refund or similar relief in respect of such
payment.
(d) Within 30 days after the date of any payment of
Taxes, each Borrower shall furnish to the Agent, at its address
referred to in Section 9.02, the original or a certified copy of
a receipt evidencing payment thereof. In the case of any payment
hereunder or under the Notes by or on behalf of any Borrower
through an account or branch outside the United States or by or
on behalf of any Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in
respect thereof, such Borrower shall furnish, or shall cause such
payor to furnish, to the Agent, at such address, an opinion of
counsel acceptable to the Agent stating that such payment is
exempt from Taxes. For purposes of this subsection (d) and
subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender and on the date of the Assignment and
Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing
by any Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide the Agent and each Borrower with
two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt
from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. In
addition, each Lender further agrees to provide any Borrower with
any form or document as any Borrower may request which is
required by any taxing authority outside the United States in
order to secure an exemption from, or reduction in the rate of,
withholding tax. If the forms provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax
at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at
the date of the Assignment and Acceptance or the Assumption
Agreement, as the case may be, pursuant to which a Lender becomes
a party to this Agreement, such Lender was entitled to payments
under subsection (a) in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent,
the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
applicable with respect to such Lender on such date. If any form
or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to
compute the tax payable and information required on the date
hereof by Internal Revenue Service form 1001 or 4224, that a
Lender reasonably considers to be confidential, such Lender shall
give notice thereof to each Borrower and shall not be obligated
to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has
failed to provide each Borrower with the appropriate form
described in Section 2.13(e) (other than if such failure is due
to a change in law occurring subsequent to the date on which a
form originally was required to be provided, or if such form
otherwise is not required under the first sentence of
subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.13(a) or (c) with respect to
Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes
because of its failure to deliver a form required hereunder, each
Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) If any Borrower is required to pay any additional
amount to any Lender or to the Agent or on behalf of any of them
to any taxing authority pursuant to this Section 2.13, such
Lender shall, upon the written request of the Company delivered
to such Lender and the Agent, assign, pursuant to and in
accordance with the provisions of Section 9.07, all of its rights
and obligations under this Agreement and under the Notes to an
Eligible Assignee selected by the Company; provided, however,
that (i) no Default shall have occurred and be continuing at the
time of such request and at the time of such assignment; (ii) the
assignee shall have paid to the assigning Lender the aggregate
principal amount of, and any interest accrued and unpaid to the
date of such assignment on, the Note or Notes of such Lender;
(iii) the Company shall have paid to the assigning Lender any and
all facility fees and other fees payable to such Lender and all
other accrued and unpaid amounts owing to such Lender under any
provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section
2.10, and any indemnification for Taxes under this Section 2.13)
as of the effective date of such assignment; and (iv) if the
assignee selected by the Company is not an existing Lender, such
assignee or the Company shall have paid the processing and
recordation fee required under Section 9.07(a) for such
assignment; provided further that the assigning Lender's rights
under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05, shall survive such assignment as to matters
occurring prior to the date of assignment.
SECTION 2.14. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) on account of
the Revolving Credit Advances owing to it (other than pursuant to
Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16 or 9.04(c)) in
excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total
amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of
such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the
Advances shall be available (and each Borrower agrees that it
shall use such proceeds) solely for working capital and for other
general corporate purposes of such Borrower and its Subsidiaries,
including, without limitation, backstop of commercial paper.
SECTION 2.16. Extension of Termination Date. (a) At
least 60 (but no earlier than 90) days prior to each anniversary
date hereof and provided no Event of Default has occurred and is
continuing, the Company may, at its option, by written notice to
the Agent, request that the Lenders extend for an additional one
year the Termination Date then in effect. Each Lender, in its
sole discretion, shall consent or not consent to such extension
and shall notify the Agent of its consent or nonconsent to such
extension within 20 Business Days of notice of such request from
the Agent. If all of the Lenders consent in writing, the then
applicable Termination Date shall, effective as at such
anniversary date (the "Extension Date"), be extended for one
year.
(b) If not all of the Lenders consent, pursuant to
subsection (a) of this Section 2.16, to an extension of the
Termination Date then in effect (the Lenders so consenting in
writing being the "Consenting Lenders", and any Lender not so
consenting being a "Non-Consenting Lender"), the Company may:
(i) arrange for one or more Consenting Lenders or
other Eligible Assignees as Assuming Lenders to assume,
effective on the Extension Date, any Non-Consenting Lender's
Commitment and all of the obligations of such Lender under
this Agreement thereafter arising, and effective on such
Extension Date, each such Consenting Lender or such Assuming
Lender will be substituted for such Non-Consenting Lender
under this Agreement; provided, however, that the amount of
the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than
$10,000,000; provided further that (i) any such Consenting
Lender or Assuming Lender shall have paid to such Non-
Consenting Lender the aggregate principal amount of, and any
interest accrued and unpaid to the date of the assignment
on, the Note or Notes of such Non-Consenting Lender; (ii)
the Company shall have paid to such Non-Consenting Lender
any and all facility fees and other fees payable to such Non-
Consenting Lender and all other accrued and unpaid amounts
owing to such Non-Consenting Lender under any provision of
this Agreement (including, but not limited to, any increased
costs or other additional amounts owing under Section 2.10,
and any indemnification for Taxes under this Section 2.13)
as of the effective date of such assignment; and (iii) with
respect to any such Assuming Lender, such Assuming Lender or
the Company shall have paid the applicable processing and
recordation fee required under Section 9.07(a) for such
assignment; provided further that such Non-Consenting
Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of
substitution; provided further that, on or prior to the
tenth day prior to the Extension Date, (x) any such Assuming
Lender shall have delivered to the Company and the Agent an
Assumption Agreement in substantially the form of Exhibit D
hereto, duly executed by such Assuming Lender, such Non-
Consenting Lender and the Company, (y) any such Consenting
Bank shall have delivered confirmation in writing
satisfactory to the Agent as to its increased Commitment and
(z) each Non-Consenting Lender being replaced pursuant to
this clause (i) shall have delivered to the Agent the
Revolving Credit Note or Notes held by such Non-Consenting
Lender; and provided further that each Borrower, at its own
expense, shall have executed and delivered to the Agent no
later than 10:00 A.M. (New York City time) on the Extension
Date, Revolving Credit Notes payable to the order of each
Assuming Lender, if any, dated as of the Extension Date and
substantially in the form of Exhibit A-1 hereto; or
(ii) subject to the giving of notice to such Non-
Consenting Lender at least four days prior to the Extension
Date, pay, prepay or cause to be prepaid, on and effective
as of the Extension Date, all principal of, and interest
accrued to the date of such payment on, Advances and all
other amounts owing to such Non-Consenting Lender hereunder
(including, but not limited to, any increased costs or other
additional amounts owing under Section 2.10 and any
indemnification for Taxes under Section 2.13) and terminate
in whole any Non-Consenting Lender's Commitment,
notwithstanding the provisions of Section 2.05; and, upon
such payment or prepayment, the obligations of such Non-
Consenting Lender hereunder shall, by the provisions hereof,
be released and discharged; provided, however, that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and
9.04, and its obligations under Section 8.05 shall survive
such release and discharge as to matters occurring prior to
the Extension Date.
(c) In the event that, on or prior to the then
applicable Extension Date, all Non-Consenting Lenders shall have
been superseded by Consenting Lenders or Assuming Lenders or
shall have had their Commitments terminated pursuant to
subsection (b)(i) or (b)(ii) above, the Termination Date then in
effect shall be extended for the additional one-year period as
described in subsection (a) above, each Non-Consenting Lender
shall have no further Commitment hereunder, and each Assuming
Lender, if any, shall thereafter be substituted as a party to
this Agreement and be a Lender for the purposes of this
Agreement, without any further acknowledgment by or the consent
of the Lenders. The Agent shall thereupon promptly deliver the
new Revolving Credit Notes to the respective Assuming Lenders and
record in the Register the relevant information with respect to
each Consenting Lender and each such Assuming Lender.
(d) In the event that (x) as to a Non-Consenting
Lender, neither procedure contemplated by subsection (b)(i) or
(b)(ii) above is implemented in a timely basis or (y) the Company
shall, by written notice to the Agent at least four days prior to
the Extension Date, withdraw its request for the extension of the
Termination Date then in effect, such request by the Company
shall be deemed not to have been made, all actions theretofore
taken under subsection (b)(i) or (b)(ii) above shall be deemed to
be of no effect, the Agent shall return any Revolving Credit
Notes received from any Non-Consenting Lender to such Non-
Consenting Lender and all the rights and obligations of the
parties shall continue as if no such request had been made.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement
shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse
Change since December 31, 1994.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or to the knowledge of the Company
Threatened before any court, governmental agency or
arbitrator that (i) is reasonably likely to have a Material
Adverse Effect, other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports
to affect the legality, validity or enforceability of this
Agreement or any Note of the Company or the consummation of
the transactions contemplated hereby, and there shall have
been no adverse change in the status, or financial effect on
the Company or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto.
(c) The Company shall have paid all accrued fees and
expenses of the Agent and the Lenders (as agreed to in the
letter dated June 6, 1995 from the Agent to the Company).
(d) On the Effective Date, the following statements
shall be true and the Agent shall have received a
certificate signed by a duly authorized officer of the
Company, dated the Effective Date, stating that:
(i) The representations and warranties
contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(e) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form
and substance satisfactory to the Agent:
(i) The Revolving Credit Notes of the
Company to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of
the Board of Directors of the Company approving this
Agreement and the Notes of the Company, and of all
documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to
this Agreement and such Notes.
(iii) A certificate of the Secretary or
an Assistant Secretary of the Company certifying the
names and true signatures of the officers of the
Company authorized to sign this Agreement and the Notes
of the Company and the other documents to be delivered
hereunder.
(iv) Authenticated copies of the Certificate
of Incorporation and By-Laws of the Company.
(v) Evidence of the termination of the
Existing Facility A Credit Agreement and the Existing
Facility B Credit Agreement, and payment of all amounts
owing thereunder.
(vi) A favorable opinion of Victor P.
Patrick, Assistant General Counsel of the Company,
substantially in the form of Exhibit G hereto and as to
such other matters as any Lender through the Agent may
reasonably request.
(vii) A favorable opinion of Shearman &
Sterling, counsel for the Agent, substantially in the
form of Exhibit I hereto.
(viii) Such other approvals, opinions or
documents as any Lender, through the Agent, may
reasonably request.
SECTION 3.02. Initial Loan to Each Designated
Subsidiary. The obligation of each Lender to make an initial
Advance to each Designated Subsidiary following any designation
of such Designated Subsidiary as a Borrower hereunder pursuant to
Section 9.08 is subject to the Agent's receipt on or before the
date of such Initial Advance of each of the following, in form
and substance satisfactory to the Agent and dated such date, and
(except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(a) The Revolving Credit Notes of such Borrower to the
order of the Lenders, respectively.
(b) Certified copies of the resolutions of the Board
of Directors of such Borrower (with a certified English
translation if the original thereof is not in English)
approving this Agreement and the Notes of such Borrower, and
of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this
Agreement and such Notes.
(c) A certificate of the Secretary or an Assistant
Secretary of such Borrower certifying the names and true
signatures of the officers of such Borrower authorized to
sign this Agreement and the Notes of such Borrower and the
other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer
of the Company, dated as of the date of such Initial
Advance, certifying that such Borrower shall have obtained
all governmental and third party authorizations, consents,
approvals (including exchange control approvals) and
licenses required under applicable laws and regulations
necessary for such Borrower to execute and deliver this
Agreement and the Notes and to perform its obligations
thereunder.
(e) The Designation Letter of such Designated
Subsidiary, substantially in the form of Exhibit E hereto.
(f) Evidence of the Process Agent's acceptance of its
appointment pursuant to Section 9.13(a) as the agent of such
Borrower, substantially in the form of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated
Subsidiary, dated the date of such Initial Advance,
substantially in the form of Exhibit H hereto.
(h) Such other approvals, opinions or documents as any
Lender, through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving
Credit Borrowing. The obligation of each Lender to make a
Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing (a) the following statements shall be
true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing and the acceptance by the Borrower
requesting such Revolving Credit Borrowing of the proceeds of
such Revolving Credit Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties of the Company
contained in Section 4.01 (except the representations set
forth in the last sentence of subsection (e) thereof and in
subsections (f), (h)-(l) and (n) thereof) are correct on and
as of the date of such Revolving Credit Borrowing, before
and after giving effect to such Revolving Credit Borrowing
and to the application of the proceeds therefrom, as though
made on and as of such date, and additionally, (A) if such
Revolving Credit Borrowing shall have been requested by a
Designated Subsidiary, the representations and warranties of
such Designated Subsidiary contained in its Designation
Letter are correct on and as of the date of such Revolving
Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
and (B) if such Revolving Credit Borrowing results in
incremental outstanding Advances or is the initial Revolving
Credit Borrowing of the Company, the representations set
forth in the last sentence of subsection (e) and in
subsections (f), (h)-(l) and (n) of Section 4.01 are correct
on and as of the date of such Revolving Credit Borrowing,
before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default;
and (b) the Agent shall have received such other approvals,
opinions or documents as any Lender through the Agent may
reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory
Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior
to such Competitive Bid Borrowing, the Agent shall have received
a Competitive Bid Note payable to the order of such Lender and
substantially in the form of Exhibit A-2 hereto for each of the
one or more Competitive Bid Advances to be made by such Lender as
part of such Competitive Bid Borrowing, in a principal amount
equal to the principal amount of the Competitive Bid Advance to
be evidenced thereby and otherwise on such terms as were agreed
to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the
giving of the applicable Notice of Competitive Bid Borrowing and
the acceptance by the Borrower requesting such Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall
constitute a representation and warranty by such Borrower that on
the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties of the Company
contained in Section 4.01 (except the representations set
forth in the last sentence of subsection (e) thereof and in
subsections (f), (h)-(l) and (n) thereof) are correct on and
as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to
the application of the proceeds therefrom, as though made on
and as of such date, and, if such Competitive Bid Borrowing
shall have been requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary
contained in its Designation Letter are correct on and as of
the date of such Competitive Bid Borrowing, before and after
giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and
as of such date,
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default, and
(c) no event has occurred and no circumstance exists
as a result of which the information concerning such
Borrower that has been provided to the Agent and each Lender
by such Borrower in connection herewith would include an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained
therein, in the light of the circumstances under which they
were made, not misleading,
and (iv) the Agent shall have received such other approvals,
opinions or documents as any Lender through the Agent may
reasonably request.
SECTION 3.05. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior
to the date that the Company, by notice to the Lenders,
designates as the proposed Effective Date, specifying its
objection thereto. The Agent shall promptly notify the Lenders
of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Company represents and warrants as follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(b) The execution, delivery and performance by the
Company of this Agreement and the Notes of the Company, and
the consummation of the transactions contemplated hereby,
are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not and
will not cause or constitute a violation of any provision of
law or regulation or any provision of the Certificate of
Incorporation or By-Laws of the Company or result in the
breach of, or constitute a default or require any consent
under, or result in the creation of any lien, charge or
encumbrance upon any of the properties, revenues, or assets
of the Company pursuant to, any indenture or other agreement
or instrument to which the Company is a party or by which
the Company or its property may be bound or affected.
(c) No authorization, consent, approval (including any
exchange control approval), license or other action by, and
no notice to or filing or registration with, any
governmental authority, administrative agency or regulatory
body or any other third party is required for the due
execution, delivery and performance by the Company of this
Agreement or the Notes of the Company.
(d) This Agreement has been, and each of the Notes
when delivered hereunder will have been, duly executed and
delivered by the Company. This Agreement is, and each of
the Notes of the Company when delivered hereunder will be,
the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their
respective terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally.
(e) The Consolidated balance sheet of the Company and
its Consolidated Subsidiaries as at December 31, 1994, and
the related Consolidated statements of income and cash flows
of the Company and its Consolidated Subsidiaries for the
fiscal year then ended (together with the notes to the
financial statements of the Company and its Consolidated
Subsidiaries and the Consolidated statements of cash flows
of the Company and its Consolidated Subsidiaries),
accompanied by an opinion of one or more nationally
recognized firms of independent public accountants, copies
of which have been furnished to each Lender, are materially
complete and correct, and fairly present the Consolidated
financial condition of the Company and its Consolidated
Subsidiaries as at such date and the Consolidated results of
the operations of the Company and its Consolidated
Subsidiaries for the period ended on such date, all in
accordance with GAAP consistently applied, except as
otherwise noted therein; the Company and its Consolidated
Subsidiaries do not have on such date any material
contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except
as referred to or reflected or provided for in such balance
sheet or the notes thereto as at such date. Since December
31, 1994, there has been no Material Adverse Change.
(f) There is no action, suit, investigation,
litigation or proceeding, including, without limitation, any
Environmental Action, pending or to the knowledge of the
Company Threatened affecting the Company or any of its
Subsidiaries before any court, governmental agency or
arbitrator that (i) is reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation), or
(ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby, and
there has been no adverse change in the status, or financial
effect on the Company or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b)
hereto.
(g) The Company is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(h) The Company and each wholly-owned direct
Subsidiary of the Company have, in the aggregate, met their
minimum funding requirements under ERISA with respect to
their Plans in all material respects and have not incurred
any material liability to the PBGC, other than for the
payment of premiums, in connection with such Plans.
(i) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan of the Company or any
of its ERISA Affiliates that has resulted in or is reasonably
likely to result in a material liability of the Company or any of
its ERISA Affiliates.
(j) The Schedules B (Actuarial Information) to the
1993 annual reports (Form 5500 Series) with respect to each Plan
of the Company or any of its ERISA Affiliates, copies of which
have been filed with the Internal Revenue Service (and which will
be furnished to any Bank through the Administrative Agent upon
the request of such Bank through the Administrative Agent to the
Company), are complete and accurate in all material respects and
fairly present in all material respects the funding status of
such Plans at such date, and since the date of each such Schedule
B there has been no material adverse change in funding status.
(k) Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any
Withdrawal Liability to any Multiemployer Plan in an annual
amount exceeding 6% of Net Tangible Assets of the Company and its
Consolidated Subsidiaries.
(l) Neither the Company nor any of its ERISA
Affiliates has been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA. No
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title
IV of ERISA, in a reorganization or termination which might
reasonably be expected to result in a liability of the Company in
an amount in excess of $5,000,000.
(m) The Company is not, and immediately after the
application by the Company of the proceeds of each Loan will not
be, (a) an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (b) a "holding
company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(n) To the best of the Company's knowledge, the
operations and properties of the Company and its
Subsidiaries taken as a whole comply in all material
respects with all Environmental Laws, all necessary
Environmental Permits have been applied for or have been
obtained and are in effect for the operations and properties
of the Company and its Subsidiaries and the Company and its
Subsidiaries are in compliance in all material respects with
all such Environmental Permits. To the best of the
Company's knowledge no circumstances exist that would be
reasonably likely to form the basis of an Environmental
Action against the Company or any of its Subsidiaries or any
of their properties that could have a Material Adverse
Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each
Designated Subsidiary to comply with all applicable laws,
rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental
Laws as provided in Section 5.01(j), if failure to comply
with such requirements would have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each Designated Subsidiary to pay and discharge, all
taxes, assessments and governmental charges or levies
imposed upon it or on its income or profits or upon any of
its property; provided, however, that neither the Company
nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause
each Designated Subsidiary to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Company or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each Designated Subsidiary
to preserve and maintain, its corporate existence and all
its material rights (charter and statutory) privileges and
franchises; provided, however, that the Company and each
Designated Subsidiary may consummate any merger,
consolidation or sale of assets permitted under
Section 5.02(b).
(e) Visitation Rights. At any reasonable time and
from time to time, permit the Agent or any of the Lenders or
any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of
account of, and visit the properties of, the Company and any
Designated Subsidiary, and to discuss the affairs, finances
and accounts of the Company and any Designated Subsidiary
with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each Designated
Subsidiary to keep, proper books of record and account, in
which full and correct entries shall be made of all
financial transactions and the assets and business of the
Company and each Designated Subsidiary in accordance with
generally accepted accounting principles in effect from time
to time.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each Designated Subsidiary to maintain
and preserve, all of its properties that are used or useful
in the conduct of its business in good working order and
condition, ordinary wear and tear excepted; provided,
however, that neither the Company nor any of its Designated
Subsidiaries shall be required to maintain or preserve any
property if the failure to maintain or preserve such
property shall not have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Agent
(with a copy for each Lender) and the Agent shall promptly
forward the same to the Lenders:
(i) as soon as available and in any event
within 60 days after the end of each of the first three
quarters of each fiscal year of the Company, a
Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter
and a Consolidated statement of income and cash flows
of the Company and its Consolidated Subsidiaries for
the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, setting
forth in each case in comparative form the
corresponding figures as of the corresponding date and
for the corresponding period of the preceding fiscal
year, all in reasonable detail and certified by the
principal financial officer, principal accounting
officer, the Vice-President and Treasurer or an
Assistant Treasurer of the Company, subject, however,
to year-end auditing adjustments, which certificate
shall include a statement that such officer has no
knowledge, except as specifically stated, of any
condition, event or act which constitutes a Default.
Simultaneously therewith, the Company shall furnish a
calculation, in reasonable detail, as at the end of the
respective fiscal quarter, demonstrating compliance
with Section 5.02(c);
(ii) as soon as available and in any event
within 120 days after the end of each fiscal year of
the Company, a Consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end
of such fiscal year and the related Consolidated
statements of income and cash flows of the Company and
its Consolidated Subsidiaries for such fiscal year
setting forth in each case in comparative form the
corresponding figures as of the close of and for the
preceding fiscal year, all in reasonable detail and
accompanied by an opinion of independent public
accountants of nationally recognized standing, as to
said financial statements and a certificate of the
principal financial officer, principal accounting
officer, the Vice-President and Treasurer or an
Assistant Treasurer of the Company stating that such
officer has no knowledge, except as specifically
stated, of any condition, event or act which
constitutes a Default. Simultaneously therewith, the
Company shall furnish a calculation, in reasonable
detail, as at the end of each such fiscal year,
demonstrating compliance with Section 5.02(c);
(iii) copies of the Forms 8-K and 10-K
reports (or similar reports) which the Company is
required to file with the Securities and Exchange
Commission of the United States of America, promptly
after the filing thereof;
(iv) copies of each annual report, quarterly
report, special report or proxy statement mailed to
substantially all of the stockholders of the Company,
promptly after the mailing thereof to the stockholders;
(v) immediate notice of the occurrence of
any Default of which the principal financial officer,
principal accounting officer, the Vice-President and
Treasurer or an Assistant Treasurer of the Company
shall have knowledge;
(vi) as soon as available and in any event
within 15 days after the Company or any of its ERISA
Affiliates knows or has reason to know that any ERISA
Event has occurred, a statement of a senior officer of
the Company with responsibility for compliance with the
requirements of ERISA describing such ERISA Event and
the action, if any, which the Company or such ERISA
Affiliate proposes to take with respect thereto;
(vii) at the request of any Lender,
promptly after the filing thereof with the Internal
Revenue Service, copies of Schedule B (Actuarial
Information) to each annual report (Form 5500 series)
filed by the Company or any of its ERISA Affiliates
with respect to each Plan;
(viii) promptly after receipt thereof by
the Company or any of its ERISA Affiliates, copies of
each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to
administer any Plan;
(ix) promptly after such request, such other
documents and information relating to any Plan as any
Lender may reasonably request from time to time;
(x) promptly and in any event within five
Business Days after receipt thereof by the Company or
any of its ERISA Affiliates from the sponsor of a
Multiemployer Plan, copies of each notice concerning
(A) (x) the imposition of Withdrawal Liability in an
amount in excess of $5,000,000 with respect to any one
Multiemployer Plan or in an aggregate amount in excess
of $25,000,000 with respect to all such Multiemployer
Plans within any one calendar year or (y) the
reorganization or termination, within the meaning of
Title IV of ERISA, of any Multiemployer Plan that has
resulted or might reasonably be expected to result in
Withdrawal Liability in an amount in excess of
$5,000,000 or of all such Multiemployer Plans that has
resulted or might reasonably be expected to result in
Withdrawal Liability in an aggregate amount in excess
of $25,000,000 within any one calendar year and (B) the
amount of liability incurred, or that may be incurred,
by the Company or any of its ERISA Affiliates in
connection with any event described in such subclause
(x) or (y);
(xi) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the
Borrower or any Designated Subsidiary of the type
described in Section 4.01(f); and
(xii) from time to time such further
information respecting the financial condition and
operations of the Company and its Subsidiaries as any
Lender may from time to time reasonably request.
(i) Authorizations. Obtain, and cause each Designated
Subsidiary to obtain, at any time and from time to time all
authorizations, licenses, consents or approvals (including
exchange control approvals) as shall now or hereafter be
necessary or desirable under applicable law or regulations
in connection with its making and performance of this
Agreement and, upon the request of any Lender, promptly
furnish to such Lender copies thereof.
(j) Compliance with Environmental Laws. Comply, and
cause each of its Subsidiaries and all lessees and other
Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental
Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries
to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however,
that neither the Company nor any of its Subsidiaries shall
be required to undertake any such cleanup, removal, remedial
or other action to the extent that its obligation to do so
is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect
to such circumstances.
(k) Change of Control. If a Change of Control shall
occur, within ten calendar days after the occurrence
thereof, provide the Agent with notice thereof, describing
therein in reasonable detail the facts and circumstances
giving rise to such Change in Control.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company will not:
(a) Liens, Etc. Issue, assume or guarantee, or permit
any of its Subsidiaries owning Restricted Property to issue,
assume or guarantee, any Debt secured by Liens on or with
respect to any Restricted Property without effectively
providing that its obligations to the Lenders under this
Agreement and any of the Notes shall be secured equally and
ratably with such Debt so long as such Debt shall be so
secured, except that the foregoing shall not apply to:
(i) Liens affecting property of the Company
or any of its Subsidiaries existing on the Effective
Date in effect as of the date hereof or of any
corporation existing at the time it becomes a
Subsidiary of the Company or at the time it is merged
into or consolidated with the Company or a Subsidiary
of the Company;
(ii) Liens on property of the Company or its
Subsidiaries existing at the time of acquisition
thereof or incurred to secure the payment of all or
part of the purchase price thereof or to secure Debt
incurred prior to, at the time of or within 24 months
after acquisition thereof for the purpose of financing
all or part of the purchase price thereof;
(iii) Liens on property of the Company or
its Subsidiaries (in the case of property that is, in
the opinion of the Board of Directors of the Company,
substantially unimproved for the use intended by the
Company) to secure all or part of the cost of
improvement thereof, or to secure Debt incurred to
provide funds for any such purpose;
(iv) Liens which secure only Debt owing by a
Subsidiary of the Company to the Company or to another
Subsidiary of the Company;
(v) Liens in favor of the United States of
America, any State, any foreign country, or any
department, agency, instrumentality, or political
subdivisions of any such jurisdiction, to secure
partial, progress, advance or other payments pursuant
to any contract or statute or to secure any Debt
incurred for the purpose of financing all or any part
of the purchase price or cost of constructing or
improving the property subject thereto, including,
without limitation, Liens to secure Debt of the
pollution control or industrial revenue bond type; or
(vi) any extension, renewal or replacement
(or successive extensions, renewals or replacements),
in whole or in part, of any Lien referred to in the
foregoing clauses (i) to (v) inclusive of any Debt
secured thereby, provided that the principal amount of
Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such
extension, renewal or replacement, and that such
extension, renewal or replacement Lien shall be limited
to all or part of the property which secured the Lien
extended, renewed or replaced (plus improvements on
such property);
provided, however, that, the Company and any one or more
Subsidiaries owning Restricted Property may issue, assume or
guarantee Debt secured by Liens which would otherwise be
subject to the foregoing restrictions in an aggregate
principal amount which, together with the aggregate
outstanding principal amount of all other Debt of the
Company and its Subsidiaries owning Restricted Property that
would otherwise be subject to the foregoing restrictions
(not including Debt permitted to be secured under clause (i)
through (vi) above) and the aggregate value of the Sale and
Leaseback Transactions in existence at such time, does not
at any one time exceed 10% of the Net Tangible Assets of the
Company and its Consolidated Subsidiaries; and provided
further that the following type of transaction, among
others, shall not be deemed to create Debt secured by Liens:
Liens required by any contract or statute in order to permit
the Company or any of its Subsidiaries to perform any
contract or subcontract made by it with or at the request of
the United States of America, any foreign country or any
department, agency or instrumentality of any of the
foregoing jurisdictions.
(b) Mergers, Etc. Merge or consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to, any Person; provided, however, that
the Company may merge or consolidate with any other Person
so long as the Company is the surviving corporation and so
long as no Default shall have occurred and be continuing at
the time of such proposed transaction or would result
therefrom.
(c) Interest Coverage. At any time, permit the ratio
of: (i) aggregate Income From Operations (excluding the
amortization of goodwill and intangible assets and including
income from securities purchased to invest the Company's
cash position and cash distributions from any Person whose
results have been accounted for by the equity method) for
the four most recent fiscal quarters for which Consolidated
statements of income have been delivered pursuant to clauses
(i) or (ii) of Section 5.01(h) to (ii) aggregate Interest
and Other Financial Charges (including the amortization of
debt discount and excluding interest for tax audit
assessments) for such four most recent fiscal quarters to be
less than 2 to 1. For purposes hereof, the terms "Income
From Operations" and "Interest and Other Financial Charges"
shall be determined for the Company and its Consolidated
Subsidiaries in accordance with GAAP as provided for in
Section 1.03.
(d) Indebtedness of Domestic Subsidiaries. Permit the
amount of Debt incurred by its Domestic Subsidiaries to
exceed $500,000,000; provided, however, that the following
shall not be included in determining compliance with the
covenant contained in the preceding sentence:
(i) Debt of a Domestic Subsidiary of the
Company owed to the Company or another Subsidiary of
the Company;
(ii) Debt existing on the Effective Date (the
"Existing Debt"), and any Debt extending the maturity
of, or renewing or replacing (or successive extensions,
renewals or replacements), in whole or in part, such
Debt; and
(iii) Debt incurred by a Domestic
Subsidiary of the Company prior to the date it became a
Subsidiary of the Company (and any extension, renewal
or replacement (or successive extensions, renewals or
replacements) in whole of in part thereof).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) Any Borrower shall fail to pay: (i) any principal
of any Advance when the same becomes due and payable; (ii)
any facility fees or any interest on any Advance payable
under this Agreement or any Note within three Business Days
after the same becomes due and payable; or (iii) any other
fees or other amounts payable under this Agreement or the
Notes within 30 days after the same becomes due and payable
other than those fees and amounts the liabilities for which
are being contested in good faith by such Borrower and which
have been placed in Escrow by such Borrower; or
(b) Any representation or warranty made (or deemed
made) by any Borrower (or any of its officers) in connection
with this Agreement or by any Designated Subsidiary in the
Designation Letter pursuant to which such Designated
Subsidiary became a Borrower hereunder shall prove to have
been incorrect in any material respect when made (or deemed
made); or
(c) The Company shall repudiate its obligations under,
or shall default in the due performance or observance of,
any term, covenant or agreement contained in Article VII of
this Agreement; or
(d) (i) The Company shall fail to perform or observe
any other term, covenant or agreement contained in Section
5.02(a) or (c) and such failure shall remain unremedied for
a period of 30 days after any Lender shall have given notice
thereof to the Company (through the Agent), or (ii) the
Company or any other Borrower shall fail to perform or to
observe any other term, covenant or agreement contained in
this Agreement on its part to be performed or observed and
such failure shall remain unremedied for a period of 30 days
after any Lender shall have given notice thereof to the
relevant Borrower or, in the case of the Company, any of the
principal financial officer, the principal accounting
officer, the Vice-President and Treasurer or an Assistant
Treasurer of the Company, and in the case of any other
Borrower,a responsible officer of such Borrower, first has
knowledge of such failure; or
(e) (i) The Company or any of its Consolidated or
Designated Subsidiaries shall fail to pay any principal of
or premium or interest on any Debt (other than Debt owed to
the Company or its Subsidiaries or Affiliates) that is
outstanding in a principal amount of at least $25,000,000 in
the aggregate (but excluding Debt outstanding hereunder) of
the Company or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement
or instrument relating to such Debt, or (ii) any other event
shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration
of, the maturity of such Debt, or (iii) any such Debt shall
be declared to be due and payable, or required to be prepaid
or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated
maturity thereof; provided, however, that, for purposes of
this Section 6.0l(e), in the case of (x) Debt of any Person
(other than the Company or one of its Consolidated
Subsidiaries) which the Company has guaranteed and (y) Debt
of Persons (other than the Company or one of its
Consolidated Subsidiaries) the payment of which is secured
by a Lien on property of the Company or such Subsidiary,
such Debt shall be deemed to have not been paid when due or
to have been declared to be due and payable only when the
Company or such Subsidiary, as the case may be, shall have
failed to pay when due any amount which it shall be
obligated to pay with respect to such Debt; provided
further, however, that any event or occurrence described in
this subsection (e) shall not be an Event of Default if (A)
such event or occurrence relates to the Debt of any
Subsidiary of the Company located in China, India, the
Commonwealth of Independent States or Turkey (collectively,
the "Exempt Countries"), (B) such Debt is not guaranteed or
supported in any legally enforceable manner by any Borrower
or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such event or occurrence
is due to the direct or indirect action of any government
entity or agency in any Exempt Country and (D) as of the
last day of the calendar quarter immediately preceding such
event or occurrence, the book value of the assets of such
Subsidiary does not exceed $80,000,000 and the aggregate
book value of the assets of all Subsidiaries of the Company
located in Exempt Countries the Debt of which would cause an
Event of Default to occur but for the effect of this proviso
does not exceed $300,000,000; or
(f) The Company or any of its Designated or
Consolidated Subsidiaries shall generally not pay its debts
as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Company or
any such Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period
of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the
Company or any such Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in
this subsection (f); provided, however, that any event or
occurrence described in this subsection (f) shall not be an
Event of Default if (A) such event or occurrence relates to
any Subsidiary of the Company located in an Exempt Country,
(B) the Debt of such Subsidiary is not guaranteed or
supported in any legally enforceable manner by any Borrower
or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such event or occurrence
is due to the direct or indirect action of any government
entity or agency in any Exempt Country and (D) as of the
last day of the calendar quarter immediately preceding such
event or occurrence, the book value of the assets of such
Subsidiary does not exceed $80 million and the aggregate
book value of the assets of all Subsidiaries of the Company
located in Exempt Countries with respect to which the
happening of the events or occurrences described in this
subsection (f) would cause an Event of Default to occur but
for the effect of this proviso does not exceed $300,000,000;
or
(g) Any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against the Company
or any of its Subsidiaries and enforcement proceedings shall
have been commenced by any creditor upon such judgment or
order and there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not
be in effect; provided, however, that any such judgment or
order shall not be an Event of Default under this
Section 6.01(g) if (A) such judgment or order is rendered
against any Subsidiary of the Company located in an Exempt
Country, (B) the Debt of such Subsidiary is not guaranteed
or supported in any legally enforceable manner by any
Borrower or by any Subsidiary or Affiliate of the Company
located outside the Exempt Countries, (C) such judgment or
order is due to the direct or indirect action of any
government entity or agency in any Exempt Country and (D) as
of the last day of the calendar quarter immediately
preceding the tenth consecutive day of the stay period
referred to above, the book value of the assets of such
Subsidiary does not exceed $80,000,000 and the aggregate
book value of the assets of all Subsidiaries of the Company
located in Exempt Countries the judgments and orders against
which would cause an Event of Default to occur but for the
effect of this proviso does not exceed $300,000,000; or
(h) Any non-monetary judgment or order shall be
rendered against the Company or any of its Subsidiaries that
is reasonably likely to have a Material Adverse Effect, and
enforcement proceedings shall have been commenced by any
Person upon such judgment or order and there shall be any
period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) Any license, consent, authorization or approval
(including exchange control approvals) now or hereafter
necessary to enable the Company or any Designated Subsidiary
to comply with its obligations herein or under the Notes of
such Borrower shall be modified, revoked, withdrawn,
withheld or suspended; or
(j) (i) Any ERISA Event shall have occurred with
respect to a Plan of any Borrower or any of its ERISA
Affiliates and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans of the
Borrowers and their ERISA Affiliates with respect to which
an ERISA Event shall have occurred and then exist (or the
liability of the Borrowers and their ERISA Affiliates
related to such ERISA Event) exceeds $25,000,000; or (ii)
any Borrower or any of its ERISA Affiliates shall be in
default, as defined in Section 4219(c)(5) of ERISA, with
respect to any payment of Withdrawal Liability and the sum
of the outstanding balance of such Withdrawal Liability and
the outstanding balance of any other Withdrawal Liability
that any Borrower or any of its ERISA Affiliates has
incurred exceeds 6% of Net Tangible Assets of the Company
and its Consolidated Subsidiaries; or (iii) any Borrower or
any of its ERISA Affiliates shall have been notified by the
sponsor of a Multiemployer Plan of such Borrower or any of
its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the
Borrowers and their ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount
exceeding $25,000,000; or
(k) Any "Event of Default" (as defined in the Facility
A Credit Agreement) shall have occurred and be continuing
under the Facility A Credit Agreement,
then, and (i) in any such event (except as provided in clause
(ii) below), the Agent (A) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Company,
declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and
(B) shall at the request, or may with the consent, of the
Majority Lenders, by notice to the Company, declare the Notes,
all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes,
all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly
waived by the Borrowers and (ii) in the case of the occurrence of
any Event of Default described in clause (i) or (ii) of Section
6.01(a), the Agent shall, at the request, or may with the
consent, of the Lenders which have made or assumed under this
Agreement at least 66-2/3% of the aggregate principal amount
(based in respect of Competitive Bid Advances denominated in
Foreign Currencies on the Equivalent in Dollars on the date of
such request) of Competitive Bid Advances then outstanding and to
whom such Advances are owed, by notice to the Company, declare
the full unpaid principal of and accrued interest on all
Competitive Bid Advances hereunder and all other obligations of
the Borrowers hereunder to be immediately due and payable,
whereupon such Advances and such obligations shall be immediately
due and payable, without presentment, demand, protest or other
further notice of any kind, all of which are hereby expressly
waived by the Borrowers; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to
any Borrower under the United States Bankruptcy Code of 1978, as
amended, (x) the obligation of each Lender to make Advances shall
automatically be terminated and (y) the Notes, all such interest
and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the
Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to
induce each Lender to make Advances to the Designated
Subsidiaries and to induce the Agent to act hereunder, the
Company hereby unconditionally and irrevocably guarantees to each
Lender and the Agent that:
(a) the principal of and interest on each Advance to
each Designated Subsidiary shall be promptly paid in full
when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms hereof, and, in case
of any extension of time of payment, in whole or in part, of
such Advance, that all such sums shall be promptly paid when
due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms of such extension;
and
(b) all other amounts payable hereunder by any
Designated Subsidiary to any Lender or the Agent shall be
promptly paid in full when due in accordance with the terms
hereof (the obligations of the Designated Subsidiaries under
these subsections (a) and (b) of this Section 7.01 being the
"Obligations").
In addition, the Company hereby unconditionally and irrevocably
agrees that upon default in the payment when due (whether at
stated maturity, by acceleration or otherwise) of any principal
of, or interest on, any Advance to any Designated Subsidiary or
such other amounts payable by any Designated Subsidiary to any
Lender or the Agent, the Company will forthwith pay the same,
without further notice or demand.
SECTION 7.02. Guarantee Absolute. The Company
guarantees that the Obligations will be paid strictly in
accordance with the terms of this Agreement, regardless of any
law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any
Lender or the Agent with respect thereto. The liability of the
Company under this guarantee shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of this
Agreement or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to
departure from this Agreement (including, without
limitation, any extension of the Termination Date pursuant
to Section 2.16 and any Commitment Increase pursuant to
Section 2.05(e));
(c) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guaranty, for all or any
of the Obligations; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Company, any Borrower or a guarantor.
This guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by any of
the Lenders or the Agent upon the insolvency, bankruptcy or
reorganization of the Company or any Borrower or otherwise, all
as though such payment had not been made.
SECTION 7.03. Waivers. The Company hereby expressly
waives diligence, presentment, demand for payment, protest, any
requirement that any right or power be exhausted or any action be
taken against any Designated Subsidiary or against any other
guarantor of all or any portion of the Advances, and all other
notices and demands whatsoever.
SECTION 7.04. Remedies. Each of the Lenders and the
Agent may pursue its respective rights and remedies under this
Article VII and shall be entitled to payment hereunder
notwithstanding any other guarantee of all or any part of the
Advances to the Designated Subsidiaries, and notwithstanding any
action taken by any such Lender or the Agent to enforce any of
its rights or remedies under such other guarantee, or any payment
received thereunder. The Company hereby irrevocably waives any
claim or other right that it may now or hereafter acquire against
any Designated Subsidiary that arises from the existence,
payment, performance or enforcement of the Company's obligations
under this Article VII, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or
remedy of the Agent or the Lenders against any Designated
Subsidiary, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the
Designated Subsidiary, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right. If any amount
shall be paid to the Company in violation of the preceding
sentence at any time when all the Obligations shall not have been
paid in full, such amount shall be held in trust for the benefit
of the Lenders and the Agent and shall forthwith be paid to the
Agent for its own account and the accounts of the respective
Lenders to be credited and applied to the Obligations, whether
matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Obligations or
other amounts payable under this Agreement thereafter arising.
The Company acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this
Agreement and that the waiver set forth in this section is
knowingly made in contemplation of such benefits.
SECTION 7.05. No Stay. The Company agrees that, as
between (a) the Company and (b) the Lenders and the Agent, the
Obligations of any Designated Subsidiary guaranteed by the
Company hereunder may be declared to be forthwith due and payable
as provided in Article VI hereof for purposes of this Article VII
by declaration to the Company as guarantor notwithstanding any
stay, injunction or other prohibition preventing such declaration
as against such Designated Subsidiary and that, in the event of
such declaration to the Company as guarantor, such Obligations
(whether or not due and payable by such Designated Subsidiary),
shall forthwith become due and payable by the Company for
purposes of this Article VII.
SECTION 7.06. Survival. This guarantee is a
continuing guarantee and shall (a) remain in full force and
effect until payment in full (after the Termination Date) of the
Obligations and all other amounts payable under this guaranty,
(b) be binding upon the Company, its successors and assigns, (c)
inure to the benefit of and be enforceable by each Lender
(including each Assuming Lender and each assignee Lender pursuant
to Section 9.07) and the Agent and their respective successors,
transferees and assigns and (d) shall be reinstated if at any
time any payment to a Lender or the Agent hereunder is required
to be restored by such Lender or the Agent. Without limiting the
generality of the foregoing clause (c), each Lender may assign or
otherwise transfer its interest in any Advance to any other
person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to
such Lender herein or otherwise.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender
hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders and all holders of Notes; provided,
however, that the Agent shall not be required to take any action
that exposes the Agent to personal liability or that is contrary
to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the
Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it
or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent:
(a) may treat the payee of any Note as the holder thereof until
the Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (b) may consult with legal counsel (including
counsel for the Company), independent public accountants and
other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in
or in connection with this Agreement; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on
the part of any Borrower or to inspect the property (including
the books and records) of any Borrower; (e) shall not be
responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (f) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopier, telegram or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect
to its Commitment, the Advances made by it and the Note issued to
it, Citibank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage
in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if
Citibank were not the Agent and without any duty to account
therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by a Borrower),
ratably according to the respective principal amounts of the
Revolving Credit Notes then held by each of them (or if no
Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their
Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the
Agent is not reimbursed for such expenses by a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign
at any time by giving written notice thereof to the Lenders and
the Borrower and may be removed at any time with or without cause
by the Majority Lenders. The Company may at any time, by notice
to the Agent, propose a successor Agent (which shall meet the
criteria described below) specified in such notice and request
that the Lenders be notified thereof by the Agent with a view to
their removal of the Agent and their appointment of such
successor Agent; the Agent agrees to forward any such notice to
the Lenders promptly upon its receipt by the Agent. Upon any
such resignation or removal, the Majority Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Majority Lenders, and shall have
accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be
a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Revolving Credit Notes,
nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders, do any of the following: (a) increase the
Commitments of the Lenders other than as provided for in
Section 2.05(e) or subject the Lenders to any additional
obligations, (b) reduce the principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable
hereunder, (c) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder (other than as permitted
by Section 2.16 to the extent any Lender consents thereunder),
(d) release the Company from any of its obligations under Article
VII or (e) require the duration of an Interest Period to be nine
or twelve months if such period is not available to all Lenders;
and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed (return receipt requested), telecopied, telegraphed,
telexed or delivered, if to the Company or to any Designated
Subsidiary, at the Company's address at 101 Columbia Road,
Morristown, New Jersey 07962-1219, Attention: Assistant
Treasurer; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the
Assumption Agreement or the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at
399 Park Avenue, New York, New York 10043, Attention: Bank Loan
Syndication, with a copy to One Court Square, Seventh Floor,
Zone 1, Long Island City, New York 11120, Attention: Bank Loan
Syndication; or, as to any Borrower or the Agent, at such other
address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice
to the Company and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications
to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the
part of any Lender or the Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company
agrees to pay on demand all costs and expenses of the Agent in
connection with the administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (i) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and
audit expenses and (ii) the reasonable fees and expenses of
counsel for the Agent with respect thereto. The Company further
agrees to pay on demand all costs and expenses of the Agent and
the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Agent and each Lender in connection
with the enforcement of rights under this Section 9.04(a).
(b) Each Borrower agrees to indemnify and hold
harmless the Agent and each Lender and each of their Affiliates
and their officers, directors, employees, agents and advisors
(each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense
of, any investigation, litigation or proceeding arising out of,
related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances whether or not such
investigation, litigation or proceeding is brought by the
Company, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent any
such claim, damage, loss, liability or expense has resulted from
such Indemnified Party's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of,
any Eurocurrency Rate Advance or LIBO Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.03(d), 2.05(b),
2.09(a) or (b), 2.11 or 2.16, acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in Sections 2.10, 2.13 and
9.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes and the
termination in whole of any Commitment hereunder.
SECTION 9.05. Right of Set-off. Upon (a) the
occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Agent to declare the
Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Borrower
against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement and the Note of such
Borrower held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees
promptly to notify the relevant Borrower after any such set-off
and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and
inure to the benefit of each Borrower, the Agent and each Lender
and their respective successors and assigns, except that no
Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the
Lenders.
SECTION 9.07. Assignments and Participations. (a)
Each Lender may at any time, with notice to the Company prior to
making any proposal to any potential assignee and with the
consent of the Company, which consent shall not be unreasonably
withheld (and shall at any time, if requested to do so by the
Company pursuant to Section 2.05(b), 2.10 or 2.13) assign to one
or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Credit Advances owing to
it and the Revolving Credit Note or Notes held by it); provided,
however, that (i) the Company's consent shall not be required (A)
in the case of an assignment to an Affiliate of such Lender,
provided that notice thereof shall have been given to the Company
and the Agent, or (B) in the case of an assignment of the type
described in subsection (g) below; (ii) each such assignment
shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement (other than any right
to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes); (iii) except in the case of an
assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof; (iv) each such assignment shall be to an Eligible
Assignee; and (v) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,000 and, if the
assigning Lender is not retaining a Commitment hereunder, any
Revolving Credit Note subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto,
provided, however, that such assigning Lender's rights under
Sections 2.10, 2.13 and 9.04, and its obligations under Section
8.05, shall survive such assignment as to matters occurring prior
to the effective date of such assignment).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or any other instrument or
document furnished pursuant hereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the
performance or observance by such Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated
to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, together with any Revolving Credit
Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the Company and to each other Borrower. Within five Business
Days after its receipt of such notice, each Borrower, at its own
expense, shall execute and deliver to the Agent a new Revolving
Credit Note to the order of such Eligible Assignee. Each such
new Revolving Credit Note or Notes shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company, each other Borrower, the
Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for
inspection by the Company, any other Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more
banks or other entities (other than the Company or any of its
Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Company and the other Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Company, any other Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation and (vi) within 30 days of the effective date
of such participation, such Lender shall provide notice of such
participation to the Company.
(f) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 9.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Company or any Borrower furnished to such Lender by or on behalf
of such Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any confidential
information relating to such Borrower received by it from such
Lender.
(g) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a)
Designation. The Company may at any time, and from time to time,
by delivery to the Agent of a Designation Letter duly executed by
the Company and the respective Subsidiary and substantially in
the form of Exhibit E hereto, designate such Subsidiary as a
"Designated Subsidiary" for purposes of this Agreement and such
Subsidiary shall thereupon become a "Designated Subsidiary" for
purposes of this Agreement and, as such, shall have all of the
rights and obligations of a Borrower hereunder. The Agent shall
promptly notify each Lender of each such designation by the
Company and the identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in
full of all of the indebtedness, liabilities and obligations
under this Agreement and the Notes of any Designated Subsidiary
then, so long as at the time no Notice of Revolving Credit
Borrowing or Notice of Competitive Bid Borrowing in respect of
such Designated Subsidiary is outstanding, such Subsidiary's
status as a "Designated Subsidiary" shall terminate upon notice
to such effect from the Agent to the Lenders (which notice the
Agent shall give promptly upon its receipt of a request therefor
from the Company). Thereafter, the Lenders shall be under no
further obligation to make any Advance hereunder to such
Designated Subsidiary.
SECTION 9.09. Confidentiality. Each of the Lenders
and the Agent hereby agrees that it will use reasonable efforts
(e.g., procedures substantially comparable to those applied by
such Lender or the Agent in respect of non-public information as
to the business of such Lender or the Agent) to keep confidential
any financial reports and other information from time to time
supplied to it by the Company hereunder to the extent that such
information is not and does not become publicly available and
which the Company indicates at the time is to be treated
confidentially, provided, however, that nothing herein shall
affect the disclosure of any such information (i) by the Agent to
any Lender, (ii) to the extent required by law (including
statute, rule, regulation or judicial process), (iii) to counsel
for any Lender or the Agent or to their respective independent
public accountants, (iv) to bank examiners and auditors and
appropriate government examining authorities, (v) to the Agent or
any other Lender, (vi) in connection with any litigation to which
any Lender or the Agent is a party, (vii) to actual or
prospective assignees and participants as contemplated by
Section 9.07(f) or (viii) to any Affiliate of the Agent or any
Lender or to such Affiliate's officers, directors, employees,
agents and advisors, provided that, prior to any such disclosure,
such Affiliate or such Affiliate's officers, directors,
employees, agents or advisors, as the case may be, shall agree to
preserve the confidentiality of any confidential information
relating to the Company received by it; a determination by a
Lender or the Agent as to the application of the circumstances
described in the foregoing clauses (i)-(viii) being conclusive if
made in good faith; and each of the Lenders and the Agent agrees
that it will follow procedures which are intended to put any
transferee of such confidential information on notice that such
information is confidential.
SECTION 9.10. Mitigation of Yield Protection. Each
Lender hereby agrees that, commencing as promptly as practicable
after it becomes aware of the occurrence of any event giving rise
to the operation of Section 2.10(a), 2.11 or 2.13 with respect to
such Lender, such Lender will give notice thereof through the
Agent to the respective Borrower. A Borrower may at any time, by
notice through the Agent to any Lender, request that such Lender
change its Applicable Lending Office as to any Advance or Type of
Advance or that it specify a new Applicable Lending Office with
respect to its Commitment and any Advance held by it or that it
rebook any such Advance with a view to avoiding or mitigating the
consequences of an occurrence such as described in the preceding
sentence, and such Lender will use reasonable efforts to comply
with such request unless, in the opinion of such Lender, such
change or specification or rebooking is inadvisable or might have
an adverse effect, economic or otherwise, upon it, including its
reputation. In addition, each Lender agrees that, except for
changes or specifications or rebookings required by law or
effected pursuant to the preceding sentence, if the result of any
change or change of specification of Applicable Lending Office or
rebooking would, but for this sentence, be to impose additional
costs or requirements upon the respective Borrower pursuant to
Section 2.10(a), Section 2.11 or Section 2.13 (which would not be
imposed absent such change or change of specification or
rebooking) by reason of legal or regulatory requirements in
effect at the time thereof and of which such Lender is aware at
such time, then such costs or requirements shall not be imposed
upon such Borrower but shall be borne by such Lender. All
expenses incurred by any Bank in changing an Applicable Lending
Office or specifying another Applicable Lending Office of such
Lender or rebooking any Advance in response to a request from a
Borrower shall be paid by such Borrower. Nothing in this Section
9.10 (including, without limitation, any failure by a Lender to
give any notice contemplated in the first sentence hereof) shall
limit, reduce or postpone any obligations of the respective
Borrower under Section 2.10(a), Section 2.11 or Section 2.13,
including any obligations payable in respect of any period prior
to the date of any change or specification of a new Applicable
Lending Office or any rebooking of any Advance.
SECTION 9.11. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 9.12. Execution in Counterparts. This
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
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each Designated
Subsidiary hereby agrees that service of process in any such
action or proceeding brought in the any such New York State court
or in such federal court may be made upon CT Corporation System
at its offices at 1633 Broadway, New York, New York 10019 (the
"Process Agent") and each Designated Subsidiary hereby
irrevocably appoints the Process Agent its authorized agent to
accept such service of process, and agrees that the failure of
the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon.
Each Borrower hereby further irrevocably consents to the service
of process in any action or proceeding in such courts by the
mailing thereof by any parties hereto by registered or certified
mail, postage prepaid, to such Borrower at its address specified
pursuant to Section 9.02. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that any party may
otherwise have to serve legal process in any other manner
permitted by law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
To the extent that each Designated Subsidiary has or hereafter
may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, each
Designated Subsidiary hereby irrevocably waives such immunity in
respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 9.14. Waiver of Jury Trial. Each Borrower,
the Agent and each Lender hereby irrevocably waive all right to
trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating
to this Agreement or the Notes or the actions of the Agent or any
Lender in the negotiation, administration, performance or
enforcement thereof.
SECTION 9.15. Final Agreement. This written agreement
represents the full and final agreement between the parties with
respect to the matters addressed herein and supercedes all prior
communications, written or oral, with respect thereto. There are
no unwritten agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
ALLIEDSIGNAL INC.
By: /s/ Richard F. Wallman
-------------------------
Name: Richard F. Wallman
Title: Senior Vice President and
Chief Financial Officer
CITIBANK, N.A.,
as Agent
By: /s/ Robert D. Wetrus
-----------------------
Name: Robert D. Wetrus
Title: Vice President
ABN AMRO BANK N.V.,
NEW YORK BRANCH,
as Co-Agent
By: /s/ John W. Deegan
-----------------------
Name: John W. Deegan
Title: Vice President
By: /s/ David W. Stack
-----------------------
Name: David W. Stack
Title: Assistant Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
as Co-Agent
By: /s/ Penelope J.B. Cox
------------------------
Name: Penelope J.B. Cox
Title: Vice President
COMMITMENT: THE LENDERS:
$23,000,000 ABN AMRO BANK N.V.,
NEW YORK BRANCH
By: /s/ John W. Deegan
---------------------
Name: John W. Deegan
Title: Vice President
By: /s/ David W. Stack
---------------------
Name: David W. Stack
Title: Assistant Vice President
$17,000,000 BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ R.L. Wennekamp
-----------------------
Name: R.L. Wennekamp
Title: Senior Vice President
$17,000,000 BANK OF MONTREAL
By: /s/ Thruston W. Pettus
---------------------------
Name: Thruston W. Pettus
Title: Director
$17,000,000 BANQUE NATIONALE DE PARIS,
NEW YORK
By: /s/ Robert S. Taylor, Jr.
-----------------------------
Name: Robert S. Taylor, Jr.
Title: Senior Vice President
By: /s/ Richard L. Sted
-----------------------------
Name: Richard L. Sted
Title: Senior Vice President
COMMITMENT: THE LENDERS:
$17,000,000 CIBC INC.
By: /s/ Christopher P. Kleczkowski
----------------------------------
Name: Christopher P. Kleczkowski
Title: Vice President
$17,000,000 CHEMICAL BANK
By: /s/ James B. Treger
-------------------------
Name: James B. Treger
Title: Vice President
$23,000,000 CITIBANK, N.A.
By: /s/ Mary W. Corkran
-------------------------
Name: Mary W. Corkran
Title: Vice President
$17,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Colin T. Taylor
------------------------
Name: Colin T. Taylor
Title: Director
By: /s/ Iain Stewart
------------------------
Name: Iain Stewart
Title: Assistant Vice President
COMMITMENT: THE LENDERS:
$17,000,000 MELLON BANK, N.A.
By: /s/ Caroline R. Walsh
--------------------------
Name: Caroline R. Walsh
Title: Assistant Vice President
$17,000,000 MIDLAND BANK PLC,
NEW YORK BRANCH
By: /s/ Rochelle Forster
-------------------------
Name: Rochelle Forster
Title: Authorized Signatory
$23,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Penelope J.B. Cox
---------------------------
Name: Penelope J.B. Cox
Title: Vice President
$17,000,000 NATIONAL WESTMINSTER BANK
PLC
(joint commitment) (NEW YORK BRANCH)
By: /s/ Jordan R. Fragiacomo
-----------------------------
Name: Jordan R. Fragiacomo
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH)
By: /s/ Jordan R. Fragiacomo
-----------------------------
Name: Jordan R. Fragiacomo
Title: Vice President
COMMITMENT: THE LENDERS:
$17,000,000 NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Scott A. Jackson
--------------------------
Name: Scott A. Jackson
Title: Vice President
$17,000,000 ROYAL BANK OF CANADA
By: /s/ Michael Korine
---------------------------
Name: Michael Korine
Title: Senior Manager
$17,000,000 THE BANK OF NEW YORK
By: /s/ Russell S. Gorman
---------------------------
Name: Russell S. Gorman
Title: Vice President
$17,000,000 THE BANK OF TOKYO TRUST
COMPANY
By: /s/ Paul P. Malecki
--------------------------
Name: Paul P. Malecki
Title: Vice President
$17,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ Robert Dunbar
-------------------------
Name: Robert Dunbar
Title: Vice President
COMMITMENT: THE LENDERS:
$17,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Judith L. Mayberry
---------------------------
Name: Judith L. Mayberry
Title: Vice President
$17,000,000 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ John V. Veltri
-------------------------
Name: John V. Veltri
Title: Senior Vice President
$17,000,000 THE TORONTO-DOMINION BANK
By: /s/ Lisa Allison
-------------------------
Name: Lisa Allison
Title: Manager Credit Administration
$17,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /s/ James P. Kelleher
-------------------------
Name: James P. Kelleher
Title: Assistant Vice President
By: /s/ Daniel H. Perron
-------------------------
Name: Daniel H. Perron
Title: Vice President
$375,000,000 TOTAL OF COMMITMENTS
SCHEDULE I
APPLICABLE LENDING OFFICES
Eurocurrency
Name of Initial Lender Domestic Lending Lending Office
ABN AMRO BANK, N.V., ABN AMRO Bank N.V. ABN AMRO Bank N.V.
NEW YORK BRANCH 500 Park Avenue 500 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Melissa Jeter Attn: Melissa Jeter
Phone: (212) 446-4224 Phone: (212) 446-4224
Fax: (212) 832-7468 Fax: (212) 832-7468
BANK OF AMERICA Bank of America National Bank of America National
NATIONAL TRUST AND Trust and Savings Trust and Savings
SAVINGS ASSOCIATION Association Association
1850 Gateway Boulevard 1850 Gateway Boulevard
Concord, CA 94520 Concord, CA 94520
Attn: Liz Taylor Attn: Liz Taylor
Phone: (510) 675-8243 Phone: (510) 675-8243
Fax: (510) 675-7531 Fax: (212) 675-7531
BANK OF MONTREAL Bank of Montreal Bank of Montreal
430 Park Avenue 430 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Maggie Gaglin Attn: Maggie Gaglin
Phone: (212) 605-1436 Phone: (212) 605-1436
Fax: (212) 605-1525 Fax: (212) 605-1525
BANQUE NATIONALE DE Banque Nationale de Paris, Banque Nationale de Paris,
PARIS, NEW YORK New York Branch New York Branch
499 Park Avenue 499 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Robert S. Taylor Attn: Robert S. Taylor
Phone: (212) 415-9713 Phone: (212) 415-9713
Fax: (212) 415-9606 Fax: (212) 415-9606
CANADIAN IMPERIAL Canadian Imperial Bank Canadian Imperial Bank
BANK OF COMMERCE of Commerce of Commerce
425 Lexington Avenue 425 Lexington Avenue
New York, NY 10017 New York, NY 10017
Attn: Dean Criares Attn: Dean Criares
Phone: (212) 856-3780 Phone: (212) 856-3780
Fax: (212) 856-3991 Fax: (212) 856-3991
CHEMICAL BANK Chemical Bank Chemical Bank
Transportation Group Transportation Group
270 Park Avenue, 270 Park Avenue,
5th Floor 5th Floor
New York, NY 10017 New York, NY 10017
Attn: James Treger Attn: James Treger
Phone: (212) 270-2567 Phone: (212) 270-2567
Fax: (212) 270-7138 Fax: (212) 270-7138
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Attn: Michael Mandracchia Attn: Michael Mandracchia
Phone: (212) 559-3245 Phone: (212) 559-3245
Fax: (212) 826-2371 Fax: (212) 826-2371
DEUTSCHE BANK AG Deutsche Bank AG Deutsche Bank AG
NEW YORK AND/OR New York Branch Cayman Islands Branch
CAYMAN ISLANDS 31 West 52nd Street 31 West 52nd Street
BRANCHES New York, NY 10019 New York, NY 10019
Attn: Colin T. Taylor Attn: Colin T. Taylor
Phone: (212) 474-7904 Phone: (212) 474-7904
Fax: (212) 474-8212 Fax: (212) 474-8212
MELLON BANK, N.A. Mellon Bank, N.A. Mellon Bank, N.A.
3 Mellon Bank Center 3 Mellon Bank Center
#153-2302 #153-2302
Pittsburgh, PA 15259 Pittsburgh, PA 15259
Attn: Jacqueline Lucas Attn: Jacqueline Lucas
Phone: (412) 234-8285 Phone: (412) 234-8285
Fax: (412) 236-2027 Fax: (412) 236-2027
MIDLAND BANK PLC, Midland Bank PLC, Midland Bank PLC,
NEW YORK BRANCH New York Branch New York Branch
140 Broadway 140 Broadway
New York, NY 10005-1196 New York, NY 10005-1196
Attn: Maria Pina Attn: Maria Pina
Phone: (212) 658-2777 Phone: (212) 658-2777
Fax: (212) 658-1184 Fax: (212) 658-1184
MORGAN GUARANTY Morgan Guaranty Trust Morgan Guaranty Trust
TRUST COMPANY OF Company of New York Company of New York
NEW YORK 60 Wall Street 60 Wall Street
New York, NY 10260-0060 New York, NY 10260-0060
Attn:Credit Administration Attn:Credit Administration
Phone: (212) 648-6974 Phone: (212) 648-6974
Fax: (212) 648-5021 Fax: (212) 648-5021
NATIONAL WESTMINSTER National Westminster National Westminster
BANK PLC (NEW YORK Bank Plc (New York Branch) Bank Plc (Nassau Branch)
BRANCH) 175 Water Street, 175 Water Street,
19th Floor 19th Floor
NATIONALWESTMINSTER New York, NY 10038 New York, NY 10038
BANK PLC (NASSAU Attn: Jordan Fragiacomo Attn: Jordan Fragiacomo
BRANCH) Phone: (212) 602-4231 Phone: (212) 602-4231
Fax: (212) 602-4500 Fax: (212) 602-4500
NATIONSBANK, N.A. NationsBank, N.A. NationsBank, N.A.
(CAROLINAS) (Carolinas) (Carolinas)
101 North Tryon Street 101 North Tryon Street
15th Floor 15th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Carole Greene Attn: Carol Greene
Phone: (704) 386-8389 Phone: (704) 386-8389
Fax: (704) 386-8694 Fax: (704) 386-8694
ROYAL BANK OF CANADA Royal Bank of Canada Royal Bank of Canada
1 Financial Square 1 Financial Square
New York, NY 10005-3531 New York, NY 10005-3531
Attn: Jewel Haines Attn: Jewel Haines
Phone: (212) 428-6321 Phone: (212) 428-6321
Fax: (212) 809-2372 Fax: (212) 809-2372
THE BANK OF NEW YORK The Bank of New York The Bank of New York
1 Wall Street - 22nd Floor 1 Wall Street - 22nd Floor
New York, NY 10286 New York, NY 10286
Attn: Terry Blackburn Attn: Terry Blackburn
Phone: (212) 635-6787 Phone: (212) 635-6787
Fax: (212) 635-6397 Fax: (212) 635-6397
THE BANK OF TOKYO The Bank of Tokyo The Bank of Tokyo
TRUST COMPANY Trust Company Trust Company
1251 Avenue of the Americas 1251 Avenue of the Americas
12th Floor 12th Floor
New York, NY 10116-3138 New York, NY 10116-3138
Attn: National Banking Attn: National Banking
Department Department
Phone: (212) 782-4300 Phone: (212) 782-4300
Fax: (212) 782-6445 Fax: (212) 782-6445
THE CHASE MANHATTAN The Chase Manhattan The Chase Manhattan
BANK, N.A. Bank, N.A. Bank, N.A.
1 Chase Manhattan Plaza 1 Chase Manhattan Plaza
5th Floor 5th Floor
New York, NY 10081 New York, NY 10081
Attn: Edward McNulty Attn: Edward McNulty
Phone: (212) 552-5070 Phone: (212) 552-5070
Fax: (212) 552-1457 Fax: (212) 552-1457
THE FIRST NATIONAL BANK The First National Bank The First National Bank
OF CHICAGO of Chicago of Chicago
One First National Plaza One First National Plaza
Chicago, IL 60670 Chicago, IL 60670
Attn: Ben Oliva Attn: Ben Oliva
Phone: (312) 732-5987 Phone: (312) 732-5987
Fax: (312) 732-4840 Fax: (312) 732-4840
THE INDUSTRIAL BANK The Industrial Bank of The Industrial Bank of
OF JAPAN TRUST Japan Trust Company Japan Trust Company
COMPANY 245 Park Avenue 245 Park Avenue
New York, NY 10167-0037 New York, NY 10167-0037
Attn: Mark O'Connor Attn: Mark O'Connor
Phone: (212) 309-6621 Phone: (212) 309-6621
Fax: (212) 856-9450 Fax: (212) 856-9450
(212) 692-9075 (212) 692-9075
THE TORONTO-DOMINION The Toronto-Dominion Bank The Toronto-Dominion Bank
BANK 909 Fannin-Suite 1700 909 Fannin-Suite 1700
Houston, TX 77010 Houston, TX 77010
Attn: Lisa Allison Attn: Lisa Allison
Phone: (713) 653-8244 Phone: (713) 653-8244
Fax: (713) 951-9921 Fax: (713) 951-9921
UNION BANK OF Union Bank of Switzerland, Union Bank of Switzerland,
SWITZERLAND, New York Branch New York Branch
NEW YORK BRANCH 299 Park Avenue 299 Park Avenue
New York, NY 10171 New York, NY 10171
Attn: Peter B. Yearley Attn: Peter B. Yearley
Phone: (212) 821-3339 Phone: (212) 821-3339
Fax: (212) 821-3259 Fax: (212) 821-3259
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
None
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF
BORROWER], a _________________________ corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the
account of its Applicable Lending Office on the
Termination Date (each as defined in the Five-Year
Credit Agreement referred to below) the aggregate
principal amount of the Revolving Credit Advances made
by the Lender to the Borrower pursuant to the Five-Year
Credit Agreement dated as of June 30, 1995 among
AlliedSignal Inc., the Lender and certain other lenders
parties thereto, Citibank, N.A., as Agent, and ABN AMRO
Bank N.V. and Morgan Guaranty Trust Company of New
York, as Co-Agents, for the Lender and such other
lenders (as amended or modified from time to time, the
"Five-Year Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on
the Termination Date.
The Borrower promises to pay interest on the
unpaid principal amount of each Revolving Credit
Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such
interest rates, and payable at such times, as are
specified in the Five-Year Credit Agreement.
Both principal and interest in respect of
each Revolving Credit Advance (i) in Dollars are
payable in lawful money of the United States of America
to Citibank, N.A., as Agent, at 399 Park Avenue, New
York, New York, 10043, in same day funds and (ii) in
any Major Currency are payable in such currency at the
applicable Payment Office in same day funds. Each
Revolving Credit Advance owing to the Lender by the
Borrower pursuant to the Five-Year Credit Agreement,
and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Revolving
Credit Notes referred to in, and is entitled to the
benefits of, the Five-Year Credit Agreement. The Five-
Year Credit Agreement, among other things, (i) provides
for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding
the Dollar amount first above mentioned or the
Equivalent thereof in one or more Major Currencies, the
indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this
Promissory Note, (ii) contains provisions for
determining the Dollar Equivalent of Revolving Credit
Advances denominated in Major Currencies and
(iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This promissory note shall be governed by, and
construed in accordance with the laws of the State of New York.
[NAME OF BORROWER]
By
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Date Type of Amount of Interest Amount Unpaid Notation
Advance Advance in Rate of Principal Made By
Relevant Principal Balance
Currency Paid or
Prepaid
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF
BORROWER], a _________________________ corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Five-Year Credit
Agreement dated as of June 30, 1995 among AlliedSignal Inc., the
Lender and certain other lenders parties thereto, Citibank, N.A.,
as Agent, and ABN AMRO Bank N.V. and Morgan Guaranty Trust
Company of New York, as Co-Agents, for the Lender and such other
lenders (as amended or modified from time to time, the "Five-Year
Credit Agreement"; the terms defined therein being used herein as
therein defined)), on _______________, the principal amount of
[U.S.$_______________] [for a Competitive Bid Advance in a
Foreign Currency, list currency and amount of such Advance].
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
Interest Rate: [____% per annum (calculated on the
basis of a year of _____ days for the actual number of days
elapsed)].
Interest Payment Date or Dates: ______________
Both principal and interest are payable in lawful money
of ___________________ to Citibank, N.A., as Agent, for the
account of the Lender at the office of
_________________________, at _________________________ in same
day funds.
This Promissory Note is one of the Competitive Bid
Notes referred to in, and is entitled to the benefits of, the
Five-Year Credit Agreement. The Five-Year Credit Agreement,
among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Five-Year Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five-
Year Credit Agreement, dated as of June 30, 1995 (as amended or
modified from time to time, the "Five-Year Credit Agreement",
the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank,
N.A., as Agent, and ABN AMRO Bank N.V. and Morgan Guaranty Trust
Company of New York, as Co-Agents, for sai Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the
Five-Year Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Five-Year Credit Agreement,
and in that connection sets forth below the information relating
to such Revolving Credit Borrowing (the "Proposed Revolving
Credit Borrowing") as required by Section 2.02(a) of the Five-
Year Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________.
(ii) The Type of Advances comprising the Proposed
Revolving Credit Borrowing is [Base Rate Advances]
[Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed
Revolving Credit Borrowing is [$_______________] [for a
Revolving Credit Borrowing in a Major Currency, list
currency and amount of Revolving Credit Borrowing].
[(iv) The initial Interest Period for each
Eurocurrency Rate Advance made as part of the Proposed
Revolving Credit Borrowing is _____ month[s].]
The undersigned hereby certifies that the conditions
precedent to this Revolving Credit Borrowing set forth in
Section 3.03 of the Five-Year Credit Agreement have been
satisfied and the applicable statements contained therein are
true on the date hereof, and will be true on the date of the
Proposed Revolving Credit Borrowing.
Very truly yours,
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Five-Year Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five-
Year Credit Agreement, dated as of June 30, 1995 (as amended or
modified from time to time, the "Five-Year Credit Agreement", the
terms defined therein being used herein as therein defined),
among AlliedSignal Inc., certain Lenders parties thereto and
Citibank, N.A., as Agent, and ABN AMRO Bank N.V. and Morgan
Guaranty Trust Company of New York, as Co-Agents, for said
Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Five-Year Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the
Five-Year Credit Agreement, and in that connection sets forth the
terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing __________________
(B) Aggregate Amount of Competitive
Bid Borrowing __________________
(C) [Maturity Date] [Interest Period] __________________
(D) Interest Rate Basis __________________
(E) Interest Payment Date(s) __________________
(F) [Currency] __________________
(G) Borrower's Account Location __________________
(H) ___________________ __________________
The undersigned hereby certifies that the conditions
precedent to this Competitive Bid Borrowing set forth in
Section 3.04 of the Five-Year Credit Agreement have been
satisfied and the applicable statements contained therein are
true on the date hereof, and will be true on the date of the
Proposed Competitive Bid Borrowing.
The undersigned hereby confirms that the Proposed
Competitive Bid Borrowing is to be made available to it in
accordance with Section 2.03(a)(v) of the Five-Year Credit
Agreement.
Very truly yours,
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _____________
Reference is made to the Five-Year Credit Agreement
dated as of June 30, 1995 (as amended or modified from time to
time, the "Five-Year Credit Agreement") among AlliedSignal Inc.,
a Delaware corporation (the "Borrower"), the Lenders (as defined
in the Five-Year Credit Agreement), Citibank, N.A., as agent (the
"Agent"), and ABN AMRO Bank N.V. and Morgan Guaranty Trust
Company of New York, as Co-Agents, for the Lenders. Terms
defined in the Five-Year Credit Agreement are used herein with
the same meaning.
____________ (the "Assignor") and ____________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and
obligations under the Five-Year Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations
under the Five-Year Credit Agreement (other than in respect of
Competitive Bid Advances and Competitive Bid Notes). After
giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances in
each relevant currency owing to the Assignee will be as set forth
on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Five-Year Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Five-
Year Credit Agreement or any other instrument or document
furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or
observance by such Borrower of any of its obligations under the
Five-Year Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) [attaches the Revolving
Credit Note held by the Assignor and] requests that the Agent
obtain from the Borrower a new Revolving Credit Note payable to
the order of the Assignee with respect to the aggregate principal
amount of the Revolving Credit Advances assumed by such Assignee
pursuant hereto, substantially in the form of Exhibit A-1 to the
Five-Year Credit Agreement.
3. The Assignee (i) confirms that it has received a
copy of the Five-Year Credit Agreement, together with copies of
the financial statements referred to in Section 4.01(e) thereof
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor
or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Five-Year Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Five-Year Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the
obligations that by the terms of the Five-Year Credit Agreement
are required to be performed by it as a Lender; and (vi) attaches
any U.S. Internal Revenue Service forms required under
Section 2.13 of the Five-Year Credit Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date for this Assignment
and Acceptance (the "Effective Date") shall be the date of
acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent,
as of the Effective Date, (i) the Assignee shall be a party to
the Five-Year Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations
of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Five-Year Credit
Agreement, provided, however, that the Assignor's rights under
Sections 2.10, 2.13 and 9.04 of the Five-Year Credit Agreement,
and its obligations under Section 8.05 of the Five-Year Credit
Agreement, shall survive the assignment pursuant to this
Assignment and Acceptance as to matters occurring prior to the
Effective Date.
6. Upon such acceptance and recording by the Agent,
from and after the Effective Date, the Agent shall make all
payments under the Five-Year Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments
in payments under the Five-Year Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance 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 Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
Schedule 1
to
Assignment and Acceptance
Dated: ______________
Section 1.
Percentage interest assigned: _____%
Assignee's Commitment: $
Section 2.
(a) Assigned Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars assigned:
$______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful money of the Republic of France assigned:
Francs_________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland assigned:
Pounds_________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assigned:
Deutschemarks___
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned:
Yen_____________
(b) Retained Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars retained:
$_______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful money of the Republic of France retained:
Francs__________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland retained:
Pounds__________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany retained:
Deutschemarks___
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan retained:
Yen_____________
Effective Date1: _______________
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Consented to this __________ day
of _______________
[NAME OF BORROWER]
By ]
Name:
Title:
--------------------------
1 This date should be no earlier than five Business Days after
the delivery of this Assignment and Acceptance to the Agent.
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated:________
AlliedSignal Inc.
P.O. Box 12l9R
101 Columbia Road
Morristown, New Jersey 07960
Attention: Treasurer
Citibank, N.A.,
as Agent
399 Park Avenue
New York, New York 10043
Attention: Bank Loan Syndication
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement
dated as of June 30, 1995 among AlliedSignal Inc. (the
"Company"), the Lenders parties thereto, Citibank, N.A. as Agent,
and ABN AMRO Bank N.V. and Morgan Guaranty Trust Company of New
York, as Co-Agents (the "Five-Year Credit Agreement"; terms
defined therein being used herein as therein defined), for such
Lenders.
1[The undersigned (the "Assuming Lender") proposes to
become an Assuming Lender pursuant to Section 2.05(e) of the
Five-Year Credit Agreement and, in that connection, hereby agrees
that it shall become a Lender for purposes of the Five-Year
Credit Agreement on [applicable Increase Date] and that its
Commitment shall as of such date be $__________.
The undersigned (i) confirms that it has received a
copy of the Five-Year Credit Agreement, together with copies of
the financial statements referred to in Section 4.01(e) thereof,
the most recent financial statements referred to in
Section 5.01(h) thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Agent
or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Five-Year Credit Agreement; (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise
such powers under the Five-Year Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Five-Year Credit Agreement are required
to be performed by it as a Lender; (v) confirms that it is an
Eligible Assignee; (vi) specifies as its Lending Office (and
address for notices) the offices set forth beneath its name on
the signature pages hereof; and (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States
required under Section 2.13 of the Five-Year Credit Agreement.]
2[The undersigned ("Assuming Lender") proposes to
become an Assuming Lender pursuant to Section 2.16 of the Five-
Year Credit Agreement and, in that connection, hereby agrees that
it shall become a Lender for purposes of the Five-Year Credit
Agreement on [applicable Extension Date], assuming on such date
the Commitment (without giving effect to assignments thereof
which have not yet become effective and without regard to any
Competitive Bid Commitment Reduction) as in effect on [applicable
Extension Date] of [name of applicable Non-Consenting Lender]
(the "Assignor") in the amount of $____________ and the Advances
(without giving effect to assignments thereof which have not yet
become effective) owing to the Assignor on [applicable Extension
Date] in the amount of [indicate amounts and currencies of
various assigned Advances].
The Assignor (i) represents and warrants that as of the
date hereof its Commitment (without giving effect to assignments
thereof which have not yet become effective and without regard to
any Competitive Bid Commitment Reduction) is $______ and the
outstanding principal amount of Advances owing to it (without
giving effect to assignments thereof which have not yet become
effective) (A) in Dollars is $______, (B) in lawful currency of
Japan is Yen____, (C) in lawful currency of the Federal Republic
of Germany is Deutschemarks____, (D) in lawful currency of the
Republic of France is Francs_____, (E) in lawful currency of
the United Kingdom of Great Britain and Northern Ireland is
Pounds____ [, and (F) indicate amounts of Advances in other
Foreign Currencies, if any]; (ii) represents and warrants that
it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and
clear of any adverse claim; (iii) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Five-Year Credit Agreement or any other
instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Five-Year Credit Agreement or any
other instrument or document furnished pursuant thereto; and
(iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Company or any other Borrower or the performance or observance by
the Company or any other Borrower of any of its obligations under
the Credit Agreement or any other instrument or document
furnished pursuant thereto.
The Assuming Lender (i) confirms that it has received a
copy of the Five-Year Credit Agreement, together with copies of
the financial statements referred to in Section 4.01(e) thereof,
the most recent financial statements referred to in Section
5.01(h) thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Agent,
the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Five-Year Credit Agreement; (iii) appoints and
authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under the Five-Year Credit Agreement
as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (iv) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Five-Year Credit Agreement
are required to be performed by it as a Lender; (v) specifies as
its Lending Office (and address for notices) the offices set
forth beneath its name on the signature pages hereof; and
(vi) attaches the forms prescribed by the Internal Revenue
Service of the United States required under Section 2.13 of Five-
Year Credit Agreement.]
The Assuming Lender requests that the Company deliver
to the Agent (to be promptly delivered to the Assuming Lender)
Revolving Credit Notes payable to the order of the Assuming
Lender, dated as of the [Extension Date] [Increase Date] and
substantially in the form of Exhibit A-1 to the Five-Year Credit
Agreement.
The effective date for this Assumption Agreement shall
be [applicable Increase Date or Extension Date]. Upon delivery
of this Assumption Agreement to the Company and the Agent, and
satisfaction of all conditions imposed under [Section 2.05(e)]
[Section 2.16] as of [date specified above], the undersigned
shall be a party to the Five-Year Credit Agreement and have the
rights and obligations of a Lender thereunder [and the Assignor
shall relinquish its rights and be released from its obligations
under the Five-Year Credit Agreement].3 As of [date specified
above], the Agent shall make all payments under the Five-Year
Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and commitment fees) to the Assuming Lender.
This Assumption Agreement may be executed in
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
by telecopier shall be effective as delivery of a manually
executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[NAME OF ASSIGNOR]4
By________________________
Name:
Title:
[Address]
Above Acknowledged and Agreed to:
ALLIEDSIGNAL INC.
By______________________
Name:
Title:
----------------------------
1 Use only in connection with Section 2.05(e).
2 Use only in connection with Section 2.16.
3 Use only in connection with Section 2.16.
4 Use only in connection with Section 2.16.
EXHIBIT E - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the Five-Year
Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement
dated as of June 30, 1995 among AlliedSignal Inc. (the
"Company"), the Lenders named therein, Citibank, N.A., as Agent
for said Lenders, and ABN AMRO Bank N.V. and Morgan Guaranty
Trust Company of New York, as Co-Agents (the "Five-Year Credit
Agreement"). For convenience of reference, terms used herein and
defined in the Five-Year Credit Agreement shall have the
respective meanings ascribed to such terms in the Five-Year
Credit Agreement.
Please be advised that the Company hereby designates
its undersigned Subsidiary, ____________ ("Designated
Subsidiary"), as a "Designated Subsidiary" under and for all
purposes of the Five-Year Credit Agreement.
The Designated Subsidiary, in consideration of each
Lender's agreement to extend credit to it under and on the terms
and conditions set forth in the Five-Year Credit Agreement, does
hereby assume each of the obligations imposed upon a "Designated
Subsidiary" and a "Borrower" under the Five-Year Credit Agreement
and agrees to be bound by the terms and conditions of the Five-
Year Credit Agreement. In furtherance of the foregoing, the
Designated Subsidiary hereby represents and warrants to each
Lenders as follows:
1. The Designated Subsidiary is a corporation duly
incorporated, validly existing and in good standing under
the laws of __________________ and is duly qualified to
transact business in all jurisdictions in which such
qualification is required.
2. The execution, delivery and performance by the
Designated Subsidiary of this Designation Letter, the Five-
Year Credit Agreement, its Notes and the consummation of the
transactions contemplated thereby, are within the Designated
Subsidiary's corporate powers, have been duly authorized by
all necessary corporate action, and do not and will not
cause or constitute a violation of any provision of law or
regulation or any provision of the charter or by-laws of the
Designated Subsidiary or result in the breach of, or
constitute a default or require any consent under, or result
in the creation of any lien, charge or encumbrance upon any
of the properties, revenues, or assets of the Designated
Subsidiary pursuant to, any indenture or other agreement or
instrument to which the Designated Subsidiary is a party or
by which the Designated Subsidiary or its property may be
bound or affected.
3. This Designation Agreement and each of the Notes
of the Designated Subsidiary, when delivered, will have been
duly executed and delivered, and this Designation Letter,
the Five-Year Credit Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will constitute a
legal, valid and binding obligation of the Designated
Subsidiary enforceable against the Designated Subsidiary in
accordance with their respective terms except to the extent
that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
4. There is no action, suit, investigation,
litigation or proceeding including, without limitation, any
Environmental Action, pending or to the knowledge of the
Designated Subsidiary Threatened affecting the Designated
Subsidiary before any court, governmental agency or
arbitration that (i) is reasonably likely to have a Material
Adverse Effect, or (ii) purports to effect the legality,
validity or enforceability of this Designation Letter, the
Five-Year Credit Agreement, any Note of the Designated
Subsidiary or the consummation of the transactions
contemplated thereby.
5. No authorizations, consents, approvals, licenses,
filings or registrations by or with any governmental
authority or administrative body are required in connection
with the execution, delivery or performance by the
Designated Subsidiary of this Designation Letter, the Five-
Year Credit Agreement or the Notes of the Designated
Subsidiary except for such authorizations, consents,
approvals, licenses, filings or registrations as have
heretofore been made, obtained or effected and are in full
force and effect.
6. The Designated Subsidiary is not, and immediately
after the application by the Designated Subsidiary of the
proceeds of each Advance will not be, (a) an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, or (b) a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
Very truly yours,
AlliedSignal Inc.
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
EXHIBIT F - FORM OF ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders parties
to the Five-Year Credit
Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain Five-Year Credit
Agreement dated as of June 30, 1995 among AlliedSignal Inc., the
Lenders named therein, Citibank, N.A., as Agent, and ABN AMRO
Bank N.V. and Morgan Guaranty Trust Company of New York, as Co-
Agents for the Lenders (such Five-Year Credit Agreement as it may
hereafter be amended, supplemented or otherwise modified from
time to time, being the "Five-Year Credit Agreement"; the terms
defined therein being used herein as therein defined), and
(ii) to the Designation Letter, dated _________, pursuant to
which __________ has become a Borrower.
Pursuant to Section 9.13 of the Five-Year Credit
Agreement to which __________ has become subject pursuant to its
Designation Letter, __________ has appointed the undersigned
(with an office on the date hereof at 1633 Broadway, New York,
New York 10019, United States) as Process Agent to receive on
behalf of ______________ and its property service of copies of
the summons and complaint and any other process which may be
served in any action or proceeding in any New York State or
Federal court sitting in New York City arising out of or relating
to the Five-Year Credit Agreement.
The undersigned hereby accepts such appointment as
Process Agent and agrees with each of you that (i) the
undersigned will not terminate or abandon the undersigned agency
as such Process Agent without at least six months prior notice to
the Agent (and hereby acknowledges that the undersigned has been
retained for its services as Process Agent through July 7, 1996),
(ii) the undersigned will maintain an office in New York City
through such date and will give the Agent prompt notice of any
change of address of the undersigned, (iii) the undersigned will
perform its duties as Process Agent to receive on behalf of
______________ and its property service of copies of the summons
and complaint and any other process which may be served in any
action or proceeding in any New York State or Federal court
sitting in New York City arising out of or relating to the Five-
Year Credit Agreement and (iv) the undersigned will forward
forthwith to ______________ at its address at ________________
or, if different, its then current address, copies of any
summons, complaint and other process which the undersigned
receives in connection with its appointment as Process Agent.
This acceptance and agreement shall be binding upon the
undersigned and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_______________________
EXHIBIT G - FORM OF OPINION
OF VICTOR P. PATRICK,
ASSISTANT GENERAL COUNSEL FOR THE COMPANY
June 30, 1995
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A.,
as Agent for said Lenders
AlliedSignal Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(e)(vi) of the Five-Year Credit Agreement dated as of June
30, 1995 among AlliedSignal Inc. (the "Company"), the Lenders
parties thereto, Citibank, N.A., as Agent for said Lenders, and
ABN AMRO Bank N.V. and Morgan Guaranty Trust Company of New York,
as Co-Agents (the "Credit Agreement"). Terms defined in the
Credit Agreement are, unless otherwise defined herein, used
herein as therein defined.
I have acted as counsel for the Company in connection
with the preparation, execution and delivery of the Credit
Agreement.
In that connection I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company pursuant to
Article III of the Credit Agreement, including the
Certificate of Incorporation of the Company and all
amendments thereto (the "Charter") and the By-laws of the
Company and all amendments thereto (the "By-laws").
(3) A certificate of the Secretary of State of the
State of Delaware, dated June 12, 1995, attesting to the
continued corporate existence and good standing of the
Company in that State.
I have also examined the originals, or copies certified to my
satisfaction, of such corporate records of the Company (including
resolutions adopted by the Board of Directors of the Company),
certificates of public officials and of officers of the Company,
and agreements, instruments and documents, as I have deemed
necessary as a basis for the opinions hereinafter expressed. As
to questions of fact material to such opinions, I have, when
relevant facts were not independently established by me, relied
upon certificates of the Company or its officers or of public
officials. I have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the
Initial Lenders and the Agent.
I am qualified to practice law in the State of New
York, and I do not purport to be expert in, or to express any
opinion herein concerning, any laws other than the laws of the
State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as
I have deemed necessary, I am of the following opinion:
1. The Company (a) is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, (b) is duly qualified as a foreign
corporation in each other jurisdiction in which it owns or
leases property or in which the conduct of its business
requires it to so qualify or be licensed and (c) has all
requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
2. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes of the
Company, and the consummation of the transactions
contemplated thereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene the Charter or the By-laws
or (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934 and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the
Federal Reserve System) or any material order, writ,
judgment, decree, determination or award or (iii) conflict
with or result in the breach of, or constitute a default
under, any material indenture, loan or credit agreement,
lease, mortgage, security agreement, bond, note or any
similar document. The Credit Agreement and the Notes of the
Company have been duly executed and delivered on behalf of
the Company.
3. No authorization, approval, or other action by,
and no notice to or filing with, any governmental authority,
administrative agency or regulatory body, or any third party
is required for the due execution, delivery and performance
by the Company of the Credit Agreement or the Notes of the
Company, or for the consummation of the transactions
contemplated thereby.
4. The Credit Agreement is, and each Note of the
Company when delivered under the Credit Agreement will be,
the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their
respective terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or
moratorium or other similar laws relating to the enforcement
of creditors' rights generally or by the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and except that I express no opinion as to (i) the
subject matter jurisdiction of the District Courts of the
United States of America to adjudicate any controversy
relating to the Credit Agreement or the Notes of the Company
or (ii) the effect of the law of any jurisdiction (other
than the State of New York) wherein any Lender or Applicable
Lending Office may be located or wherein enforcement of the
Credit Agreement or the Notes of the Company may be sought
which limits rates of interest which may be charged or
collected by such Lender.
5. There is no action, suit, investigation,
litigation or proceeding against the Company or any of its
Subsidiaries before any court, governmental agency or
arbitrator now pending or, to the best of my knowledge,
Threatened that is reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or that
purports to affect the legality, validity or enforceability
of the Credit Agreement or any Note of the Company or the
consummation of the transactions contemplated thereby, and
there has been no adverse change in the status, or financial
effect on the Company or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b)
of the Credit Agreement.
6. The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
7. The Company is not a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
In connection with the opinions expressed by me above
in paragraph 4, I wish to point out that (i) provisions of the
Credit Agreement that permit the Agent or any Lender to take
action or make determinations may be subject to a requirement
that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) that a party to whom an
advance is owed may, under certain circumstances, be called upon
to prove the outstanding amount of the Advances evidenced thereby
and (iii) the rights of the Agent and the Lenders provided for in
Section 9.04(b) of the Credit Agreement may be limited in certain
circumstances.
I am aware that Shearman & Sterling will rely upon the
opinions set forth paragraphs 1, 2 and 3 of this opinion in
rendering their opinion furnished pursuant to Section
3.01(e)(vii) of the Credit Agreement.
Very truly yours,
EXHIBIT H - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
____________, 19__
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________
("Designated Subsidiary"), I have reviewed that certain Five-
Year Credit Agreement dated as of June 30, 1995 among
AlliedSignal Inc., the Lenders named therein, Citibank, N.A., as
Agent for such Lenders, and ABN AMRO Bank N.V. and Morgan
Guaranty Trust Company of New York, as Co-Agents (the "Credit
Agreement"). In connection therewith, I have also examined the
following documents:
(i) The Designation Letter (as defined in the Credit
Agreement) executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer
to]
I have also reviewed such matters of law and examined
the original, certified, conformed or photographic copies of such
other documents, records, agreements and certificates as I have
considered relevant hereto.
Except as expressly specified herein all terms used
herein and defined in the Credit Agreement shall have the
respective meanings ascribed to them in the Credit Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Designated Subsidiary (a) is a corporation
duly incorporated, validly existing and in good standing
under the laws of _________________________, (b) is duly
qualified in each other jurisdiction in which it owns or
leases property or in which the conduct of its business
requires it to so qualify or be licensed and (c) has all
requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
2. The execution, delivery and performance by the
Designated Subsidiary of its Designation Letter, the Credit
Agreement and its Notes, and the consummation of the
transactions contemplated thereby, are within the Designated
Subsidiary's corporate powers, have been duly authorized by
all necessary corporate action, and do not and will not
cause or constitute a violation of any provision of law or
regulation or any material order, writ, judgment, decree,
determination or award or any provision of the charter or by-
laws or other constituent documents of the Designated
Subsidiary or result in the breach of, or constitute a
default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any of the
properties, revenues, or assets of the Designated Subsidiary
pursuant to, any material indenture or other agreement or
instrument to which the Designated Subsidiary is a party or
by which the Designated Subsidiary or its property may be
bound or affected. The Designation Letter and each Note of
the Designated Subsidiary has been duly executed and
delivered on behalf of the Designated Subsidiary.
3. The Credit Agreement and the Designation Letter of
the Designated Subsidiary are, and each Note of the
Designated Subsidiary when delivered under the Credit
Agreement will be, the legal, valid and binding obligation
of the Designated Subsidiary enforceable in accordance with
their respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or
moratorium or other similar laws relating to the enforcement
of creditors' rights generally or by the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and except that I express no opinion as to (i) the
subject matter jurisdiction of the District Courts of the
United States of America to adjudicate any controversy
relating to the Credit Agreement, the Designation Letter of
the Designated Subsidiary or the Notes of the Designated
Subsidiary or (ii) the effect of the law of any jurisdiction
(other than the State of New York) wherein any Lender or
Applicable Lending Office may be located or wherein
enforcement of the Credit Agreement, the Designation Letter
of the Designated Subsidiary or the Notes of the Designated
Subsidiary may be sought which limits rates of interest
which may be charged or collected by such Lender.
4. There is no action, suit, investigation,
litigation or proceeding at law or in equity before any
court, governmental agency or arbitration now pending or, to
the best of my knowledge and belief, Threatened against the
Designated Subsidiary that is reasonably likely to have a
Material Adverse Effect or that purports to affect the
legality, validity or enforceability of the Designation
Letter of the Designated Subsidiary, the Credit Agreement or
any Note of the Designated Subsidiary or the consummation of
the transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses,
filings or registrations by or with any governmental
authority or administrative body are required for the due
execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement
or the Notes of the Designated Subsidiary except for such
authorizations, consents, approvals, licenses, filings or
registrations as have heretofore been made, obtained or
affected and are in full force and effect.
6. The Designated Subsidiary is not an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
7. The Designated Subsidiary is not a "holding
company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
In connection with the opinions expressed by me above
in paragraph 3, I wish to point out that (i) provisions of the
Credit Agreement which permit the Agent or any Lender to take
action or make determinations may be subject to a requirement
that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) a party to whom an
advance is owed may, under certain circumstances, be called upon
to prove the outstanding amount of the Advances evidenced thereby
and (iii) the rights of the Agent and the Lenders provided for in
Section 9.04(b) of the Credit Agreement may be limited in certain
circumstances.
Very truly yours,
EXHIBIT I - FORM OF OPINION
OF SHEARMAN & STERLING,
COUNSEL TO THE AGENT
[S&S LETTERHEAD]
June 30, 1995
To the Lenders listed on
Exhibit A hereto and
to Citibank, N.A., as
Agent
AlliedSignal Inc.
Ladies and Gentlemen:
We have acted as counsel to Citibank. N.A., as Agent,
in connection with the preparation, execution and delivery of the
Five-Year Credit Agreement, dated as of June 30, 1995 (the
"Credit Agreement"), among AlliedSignal Inc. (the "Company") and
each of you. Terms defined in the Credit Agreement are used
herein as therein defined.
In that connection, we have examined the following
documents:
(1) Counterparts of the Credit Agreement, executed by
each of the parties thereto.
(2) The documents furnished by the Company pursuant to
Article III of the Credit Agreement and listed on Exhibit B
hereto, including the opinion of Victor P. Patrick,
Assistant General Counsel for the Company.
In our examination of the documents referred to above,
we have assumed the authenticity of all such documents submitted
to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that each of the Lenders and the
Agent has duly executed and delivered, with all necessary power
and authority (corporate and otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve
conclusions as to the matters set forth in paragraphs 1, 2, and 3
of the above-mentioned opinion of Victor P. Patrick, we have
assumed without independent investigation the correctness of the
matters set forth in such paragraphs.
Based upon the foregoing examination of documents and
assumptions and upon such other investigation as we have deemed
necessary, we are of the opinion that the Credit Agreement as in
effect on the date hereof is, and each of the Notes of the
Company when delivered under the Credit Agreement will be, the
legal, valid and binding obligation of the Company enforceable
against the Company in accordance with their respective terms.
Our above opinion is subject to the following
qualifications:
(a) Such opinion is subject to the effect of general
principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
(b) Such opinion is also subject to the effect of any
applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting
creditors' rights generally.
(c) Such opinion is limited to the law of the State of
New York and the Federal law of the United States, and we do
not express any opinion herein concerning any other law.
Without limiting the generality of the foregoing, we express
no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Lender or
Applicable Lending Office may be located or wherein
enforcement of the Credit Agreement or any Note may be
sought which limits the rates of interest legally chargeable
or collectible.
A copy of this opinion letter may be delivered by any
Lender to any financial institution in connection with, and at
the time of, any assignment and delegation by such Lender under
the Credit Agreement to such financial institution of all or a
portion of the rights and obligations of such Lender under the
Credit Agreement in accordance with the provisions of the Credit
Agreement, and such financial institution may rely on the opinion
expressed above as if this opinion letter were addressed and
delivered to such financial institution on the date hereof.
This opinion letter speaks only as of the date hereof.
We do not assume, and expressly disclaim, any responsibility to
advise you or any other person who is permitted to rely on any
opinion expressed herein as specified in the next preceding
paragraph of any change of law or fact that may occur after the
date of this opinion letter even though such change may affect
the legal analysis, any legal conclusion or any other matter set
forth in or relating to this opinion letter. Accordingly, any
person relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this
opinion letter at such time.
Very truly yours,
EXHIBIT A
to the Opinion dated June 30, 1995
of Shearman & Sterling
Lenders
ABN AMRO Bank N.V., New York Branch
Bank of America National Trust and Savings Association
Bank of Montreal
Banque Nationale de Paris, New York
Canadian Imperial Bank of Commerce
Chemical Bank
Citibank, N.A.
Deutsche Bank AG New York and/or Cayman Islands Branches
Mellon Bank, N.A.
Midland Bank PLC, New York Branch
Morgan Guaranty Trust Company of New York
National Westminster Bank Plc (New York and/or Nassau Branches)
NationsBank, N.A. (Carolinas)
Royal Bank of Canada
The Bank of New York
The Bank of Tokyo Trust Company
The Chase Manhattan Bank, N.A.
The First National Bank of Chicago
The Industrial Bank of Japan Trust Company
The Toronto-Dominion Bank
Union Bank of Switzerland, New York Branch
EXHIBIT B
to the Opinion dated June 30, 1995
of Shearman & Sterling
Documents
1. A certificate signed by a duly authorized officer of
the Company, dated the Effective Date, stating that (i) the
representations and warranties contained in Section 4.01 of the
Credit Agreement are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that constitutes a
Default, delivered pursuant to Section 3.01(d) of the Credit
Agreement.
2. The Revolving Credit Notes of the Company to the order
of the Lenders, respectively, delivered pursuant to Section
3.01(e)(i) of the Credit Agreement.
3. Certified copies of the resolutions of the Board of
Directors of the Company approving the Credit Agreement and the
Notes of the Company, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to the Credit Agreement and such Notes, delivered
pursuant to Section 3.01(e)(ii) of the Credit Agreement.
4. A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true signatures
of the officers of the Company authorized to sign the Credit
Agreement and the Notes of the Company and the other documents to
be delivered under the Credit Agreement, delivered pursuant to
Section 3.01(e)(iii) of the Credit Agreement.
5. Authenticated copies of the Certificate of
Incorporation and By-Laws of the Company, delivered pursuant to
Section 3.01(e)(iv) of the Credit Agreement.
6. Evidence of the termination of the Existing Facility A
Credit Agreement and the Existing Facility B Credit Agreement,
and payment of all amounts owing thereunder, delivered pursuant
to Section 3.01(e)(v) of the Credit Agreement.
7. The opinion of Victor P. Patrick, Assistant General
Counsel of the Company, substantially in the form of Exhibit G to
the Credit Agreement,and as to such other matters as any Lender
through the Agent may reasonably request, delivered pursuant to
Section 3.01(vi) of the Credit Agreement.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 16
SECTION 1.03. Accounting Terms 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 16
SECTION 2.02. Making the Revolving Credit
Advances 17
SECTION 2.03. The Competitive Bid Advances 19
SECTION 2.04. Fees 24
SECTION 2.05. Termination, Reduction or Increase
of the Commitments 24
SECTION 2.06. Repayment of Revolving Credit
Advances 28
SECTION 2.07. Interest on Revolving Credit
Advances 28
SECTION 2.08. Interest Rate Determination 29
SECTION 2.09. Prepayments of Revolving Credit
Advances 31
SECTION 2.10. Increased Costs 32
SECTION 2.11. Illegality 33
SECTION 2.12. Payments and Computations 33
SECTION 2.13. Taxes 35
SECTION 2.14. Sharing of Payments, Etc. 37
SECTION 2.15. Use of Proceeds 38
SECTION 2.16. Extension of Termination Date 38
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to
Effectiveness of Sections 2.01 and 2.03 40
SECTION 3.02. Initial Loan to Each Designated
Subsidiary 42
SECTION 3.03. Conditions Precedent to Each
Revolving Credit Borrowing 43
SECTION 3.04. Conditions Precedent to Each
Competitive Bid Borrowing 43
SECTION 3.05. Determinations Under Section 3.01 44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of
the Borrower 45
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 48
SECTION 5.02. Negative Covenants 52
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 54
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee 58
SECTION 7.02. Guarantee Absolute 59
SECTION 7.03. Waivers 60
SECTION 7.04. Remedies 60
SECTION 7.05. No Stay 60
SECTION 7.06. Survival 61
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action 61
SECTION 8.02. Agent's Reliance, Etc. 61
SECTION 8.03. Citibank and Affiliates 62
SECTION 8.04. Lender Credit Decision 62
SECTION 8.05. Indemnification 62
SECTION 8.06. Successor Agent 63
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. 63
SECTION 9.02. Notices, Etc. 64
SECTION 9.03. No Waiver; Remedies 64
SECTION 9.04. Costs and Expenses 64
SECTION 9.05. Right of Set-off 65
SECTION 9.06. Binding Effect 66
SECTION 9.07. Assignments and Participations 66
SECTION 9.08. Designated Subsidiaries 69
SECTION 9.09. Confidentiality. 69
SECTION 9.10. Mitigation of Yield Protection. 70
SECTION 9.11. Governing Law. 70
SECTION 9.12. Execution in Counterparts 70
SECTION 9.13. Jurisdiction, Etc. 70
SECTION 9.14. Waiver of Jury Trial 71
SECTION 9.15. Final Agreement 71
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of Victor P. Patrick,
Assistant General Counsel for the Company
Exhibit H - Form of Opinion of Counsel to a Designated
Subsidiary
Exhibit I - Form of Opinion of Shearman & Sterling, Counsel to
the Agent