COPY AS EXECUTED
U.S. $375,000,000
364-DAY 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
364-DAY 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 transferable 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.
"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).
"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), 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).
"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.
"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.
"Facility B Credit Agreement" means the Five-Year 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 or, if available to all Lenders, nine 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) 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.
"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).
"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 28, 1996 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 the rate of .065% per annum, 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).
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 three Commitment
Increases during the 364-day 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) .185%,
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 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), 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, 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 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.
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 B Credit
Agreement) shall have occurred and be continuing under the Facility B
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 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, (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) or 2.11, 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 supersedes 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
--------------------------
Name: Robert S. Taylor
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
COMMITMENT: THE LENDERS:
$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
$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
COMMITMENT: THE LENDERS:
$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
$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
COMMITMENT: THE LENDERS:
$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/ David H. Perron
---------------------------
Name: David 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.
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: (510) 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 Cente r 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
NATIONAL WESTMINSTER 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 N. Tryon Street, 101 N. Tryon Street,
15th Floor 15th Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Carole Greene Attn: Carole 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) 428-2372 Fax: (212) 428-2372
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) 821-3383 Fax: (212) 821-3383
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 364-Day Credit Agreement referred to below) the aggregate principal
amount of the Revolving Credit Advances made by the Lender to the Borrower
pursuant to the 364-Day 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 "364-Day 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 364-Day 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 364-Day
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 364-Day Credit Agreement.
The 364-Day 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 of Unpaid Notation
Advance Advance in Rate Principal Principal Made By
Relevant Paid or Balance
Currency 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 364-Day 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 "364-Day 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 364-Day Credit Agreement.
The 364-Day 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 364-Day 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 364-Day Credit
Agreement, dated as of June 30, 1995 (as amended or modified from time to
time, the "364-Day 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 said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the 364-
Day Credit Agreement that the undersigned hereby requests a Revolving
Credit Borrowing under the 364-Day 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 364-Day 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 364-Day
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 364-Day 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 364-Day Credit
Agreement, dated as of June 30, 1995 (as amended or modified from time to
time, the "364-Day 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
364-Day Credit Agreement that the undersigned hereby requests a Competitive
Bid Borrowing under the 364-Day 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 364-Day
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 364-Day Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _____________
Reference is made to the 364-Day Credit Agreement dated as of
June 30, 1995 (as amended or modified from time to time, the "364-Day
Credit Agreement") among AlliedSignal Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day Credit Agreement or any other instrument or document furnished
pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the 364-Day 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 364-Day 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 364-Day Credit Agreement.
3. The Assignee (i) confirms that it has received a copy of the
364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-
Day Credit Agreement, provided, however, that the Assignor's rights under
Sections 2.10, 2.13 and 9.04 of the 364-Day Credit Agreement, and its
obligations under Section 8.05 of the 364-Day 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 364-
Day 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 364-Day 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 shall 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 364-Day 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 "364-Day Credit
Agreement"; terms defined therein being used herein as therein defined),
for such Lenders.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.05(e) of the 364-Day Credit Agreement
and, in that connection, hereby agrees that it shall become a Lender for
purposes of the 364-Day 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
364-Day 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 364-Day Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the 364-Day 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 364-Day 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 364-Day 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 Increase
Date and substantially in the form of Exhibit A-1 to the 364-Day Credit
Agreement.
The effective date for this Assumption Agreement shall be
[applicable Increase Date]. Upon delivery of this Assumption Agreement to
the Company and the Agent, and satisfaction of all conditions imposed under
Section 2.05(e) as of [date specified above], the undersigned shall be a
party to the 364-Day Credit Agreement and have the rights and obligations
of a Lender thereunder. As of [date specified above], the Agent shall make
all payments under the 364-Day 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
Above Acknowledged and Agreed to:
ALLIEDSIGNAL INC.
By______________________
Name:
Title:
EXHIBIT E - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the 364-Day
Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day 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 "364-Day
Credit Agreement"). For convenience of reference, terms used herein and
defined in the 364-Day Credit Agreement shall have the respective meanings
ascribed to such terms in the 364-Day 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 364-Day 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 364-Day Credit Agreement, does hereby assume each of the
obligations imposed upon a "Designated Subsidiary" and a "Borrower" under
the 364-Day Credit Agreement and agrees to be bound by the terms and
conditions of the 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-
Day Credit Agreement as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day 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 364-Day
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
ARTICLE I 1
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 10
SECTION 1.03. Accounting Terms 10
ARTICLE II 11
SECTION 2.01. The Revolving Credit Advances 11
SECTION 2.02. Making the Revolving Credit Advances 11
SECTION 2.03. The Competitive Bid Advances 12
SECTION 2.04. Fees 16
SECTION 2.05. Termination, Reduction or Increase of the Commitments 16
SECTION 2.06. Repayment of Revolving Credit Advances 19
SECTION 2.07. Interest on Revolving Credit Advances 19
SECTION 2.08. Interest Rate Determination 19
SECTION 2.09. Prepayments of Revolving Credit Advances 21
SECTION 2.10. Increased Costs 21
SECTION 2.11. Illegality 22
SECTION 2.12. Payments and Computations 22
SECTION 2.13. Taxes 23
SECTION 2.14. Sharing of Payments, Etc. 25
SECTION 2.15. Use of Proceeds 26
ARTICLE III 26
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03 26
SECTION 3.02. Initial Loan to Each Designated Subsidiary 27
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing 27
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing 28
SECTION 3.05. Determinations Under Section 3.01 29
ARTICLE IV 29
SECTION 4.01. Representations and Warranties of the Borrower 29
ARTICLE V 31
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 34
ARTICLE VI 35
SECTION 6.01. Events of Default 35
ARTICLE VII 38
SECTION 7.01. Unconditional Guarantee 38
SECTION 7.02. Guarantee Absolute 39
SECTION 7.03. Waivers 39
SECTION 7.04. Remedies 39
SECTION 7.05. No Stay 40
SECTION 7.06. Survival 40
ARTICLE VIII 40
SECTION 8.01. Authorization and Action 40
SECTION 8.02. Agent's Reliance, Etc. 40
SECTION 8.03. Citibank and Affiliates 41
SECTION 8.04. Lender Credit Decision 41
SECTION 8.05. Indemnification 41
SECTION 8.06. Successor Agent 41
ARTICLE IX 42
SECTION 9.01. Amendments, Etc. 42
SECTION 9.02. Notices, Etc. 42
SECTION 9.03. No Waiver; Remedies 42
SECTION 9.04. Costs and Expenses 43
SECTION 9.05. Right of Set-off 43
SECTION 9.06. Binding Effect 44
SECTION 9.07. Assignments and Participations 44
SECTION 9.08. Designated Subsidiaries 46
SECTION 9.09. Confidentiality. 46
SECTION 9.10. Mitigation of Yield Protection. 46
SECTION 9.11. Governing Law. 47
SECTION 9.12. Execution in Counterparts 47
SECTION 9.13. Jurisdiction, Etc. 47
SECTION 9.14. Waiver of Jury Trial 48
SECTION 9.15. Final Agreement 48
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