1
Exhibit 10(p)
Form 10-K for 1994
File No. 1-11237
CONFORMED COPY
$500,000,000
CREDIT AGREEMENT
dated as of
July 11, 1994
among
AT&T Capital Corporation
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . .
. 1
1.02 Accounting Terms and Determinations. . . . . . .
. 11
1.03 Types of Borrowings. . . . . . . . . . . . . . .
. 12
1.04 Basis for Ratings. . . . . . . . . . . . . . . .
. 12
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend. . . . . . . . . . . . . . .
. 12
2.02 Notice of Committed Borrowing. . . . . . . . . .
. 13
2.03 Money Market Borrowings. . . . . . . . . . . . .
. . . 13
2.04 Notice to Banks; Funding of Loans. . . . . . . .
. 17
2.05 Notes. . . . . . . . . . . . . . . . . . . . . .
. 18
2.06 Maturity of Loans; Termination of
Commitments. . . . . . . . . . . . . . . . . .
. 19
2.07 Interest Rates . . . . . . . . . . . . . . . . .
. 19
2.08 Facility Fees. . . . . . . . . . . . . . . . . .
. 22
2.09 Optional Termination or
Reduction of Commitments . . . . . . . . . . .
. 23
2.10 Method of Electing Interest Rates. . . . . . . .
. 23
2.11 Optional Prepayments . . . . . . . . . . . . . .
. 24
2.12 General Provisions as to Payments. . . . . . . .
. 25
2.13 Funding Losses . . . . . . . . . . . . . . . . .
. 26
2.14 Computation of Interest and Fees . . . . . . . .
. 27
2.15 Regulation D Compensation. . . . . . . . . . . .
. 27
ARTICLE III
CONDITIONS
SECTION 3.01 Closing. . . . . . . . . . . . . . . . . . . . .
. 28
3.02 Borrowings . . . . . . . . . . . . . . . . . . .
. 28
3
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power. . . . . . . . . .
. 29
4.02 Corporate and Governmental
Authorization; No Contravention. . . . . . . .
. 29
4.03 Binding Effect . . . . . . . . . . . . . . . . .
. 29
4.04 Financial Information. . . . . . . . . . . . . .
. 30
4.05 Litigation.. . . . . . . . . . . . . . . . . . .
. 30
4.06 Subsidiaries.. . . . . . . . . . . . . . . . . .
. 31
4.07 Not an Investment Company. . . . . . . . . . . .
. 31
4.08 Full Disclosure. . . . . . . . . . . . . . . . .
. 31
ARTICLE V
COVENANTS
SECTION 5.01 Information. . . . . . . . . . . . . . . . . . .
. 31
5.02 Maintenance of Existence . . . . . . . . . . . .
. 32
5.03 Fixed Charge Coverage. . . . . . . . . . . . . .
. 32
5.04 Debt . . . . . . . . . . . . . . . . . . . . . .
. 32
5.05 Limitation on Secured Debt . . . . . . . . . . .
. 33
5.06 Consolidations, Mergers and
Sales of Assets. . . . . . . . . . . . . . . .
. 35
5.07 Use of Proceeds. . . . . . . . . . . . . . . . .
. 35
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default. . . . . . . . . . . . . . . .
. 36
6.02 Notice of Default. . . . . . . . . . . . . . . .
. 38
6.03 Rescission . . . . . . . . . . . . . . . . . . .
. 38
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization. . . . . . . . . .
. 38
7.02 Agent and Affiliates.. . . . . . . . . . . . . .
. 38
7.03 Action by Agent. . . . . . . . . . . . . . . . .
. 39
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Page
7.04 Consultation with Experts. . . . . . . . . . . .
. 39
7.05 Liability of Agent . . . . . . . . . . . . . . .
. 39
7.06 Indemnification. . . . . . . . . . . . . . . . .
. 39
7.07 Credit Decision. . . . . . . . . . . . . . . . .
. 40
7.08 Successor Agent. . . . . . . . . . . . . . . . .
. 40
7.09 Agent's Fee. . . . . . . . . . . . . . . . . . .
. 40
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair. . . . . . . . . . .
. 40
8.02 Illegality . . . . . . . . . . . . . . . . . . .
. 41
8.03 Increased Cost and Reduced Return. . . . . . . .
. 42
8.04 Taxes. . . . . . . . . . . . . . . . . . . . . .
. 44
8.05 Base Rate Loans Substituted for
Affected Fixed Rate Loans. . . . . . . . . . .
. 46
8.06 Substitution of Bank . . . . . . . . . . . . . .
. 47
8.07 Compensation . . . . . . . . . . . . . . . . . .
. 47
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. . . . . . . . . . . . . . . . . . . . .
. 47
9.02 No Waivers . . . . . . . . . . . . . . . . . . .
. 48
9.03 Expenses; Indemnification. . . . . . . . . . . .
. 48
9.04 Sharing of Set-Offs. . . . . . . . . . . . . . .
. 49
9.05 Amendments and Waivers . . . . . . . . . . . . .
. 49
9.06 Successors and Assigns . . . . . . . . . . . . .
. 49
9.07 Collateral . . . . . . . . . . . . . . . . . . .
. 51
9.08 Governing Law; Submission to Juris-
diction. . . . . . . . . . . . . . . . . . . .
. 51
9.09 Counterparts; Integration;
Effectiveness. . . . . . . . . . . . . . . . .
. 52
9.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . .
. 52
9.11 Confidentiality. . . . . . . . . . . . . . . . .
. 52
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Page
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Special Counsel for the
Agent
Exhibit G - Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of July 11, 1994 among AT&T
CAPITAL CORPORATION, the BANKS listed on the signature pages
hereof and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Agent.
W I T N E S S E T H :
WHEREAS, the Borrower (as defined below) has
heretofore entered into a $500,000,000 Credit Agreement
dated as of July 12, 1993 with the banks listed on the
signature pages thereof and Morgan Guaranty Trust Company of
New York, as agent for such banks (the "Existing Credit
Agreement"); and
WHEREAS, the Borrower wishes to enter into this
Agreement to replace the Existing Credit Agreement; and
WHEREAS, upon the effectiveness of this Agreement
in accordance with Section 9.09, the Existing Credit
Agreement shall terminate;
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Accounts Receivable" shall mean (i) any accounts
receivable (whether or not earned by performance), chattel
paper, instruments, documents, general intangibles, trade
acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to
become due on account of equipment or goods sold or leased
or to be sold or leased or services rendered or to be
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rendered or funds advanced or loaned or to be advanced or
loaned and other rights to payment of any kind, (ii) any
proceeds of any of the foregoing and (iii) any interest in
any property or asset of any kind (whether of the obligor
under such Accounts Receivable or any other Person) securing
the payment of any item listed in clause (i) hereof.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a
copy to the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New
York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" has the meaning set forth in
Section 2.07(h).
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Asset Drop-Down" has the meaning set forth in
Section 5.06.
"Assignee" has the meaning set forth in Section
9.06(c).
"AT&T" means American Telephone and Telegraph
Company, a New York corporation, and its successors.
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
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"Base Rate Loan" means (i) a Committed Loan which
bears interest at the Base Rate pursuant to the applicable
Notice of Committed Borrowing or Notice of Interest Rate
Election or the provisions of Article VIII or (ii) an
overdue amount which was a Base Rate Loan immediately before
it became overdue.
"Borrower" means AT&T Capital Corporation, a
Delaware corporation, and its successors.
"Borrower's 1993 Form 10-K" means the Borrower's
annual report on Form 10-K for 1993, as filed with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"Borrower's Latest Form 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended March
31, 1994, as filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means (i) a Committed Loan which bears
interest at a CD Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or
(ii) an overdue amount which was a CD Loan immediately
before it became overdue.
"CD Rate" means a rate of interest determined
pursuant to Section 2.07(b) on the basis of an Adjusted CD
Rate.
"CD Reference Banks" means Chemical Bank,
Citibank, N.A. and Morgan Guaranty Trust Company of New
York.
"Closing Date" means the date on which the Agent
shall have received the documents specified in or pursuant
to Section 3.01.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Section 2.09.
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"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01; provided that, if any such loan or
loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision,
as the case may be.
"Consolidated Debt" means at any date the Debt of
the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis as of such date.
"Consolidated EBIT" means, for any period, the sum
of (i) the consolidated net income from continuing
operations of the Borrower and its Consolidated Subsidiaries
for such period before extraordinary items and without
giving effect to unusual non-recurring events plus (ii) to
the extent deducted in determining such consolidated net
income from continuing operations, the sum of Consolidated
Interest Expense and the provision for income tax for such
period.
"Consolidated Interest Expense" means, for any
period, the interest expense of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis
for such period.
"Consolidated Net Tangible Assets" means, at the
date of any determination, the total assets appearing on the
consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as at the end of the most recent
fiscal quarter of the Borrower for which such balance sheet
is available, prepared in accordance with generally accepted
accounting principles, less (a) all current liabilities
(obligations whose liquidation is reasonably expected to
occur within twelve months), (b) investments in and advances
to Subsidiaries of the Borrower other than Restricted
Subsidiaries or other entities accounted for on the equity
method of accounting, and (c) Intangible Assets.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of
such date.
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"Consolidated Tangible Net Worth" means, at any
date, the consolidated stockholders' equity of the Borrower
and its Consolidated Subsidiaries less Intangible Assets,
all determined as of such date.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money and (ii) all obligations of others for borrowed money
guaranteed by such Person; provided, however, that any
recourse provided by any Person in connection with any sale,
transfer or other disposition by such Person of Accounts
Receivable or of any subsidiary of such Person substantially
all the assets of which are Accounts Receivable which
constitutes a "sale" under generally accepted accounting
principles (as in effect at the time of such sale, transfer
or other disposition) shall not, in any event, constitute
Debt.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as
its Domestic Lending Office by notice to the Borrower and
the Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans
or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Drop-Down Subsidiary" has the meaning set forth
in Section 5.06.
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"Effective Date" means the date this Agreement
becomes effective in accordance with Section 9.09.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or
affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the
Agent.
"Euro-Dollar Loan" means (i) a Committed Loan
which bears interest at a Euro-Dollar Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
"Euro-Dollar Rate" means a rate of interest
determined pursuant to Section 2.07(c) on the basis of a
London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal
London offices of The Fuji Bank, Limited, Royal Bank of
Canada and Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
United States residents).
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"Event of Default" has the meaning set forth in
Section 6.01.
"Existing Credit Agreement" has the meaning set
forth in the recitals hereto.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of
Loans consisting of (i) all Committed Loans which are Base
Rate Loans at such time or (ii) all Committed Loans which
are Fixed Rate Loans of the same type having the same
Interest Period at such time; provided that, if a Committed
Loan of any particular Bank is converted to or made as a
Base Rate Loan pursuant to Section 8.02 or 8.05, such Loan
shall be included in the same Group or Groups of Loans from
time to time as it would have been in if it had not been so
converted or made.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Intangible Assets", means the value (net of any
applicable reserves), as shown on or reflected in the
Borrower's balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii)
organization and development costs; (iii) deferred charges
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(other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount
and expense, less unamortized premium.
"Interest Period" means: (1) with respect to each
Euro-Dollar Loan, a period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or
on the date specified in the applicable Notice of Interest
Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (c) below, be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Loan, a period commencing on
the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice
of Interest Rate Election and ending 30, 60, 90 or 180 days
thereafter, as the Borrower may elect in the applicable
notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
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after the Termination Date shall end on the Termination
Date.
(3) with respect to each Money Market LIBOR Loan, the
period commencing on the date of borrowing specified in the
applicable Notice of Borrowing and ending such whole number
of months thereafter as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (c) below, be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market Absolute Rate Loan,
the period commencing on the date of borrowing specified in
the applicable Notice of Borrowing and ending such number of
days thereafter (but not less than 14 days) as the Borrower
may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next
succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Level I Status" exists at any date if, at such
15
date, (i) the Borrower's outstanding senior unsecured long-term
debt is rated both A+ or higher by S&P and A1 or higher
by Moody's and (ii) the Borrower's commercial paper is rated
both A1 or higher by S&P and P1 by Moody's.
"Level II Status" exists at any date if, at such
date, (a) both (i) the Borrower's outstanding senior
unsecured long-term debt is rated both A- or higher by S&P
and A3 or higher by Moody's and (ii) the Borrower's
commercial paper is rated both A1 or higher by S&P and P1 by
Moody's and (b) Level I Status does not exist at such date.
"Level III Status" exists at any date if, at such
date, neither Level I Status nor Level II Status exists.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means any mortgage, pledge, security
interest or lien.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Adverse Effect" means a material adverse
effect on the consolidated financial position of the
Borrower and its subsidiaries.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent
designate separate Money Market Lending Offices for its
16
Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case
all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Moody's" means Moody's Investors Service, Inc. or
any successor rating agency acceptable to the Agent and the
Borrower.
"Non-Recourse Debt" of the Borrower or any
Restricted Subsidiary means any indebtedness for borrowed
money of the Borrower or any Restricted Subsidiary, as the
case may be, which is secured by any Lien on or payable
solely from the income and proceeds of any property
(including, without limiting the generality of such term,
any intangible assets), shares of stock, other equity
interests or debt of the Borrower or such Restricted
Subsidiary, as the case may be, and which is not a general
obligation of the Borrower or such Restricted Subsidiary, as
the case may be.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
17
"Notice of Interest Rate Election" has the meaning
set forth in Section 2.10.
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in Section
9.06(b).
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Quarterly Date" means the last Euro-Dollar
Business Day of each March, June, September and December.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having at
least 51% of the aggregate amount of the Commitments or, if
the Commitments shall have been terminated, holding Notes
evidencing at least 51% of the aggregate unpaid principal
amount of the Loans.
"Restricted Subsidiary" means each Subsidiary of
the Borrower organized under the laws of any State of the
United States or the District of Columbia no substantial
portion of the business of which is carried on outside of
the United States; provided that each Drop-Down Subsidiary
(as defined in Section 5.06) shall be a Restricted
Subsidiary.
"S&P" means Standard & Poor's Corporation or any
successor rating agency acceptable to the Agent and the
Borrower.
18
"Status" means, at any date, whichever of Level I
Status, Level II Status or Level III Status exists at such
date.
"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower
(or, if such term is used with reference to any other
Person, by such other Person).
"Termination Date" means July 11, 1997, or, if
such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day.
"United States" means the United States of
America, including the States and the District of Columbia,
but excluding its territories and possessions.
"Wholly-Owned Restricted Subsidiary" means any
Restricted Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly
owned by the Borrower.
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time,
applied on a basis consistent (except for changes made in
consultation with the Borrower's independent public
accountants) with the most recent audited consolidated
financial statements of the Borrower and its subsidiaries
delivered to the Banks; provided that, if the Borrower
notifies the Agent that the Borrower wishes to amend any
covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation
of such covenant (or if the Agent notifies the Borrower that
the Required Banks wish to amend Article V for such
purpose), then the Borrower's compliance with such covenant
shall be determined on the basis of generally accepted
accounting principles in effect immediately before the
19
relevant change in generally accepted accounting principles
became effective, until either such notice is withdrawn or
such covenant is amended in a manner satisfactory to the
Borrower and the Required Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article II on
the same date, all of which Loans are of the same type
(subject to Article VIII) and, except in the case of Base
Rate Loans, have the same Interest Period or initial
Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which all
Banks participate in proportion to their Commitments, while
a "Money Market Borrowing" is a Borrowing under Section 2.03
in which the Bank participants are determined on the basis
of their bids in accordance therewith).
SECTION 1.04. Basis for Ratings. The credit
ratings to be utilized in the determination of a Status are
the ratings assigned to unsecured obligations of the
Borrower without third party credit support. Ratings
assigned to any obligation which is secured or which has the
benefit of third party credit support shall be disregarded.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank
severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to the Borrower pursuant to
this Section from time to time prior to the Termination Date
in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding
shall not exceed the amount of its Commitment. Each
Borrowing under this Section shall be in an aggregate
principal amount of $50,000,000 or any larger multiple of
$5,000,000 (except that any such Borrowing may be in the
20
aggregate amount available in accordance with Section
3.02(c)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this
Section, prepay Loans to the extent permitted by Section
2.11, and reborrow at any time prior to the Termination
Date.
SECTION 2.02. Notice of Committed Borrowing. The
Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 10:30 A.M. (New York City time)
on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the
third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to bear interest initially at the Base Rate or at a
CD Rate or a Euro-Dollar Rate, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the initial Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks to make
offers to make Money Market Loans to the Borrower prior to
the Termination Date. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by telex
or facsimile transmission a Money Market Quote Request
21
substantially in the form of Exhibit B hereto so as to be
received no later than 10:30 A.M. (New York City time) on
(x) the fourth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective) specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
The Borrower may request offers to make Money Market Loans
for more than one Interest Period in a single Money Market
Quote Request. No Money Market Quote Request shall be given
within five Euro-Dollar Business Days (or such other number
of days as the Borrower and the Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission
an Invitation for Money Market Quotes substantially in the
form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance
with this Section.
(d) Submission and Contents of Money Market
22
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.01 not later than (x) 4:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the
Agent or such affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than (x)
one hour prior to the deadline for the other Banks, in the
case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute
Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions of
the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans
for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
23
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market
24
Loans for which offers have been received for each Interest
Period specified in the related Money Market Quote Request,
(B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than 10:30 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
25
respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may deem
appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City
time) on the date of each Borrowing, each Bank participating
therein shall make available its share of such Borrowing, in
Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied,
the Agent will make the funds so received from the Banks
available to the Borrower by 3:00 P.M. (New York City time)
on the date of such Borrowing at the Agent's aforesaid
address.
(c) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsection (b) of this Section
2.04 and the Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have
so made such share available to the Agent, such Bank and the
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 the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, a
rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section
26
2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute
such Bank's Loan included in such Borrowing for purposes of
this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office
in an amount equal to the aggregate unpaid principal amount
of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(a), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount and type of
each Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and
may, if such Bank so elects in connection with any transfer
or enforcement of its Note, endorse on the schedule forming
a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make
any such recordation or endorsement or any error in making
the same shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its
Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans; Termination of
Commitments. (a) The Commitments shall terminate on the
Termination Date, and all Committed Loans shall mature, and
the principal amount thereof shall be due and payable, on
such date.
27
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly
in arrears on each Quarterly Date and on the Termination
Date, and, with respect to the principal amount of any Base
Rate Loan converted to a CD Loan or a Euro-Dollar Loan, on
each date a Base Rate Loan is so converted. Any overdue
principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 1% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
each Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin for such day plus
the Adjusted CD Rate applicable to such Interest Period;
provided that if any CD Loan or any portion thereof shall,
as a result of clause (2)(b) of the definition of Interest
Period, have an Interest Period of less than 30 days, such
portion shall bear interest during such Interest Period at
the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer
than 90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 1% plus
the rate applicable to Base Rate Loans for such day.
28
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be
the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the principal amount of the CD Loan of
such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Adjusted
CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
29
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. S 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during each Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin for such
day plus the London Interbank Offered Rate applicable to
such Interest Period. Such interest shall be payable for
each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of
three months after the first day thereof.
The "London Interbank Offered Rate" applicable to
any Interest Period means a rate of interest determined by
the Agent on the basis of at least two offered rates for
deposits in United States dollars for a period equal to such
Interest Period commencing on the first day of such Interest
Period appearing on the Reuters Screen LIBO Page as of 11:00
A.M. (London time) on the day that is two Euro-Dollar
Business Days prior to the first day of such Interest
Period. If at least two such offered rates appear on the
Reuters Screen LIBO Page, the rate with respect to each
Interest Period will be the arithmetic average (rounded
upwards to the next 1/16th of 1%) of such offered rates. If
fewer than two offered rates appear, the "London Interbank
Offered Rate" in respect of any Interest Period will be the
average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which
deposits in dollars are offered to each of the Euro-Dollar
Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period
in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
30
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate per
annum equal to the sum of 1% plus the rate applicable to
Base Rate Loans for such day.
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the
Base Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated
by this Section. If any Reference Bank does not furnish a
timely quotation necessary to determine an interest rate in
accordance with this Section, the Agent shall determine the
relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or
Banks or, if none of such quotations is available on a
timely basis, the provisions of Section 8.01 shall apply.
31
(h) The "Applicable Margin" with respect to any
Euro-Dollar Loan or CD Loan at any date is the applicable
percentage amount set forth in the table below based on the
Status on such date:
Level I Level II Level III
Status Status Status
Euro-Dollar Loans 0.2700%
0.3000% 0.4250%
CD Loans 0.3950%
0.4250% 0.5500%
SECTION 2.08. Facility Fees. The Borrower shall
pay to the Agent for the account of the Banks ratably a
facility fee at the Facility Fee Rate. Such facility fee
shall accrue from and including the Closing Date to but
excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on the
daily aggregate amount of the Commitments (whether used or
unused). Accrued facility fees shall be payable quarterly
on each Quarterly Date and upon the date of termination of
the Commitments in their entirety.
The "Facility Fee Rate" at any date is: (i)
0.0800% if Level I Status exists at such date, (ii) 0.1000%
if Level II Status exists at such date and (iii) 0.2000% if
Level III Status exists at such date.
SECTION 2.09. Optional Termination or Reduction
of Commitments. The Borrower may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate
the Commitments at any time, if no Loans are outstanding at
such time or (ii) ratably reduce from time to time by an
aggregate amount of $25,000,000 or any larger multiple of
$5,000,000, the aggregate amount of the Commitments in
excess of the aggregate outstanding principal amount of the
Loans.
SECTION 2.10. Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing shall
bear interest initially at the type of rate specified by the
Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by each
Group of Loans (subject in each case to the provisions of
Article VIII), as follows:
32
(i) if such Loans are Base Rate Loans, the
Borrower may elect to convert such Loans to CD Loans as
of any Domestic Business Day or to Euro-Dollar Loans as
of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or
Euro-Dollar Loans or elect to continue such Loans as CD
Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest
Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the
Borrower may elect to convert such Loans to Base Rate
Loans or CD Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in
each case effective on the last day of the then current
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a
"Notice of Interest Rate Election") to the Agent at least
three Euro-Dollar Business Days before the conversion or
continuation selected in such notice is to be effective
(unless the relevant Loans are to be converted from Domestic
Loans to Domestic Loans of the other type or continued as
Domestic Loans of the same type for an additional Interest
Period, in which case such notice shall be delivered to the
Agent at least two Domestic Business Days before such
conversion or continuation is to be effective). A Notice of
Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the
remaining portion to which it does not apply, are each
$50,000,000 or any larger multiple of $5,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be
effective, which shall comply with the applicable
clause of subsection (a) above;
33
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans
are Fixed Rate Loans, the duration of the initial
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans
or Euro-Dollar Loans for an additional Interest Period,
the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition
of Interest Period.
(c) Upon receipt of a Notice of Interest Rate
Election from the Borrower pursuant to subsection (a) above,
the Agent shall promptly notify each Bank of the contents
thereof and such notice shall not thereafter be revocable by
the Borrower. If the Borrower fails to deliver a timely
Notice of Interest Rate Election to the Agent for any Group
of Fixed Rate Loans, such Loans shall be converted into Base
Rate Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.11. Optional Prepayments. (a) The
Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay the Group of Base Rate Loans (or
any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) in whole at any time, or from
time to time in part in amounts aggregating $50,000,000 or
any larger multiple of $5,000,000, by paying the principal
amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several
Banks included in such Group or Borrowing.
(b) The Borrower may, upon at least three
Domestic Business Days' notice to the Agent, in the case of
a Group of CD Loans or upon at least three Euro-Dollar
Business Days' notice to the Agent, in the case of a Group
of Euro-Dollar Loans, prepay the Loans comprising such a
Group on the last day of any Interest Period applicable to
such Group, in whole at any time, or from time to time in
part in amounts aggregating $50,000,000 or any larger
multiple of $5,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date
of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks
included in such Group.
34
(c) Except as provided in subsection (a) above,
the Borrower may not prepay all or any portion of the
principal amount of any Money Market Loan prior to the
maturity thereof.
(d) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later
than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans or the Money
Market LIBOR Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the
Money Market Absolute Rate Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment
thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal is
extended pursuant to this Agreement or by operation of law
or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the 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 Bank on such due date an amount equal to
35
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan or any Fixed Rate Loan is converted to a Base Rate
Loan (pursuant to Article VI or VIII or otherwise) on any
day prior to the last day of an Interest Period applicable
thereto, or if the Borrower fails to borrow or prepay any
Fixed Rate Loans after notice has been given to any Bank in
accordance with Section 2.04(a) or 2.11(d), the Borrower
shall reimburse each Bank as provided in the following
paragraph for any resulting loss or expense incurred by it
(or by a Participant in the related Loan), including
(without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but
excluding loss of the Applicable Margin or any other margin
for the period after any such payment or conversion or
failure to borrow or prepay.
A certificate of each Bank setting forth such
amount or amounts (including the computation of such amount
or amounts) as shall be necessary to compensate such Bank or
a Participant for the out-of-pocket expenses incurred by
such Bank shall be delivered to the Borrower and such amount
or amounts may be reviewed by the Borrower. If the
Borrower, after receipt of any such certificate from such
Bank, disagrees in good faith with such Bank on the
computation of the amount or amounts owed to such Bank
pursuant to this Section 2.13, the Bank and the Borrower
shall negotiate in good faith to promptly resolve such
disagreement. Any payment required to be paid to such Bank
pursuant to this Section 2.13 shall be paid within 30 days
after demand is made therefor (or if there is a
disagreement, after such disagreement is resolved). Each
Bank shall have a duty to mitigate the damages to such Bank
that may arise as a consequence of such funding losses
described above to the extent that such mitigation will not,
in the judgment of such Bank, entail any cost or
disadvantage to such Bank that such Bank is not reimbursed
or compensated for by the Borrower.
36
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
SECTION 2.15. Regulation D Compensation. For so
long as any Bank maintains reserves against "Eurocurrency
liabilities" (or any other category of liabilities which
includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of
extensions of credit or other assets which includes loans by
a non-United States office of such Bank to United States
residents), and as a result the cost to such Bank (or its
Applicable Lending Office) of making or maintaining its
Euro-Dollar Loans is increased, then such Bank may require
the Borrower to pay, contemporaneously with each payment of
interest on the Euro-Dollar Loans, additional interest on
the related Euro-Dollar Loan of such Bank at a rate per
annum up to but not exceeding the excess of (i)(A) the
applicable London Interbank Offered Rate divided by (B) one
minus the Euro-Dollar Reserve Percentage over (ii) the rate
specified in clause (i)(A). Any Bank wishing to require
payment of such additional interest (x) shall so notify the
Borrower, in which case such additional interest on the
Euro-Dollar Loans of such Bank shall be payable to such Bank
at the rate and place indicated in such notice with respect
to each Interest Period commencing at least three Euro-Dollar
Business Days after the giving of such notice and (y)
shall furnish to the Borrower at least five Euro-Dollar
Business Days prior to each date on which interest is
payable on the Euro-Dollar Loans an officers' certificate
setting forth the amount to which such Bank is then entitled
under this Section 2.15 (which shall be consistent with such
Bank's good faith estimate of the level at which the related
reserves are maintained by it).
37
ARTICLE III
CONDITIONS
SECTION 3.01. Closing. The closing hereunder
shall occur upon receipt by the Agent of the following
documents, each dated the Closing Date unless otherwise
indicated:
(a) a duly executed Note for the account of each
Bank dated on or before the Closing Date complying with
the provisions of Section 2.05;
(b) an opinion of the General Counsel or any
Assistant General Counsel of the Borrower,
substantially in the form of Exhibit E hereto;
(c) an opinion of Davis Polk & Wardwell, special
counsel for the Agent, substantially in the form of
Exhibit F hereto; and
(d) all documents the Agent may reasonably
request relating to the existence of the Borrower, the
corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant
hereto, all in form and substance satisfactory to the
Agent.
The Agent shall promptly notify the Borrower and the Banks
of the Closing Date, and such notice shall be conclusive and
binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any
Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) the Closing Date shall have occurred not
later than the Effective Date;
(b) receipt by the Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may
be;
(c) immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans
will not exceed the aggregate amount of the
Commitments;
38
(d) immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(e) the representations and warranties of the
Borrower contained in this Agreement (except the
representations and warranties set forth in Section
4.04(c) and 4.05) shall be true in all material
respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (c), (d)
and (e) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware,
and has all corporate power and all governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted except those which the failure
to have would not have a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery
and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate power, have been
duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any material agreement,
judgment, injunction, order, decree or other material
instrument binding upon the Borrower or result in the
creation or imposition of any Lien on any asset of the
Borrower.
39
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
and the Notes, when executed and delivered in accordance
with this Agreement, will constitute valid and binding
obligations of the Borrower, in each case enforceable
against the Borrower in accordance with their respective
terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting creditors' rights
generally and by general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its subsidiaries as of December 31, 1993 and
the related consolidated statements of income, changes in
stockholders' equity and cash flows for the fiscal year then
ended, reported on by Cooper's & Lybrand and set forth in
the Borrower's 1993 Form 10-K, a copy of which has been
delivered to each of the Banks, present fairly, in all
material respects, the consolidated financial position of
the Borrower and its subsidiaries as of such date and the
consolidated results of their operations and cash flows for
such fiscal year, in conformity with generally accepted
accounting principles.
(b) The unaudited consolidated balance sheet of
the Borrower and its subsidiaries as of March 31, 1994 and
the related unaudited consolidated statements of income and
cash flows for the three months then ended, set forth in the
Borrower's Latest Form 10-Q, a copy of which has been
delivered to each of the Banks, present fairly, in all
material respects, the consolidated financial position of
the Borrower and its subsidiaries as of such date and the
consolidated results of their operations and cash flows for
such three-month period, in conformity with generally
accepted accounting principles for interim financial
information applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section,
subject to normal year-end adjustments.
(c) From March 31, 1994 through the Closing Date
there has been no material adverse change in the
consolidated financial condition of the Borrower and its
subsidiaries.
40
SECTION 4.05. Litigation. There is no action,
suit or proceeding pending against, or to the knowledge of
the Borrower threatened against, the Borrower or any of its
Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable probability of an adverse decision which would
have a Material Adverse Effect, or which in any manner draws
into question the validity of this Agreement or the Notes.
SECTION 4.06. Subsidiaries. Each of the
Borrower's Consolidated Subsidiaries which is a corporation
is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of
incorporation, and has all corporate power and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except those which the failure to have would not
have a Material Adverse Effect.
SECTION 4.07. Not an Investment Company. The
Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.08. Full Disclosure. No written
information heretofore furnished by the Borrower to the
Agent or any Bank pursuant to Section 4.04 of this Agreement
is, and no written information hereafter furnished by the
Borrower to the Agent or any Bank pursuant to Section 5.01
of this Agreement contains or will contain any material
misstatement of any material facts.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has
any Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks:
(a) within 105 days after the end of each fiscal
year of the Borrower, a consolidated balance sheet of
the Borrower and its subsidiaries as of the end of such
41
fiscal year and the related consolidated statements of
income, changes in stockholders' equity and cash flows
for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal
year, all reported on in a manner acceptable to the
Securities and Exchange Commission by Coopers & Lybrand
or other independent public accountants of nationally
recognized standing;
(b) within 60 days after the end of each of the
first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower
and its subsidiaries as of the end of such quarter and
the related consolidated statements of income for such
quarter and the related consolidated statements of
income and cash flows for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting
forth in the case of such statements of income in
comparative form the figures for the corresponding
quarter and in the case of such statements of income
and cash flows the corresponding portion of the
Borrower's previous fiscal year, all certified as to
fairness of presentation, generally accepted accounting
principles and consistency by the chief financial
officer or the chief accounting officer of the
Borrower, subject to normal year end adjustments;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, a certificate of the chief financial officer
or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations
required to establish whether the Borrower was in
compliance with the requirements of Sections 5.03 and
5.04, inclusive, on the date of the consolidated
balance sheet included in such financial statements and
(ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists,
setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect
thereto;
(d) promptly after the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed; and
42
(e) promptly after the filing thereof, copies of
all reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with
the Securities and Exchange Commission.
SECTION 5.02. Maintenance of Existence. The
Borrower will preserve, renew and keep in full force and
effect its corporate existence except as otherwise permitted
under Section 5.06.
SECTION 5.03. Fixed Charge Coverage. The ratio
of Consolidated EBIT to Consolidated Interest Expense will
not, for any period of four consecutive fiscal quarters, be
less than 1.15 to 1.
SECTION 5.04. Debt.
(a) Consolidated Debt determined at the end of
any fiscal quarter will not exceed 850% of Consolidated
Tangible Net Worth determined at the end of such fiscal
quarter, and Consolidated Debt determined at the end of any
fiscal month which is not the last month of a fiscal quarter
will not exceed 850% of the greater of (i) Consolidated
Tangible Net Worth determined at the end of the most
recently ended fiscal quarter or (ii) Consolidated Tangible
Net Worth determined at the end of such fiscal month.
(b) Total Debt of all Restricted Subsidiaries
determined at the end of any fiscal month (excluding Debt of
a Restricted Subsidiary to the Borrower or to a Wholly-Owned
Restricted Subsidiary) will not exceed 10% of Consolidated
Net Tangible Assets determined at the end of such fiscal
month.
SECTION 5.05. Limitation on Secured Debt. The
Borrower will not, nor will it permit any Restricted
Subsidiary to, incur, issue, assume or guarantee any Debt
secured by any Lien on any property or assets of the
Borrower or any Restricted Subsidiary, or on any shares of
stock or Debt of any Restricted Subsidiary, without
effectively providing that the principal of, premium, if
any, and interest, if any, on the Loans (together with, if
the Borrower so determines, any other Debt of the Borrower
or such Restricted Subsidiary, which is not subordinated to
the Loans) shall be secured equally and ratably with (or
prior to) such Debt, so long as any such Debt shall be so
secured, unless, after giving effect thereto, the aggregate
43
amount of all such secured Debt of the Borrower and the
Restricted Subsidiaries would not exceed 10% of Consolidated
Net Tangible Assets of the Borrower and the Restricted
Subsidiaries; provided, however, that no Asset Drop Down
shall, in any event, constitute a Lien; and provided further
that neither the satisfaction and discharge of any Debt
pursuant to any indenture or instrument governing such Debt,
nor the defeasance of any Debt pursuant to any indenture or
instrument governing such Debt, shall be deemed the
incurrence, issue, assumption or guarantee of Debt secured
by a Lien for purposes of this Section. Notwithstanding the
foregoing, this Section shall neither limit nor be deemed or
construed as limiting the right of the Borrower or any
Restricted Subsidiary to incur, issue, assume or guarantee
any Debt secured by any one or more of the following: (1)
Liens on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Borrower; (2) Liens
on property, shares of stock, other equity interests, or
Debt existing at the time of acquisition or repossession
thereof by the Borrower or any Restricted Subsidiary; (3)
Liens on physical property (or any Accounts Receivable
arising in connection with the lease thereof), shares of
stock, other equity interests, or Debt acquired (or, in the
case of physical property, constructed) after the date
hereof by the Borrower or any Restricted Subsidiary, which
Liens are created prior to, at the time of, or within one
year after such acquisition (or, in the case of physical
property, the completion of such construction or
commencement of commercial operation of such property,
whichever is later) to secure any Debt issued, incurred,
assumed or guaranteed prior to, at the time of, or within
one year after such acquisition (or such completion or
commencement, whichever is later) or to secure any other
Debt issued, incurred, assumed or guaranteed at any time
thereafter for the purpose of refinancing all or any part of
such Debt; (4) Liens on Accounts Receivable of the Borrower
or any Restricted Subsidiary arising from or in connection
with transactions entered into by the Borrower or such
Restricted Subsidiary after the date hereof or on Accounts
Receivable acquired by the Borrower or such Restricted
Subsidiary after such date from others, which Liens are
created prior to, at the time of, or within one year after
such Accounts Receivable arise or are acquired or, if later,
the completion of the delivery or installation of the
equipment or goods or the rendering of the services or the
advancement or loaning of funds relating thereto (i) as a
44
result of any guarantee, repurchase or other contingent
(direct or indirect) or recourse obligation of the Borrower
or such Restricted Subsidiary in connection with the
discounting, sale, assignment, transfer or other disposition
of such Accounts Receivable or any interest therein, or (ii)
to secure or provide for the payment of all or any part of
the investment of the Borrower or such Restricted Subsidiary
in any such Accounts Receivable (whether or not such
Accounts Receivable are the Accounts Receivable on which
such Liens are created) or the purchase price thereof or to
secure any debt (including, without limitation, Non-Recourse
Debt) issued, incurred, assumed or guaranteed for the
purpose of financing or refinancing all or any part of such
investment or purchase price; (5) Liens in favor of the
Borrower or any Restricted Subsidiary; (6) Liens in favor of
the United States of America or any State thereof or the
District of Columbia, or any agency, department or other
instrumentality thereof, to secure progress, advance or
other payments pursuant to any contract or provision of any
statute; (7) Liens securing the performance of letters of
credit, bids, tenders, sales contracts, purchase agreements,
leases, surety and performance bonds, and other similar
obligations not incurred in connection with the borrowing of
money; (8) Liens to secure Non-Recourse Debt in connection
with the Borrower or any Restricted Subsidiary engaging in
any leveraged or single-investor or other lease
transactions, whether (in the case of Liens on or relating
to leases or groups of leases or the particular properties
subject thereto) such Liens be on the particular properties
subject to any leases involved in any of such transactions
and/or the rental or other payments or rights under such
leases or, in the case of any group of related or unrelated
leases, on the properties subject to the leases comprising
such group and/or the rental or other payments or rights
under such leases, or on any direct or indirect interest
therein, and whether (in any case) (i) such Liens be created
prior to, at the time of, or at any time after the entering
into of such lease transactions and/or (ii) such leases be
in existence prior to, or be entered into by the Borrower or
such Restricted Subsidiary at the time of or at any time
after, the purchase or other acquisition by the Borrower or
such Restricted Subsidiary of the properties subject to such
leases; and (9) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any of the foregoing; provided, however, that
any such extension, renewal or replacement shall be limited
to all or a part of the property or assets which secured the
45
Lien so extended, renewed or replaced (plus any improvements
on such property).
SECTION 5.06. Consolidations, Mergers and Sales
of Assets. The Borrower covenants that it will not merge or
consolidate with any other corporation or sell or convey all
or substantially all of its assets to any person (other than
such a sale or conveyance to a Subsidiary or any successor
thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Borrower shall be the
continuing corporation or the successor corporation or the
person which acquires by sale or conveyance substantially
all the assets of the Borrower (if other than the Borrower)
shall be a corporation organized under the laws of the
United States of America or any State thereof and shall
expressly assume the due and punctual payment of the
principal of and interest on all the Notes according to
their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this
Agreement to be performed or observed by the Borrower, by
one or more agreements, reasonably satisfactory in form to
the Required Banks, executed and delivered to the Agent by
such corporation, and (ii) the Borrower or such successor
corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such
covenant or condition. In the event of any Asset Drop-Down
after the date of this Agreement, any subsequent sale or
conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down (a "Drop-Down
Subsidiary") will be deemed to be a sale or conveyance of
assets by the Borrower for purposes of this Section 5.06.
SECTION 5.07. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower for general corporate purposes, including, without
limitation, the repayment of maturing commercial paper and
other Debt of the Borrower. None of such proceeds will be
used for the purpose of buying or carrying any "margin
stock" within the meaning of Regulation U.
46
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan, or shall fail to pay within five
Domestic Business Days of the due date thereof any
interest on any Loan, any fees or any other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform
any covenant contained in Sections 5.02, 5.03, 5.04 or
5.06;
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above)
for 30 days after notice thereof has been given to the
Borrower by the Agent at the request of the Required
Banks;
(d) any representation or warranty made by the
Borrower in this Agreement or in any certificate
delivered pursuant to this Agreement shall prove to
have been materially incorrect when made (or deemed
made pursuant to Section 3.02);
(e) the Borrower shall fail to make any payment
or payments, in the aggregate in excess of
$300,000,000, on principal of Debt of the Borrower when
due and such failure shall continue for 30 days after
the due date thereof or, if longer, beyond any
applicable grace periods;
(f) any event or condition shall occur which
results in the acceleration of the maturity of the
principal of any Debt of the Borrower in the aggregate
in excess of $300,000,000 which acceleration shall not
have been rescinded within 30 days;
(g) the Borrower shall commence a voluntary case
seeking liquidation, reorganization or other relief
with respect to itself or its debts under any
47
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such
official in an involuntary case seeking such relief
commenced against it under any such law, or shall make
a general assignment for the benefit of creditors, or
shall admit in writing its inability generally to pay
its debts as they become due;
(h) an order for relief shall be entered against
the Borrower under the federal bankruptcy laws as now
or hereafter in effect in an involuntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, and such decree or
order shall remain undismissed and unstayed for a
period of 20 days;
(i) both (i) a person or group of persons (within
the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) other than AT&T shall
have acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 20% or more of
the outstanding shares of common stock of the Borrower
and (ii) the Borrower shall have ceased to be a
Subsidiary of AT&T; provided that, notwithstanding
clauses (i) and (ii) above, no Event of Default shall
occur under this paragraph (i) if and for so long as
both (x) officers, directors and employees of AT&T
constitute a majority of the Board of Directors of the
Borrower and (y) no person or group of persons has
beneficial ownership of a greater percentage of the
outstanding shares of common stock of the Borrower than
does AT&T;
then, and in every such event, the Agent shall (i) if
requested by Banks having more than 50% in aggregate amount
of the Commitments, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the
48
Borrower declare the Notes (together with accrued interest
thereon) to be, and the Notes (together with accrued
interest thereon) shall thereupon become, immediately due
and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of
Default specified in paragraph (g) or (h) above with respect
to the Borrower, without any notice to the Borrower or any
other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by the Required Banks and
shall thereupon notify all the Banks thereof.
SECTION 6.03 Rescission. If at any time after
termination of the Commitments and/or acceleration of the
maturity of the Loans pursuant to Section 6.01, the Borrower
shall pay all arrears of interest and all payments on
account of principal of the Loans which shall have become
due otherwise than by acceleration (with interest on
principal at the rates specified in this Agreement) and all
Defaults (other than nonpayment of principal of and accrued
interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to
Section 9.05 hereof, then upon the written consent of the
Required Banks and notice to the Borrower, such termination
of the Commitments and/or such acceleration and their
consequences may be rescinded and annulled; but such action
shall not affect any subsequent Default or impair any right
or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Banks to
a decision which may be made at the election of the
Required Banks; they are not intended to benefit the
Borrower and do not give the Borrower the right to require
the Banks to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
49
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same
rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though
it were not the Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower
as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this
50
Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness
or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The
Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and
the Borrower. Upon any such resignation, the Borrower shall
have the right to appoint a successor Agent from among the
Banks. If no successor Agent shall have been so appointed,
and shall have accepted such appointment, within 30 days
after the retiring Agent gives notice of resignation, then
the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized
or licensed under the laws of the United States of America
51
or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this
Article shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall
pay to the Agent for its own account fees in the amounts and
at the times previously agreed upon between the Borrower and
the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any CD Loan, Euro-Dollar Loan or
Money Market LIBOR Loan:
(a) the Agent is advised by the CD Reference
Banks or, under the circumstances contemplated by the
final sentence of the definition of London Interbank
Offered Rate, the Euro-Dollar Reference Banks that
deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant
market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans,
Banks having 50% or more of the aggregate principal
amount of the affected Loans advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate,
as the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the
case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
52
suspension no longer exist, (i) the obligations of the Banks
to make CD Loans or Euro-Dollar Loans, as the case may be,
or to convert outstanding Loans into CD Loans or Euro-Dollar
Loans, as the case may be, shall be suspended and (ii) each
outstanding CD Loan or Euro-Dollar Loan, as the case may be,
shall be converted into a Base Rate Loan on the last day of
the then current Interest Period applicable thereto. Unless
the Borrower notifies the Agent at least one Domestic
Business Day before the date of any Fixed Rate Borrowing for
which a Notice of Borrowing has previously been given that
it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall
instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the
Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day
to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the
date of this Agreement, the adoption of any applicable law,
rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or
its Euro-Dollar Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Agent pursuant
to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank. If such notice is given, each Euro-Dollar Loan of
such Bank then outstanding shall be converted to a Base Rate
Loan either (a) on the last day of the then current Interest
Period applicable to such Euro-Dollar Loan if such Bank may
53
lawfully continue to maintain and fund such Loan to such day
or (b) immediately if such Bank shall determine that it may
not lawfully continue to maintain and fund such Loan to such
day.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable
law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement with respect to which such Bank is entitled
to compensation during the relevant Interest Period under
Section 2.15, special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans and the
result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
54
(b) If any Bank shall have determined that, after
the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then pursuant to paragraph (c)
below, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section. A
certificate of the Bank setting forth such amount or amounts
(including computation of such amount or amounts) as shall
be necessary to compensate the Bank or its Parent as
specified in paragraph (a) or (b) above, as the case may be,
shall be delivered to the Borrower and such amount or
amounts may be reviewed by the Borrower. Unless the
Borrower disagrees in good faith with the computation of the
amount or amounts in such certificate, the Borrower shall
pay to the Bank, within 30 days after receipt by the
Borrower of such certificate delivered by the Bank, the
amount shown as due on any such certificate. If the
Borrower, after receipt of any such certificate from the
Bank, disagrees with the Bank on the computation of the
amount or amounts owed to the Bank pursuant to paragraph (a)
or (b) above, the Bank and the Borrower shall negotiate in
good faith to promptly resolve such disagreement. In either
case, however, the Bank shall have a duty to mitigate the
damages that may arise as a consequence of paragraph (a) or
(b) above (including, without limitation, changing its
Applicable Lending Office) to the extent that such
mitigation will not, in the judgment of the Bank, entail any
cost or disadvantage to the Bank that the Bank is not
reimbursed or compensated for by the Borrower.
55
SECTION 8.04. Taxes. (a) Any and all payments
by the Borrower to or for the account of any Bank or the
Agent hereunder or under any Note shall be made free and
clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges
or withholdings imposed by the United States or any
political subdivision or taxing authority thereof, and all
liabilities with respect thereto, excluding, in the case of
each Bank and the Agent, taxes imposed on its net income,
and franchise taxes imposed on it, by the United States or
any political subdivision or taxing authority thereof (all
such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the 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 Bank or
the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 8.04) such Bank 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) the Borrower
shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv)
the Borrower shall furnish to the Agent, at its address
referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes and any other
excise or property taxes, or charges or similar levies which
arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as
"Other Taxes").
(c) The Borrower agrees to indemnify each Bank
and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as
the case may be) and any liability (including penalties,
interest and reasonable out-of-pocket expenses) arising
therefrom or with respect thereto (other than any such
liability that results from the gross negligence or willful
misconduct of each Bank and the Agent, whether or not such
56
Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other governmental
authority). This indemnification shall be made within 30
days from the date such Bank or the Agent (as the case may
be) makes written demand therefor. If any Bank or the Agent
receives a refund in respect of any Taxes or Other Taxes for
which such Bank or the Agent has received payment from the
Borrower hereunder it shall promptly repay such refund
(including any interest received by such Bank or the Agent
from the taxing authority with respect to the refund with
respect to such Taxes or Other Taxes) to the Borrower, net
of all reasonable out-of-pocket expenses of such Bank;
provided that the Borrower, upon the request of such Bank or
the Agent, agrees to return such refund (plus penalties,
interest or other charges) to such Bank or the Agent in the
event such Bank or the Agent is required to repay such
refund.
(d) Each Bank 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 Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the
case of each other Bank, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, duly executed by such Bank,
certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct
of a trade or business in the United States. If the form
provided by a Bank at the time such Bank 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" as
defined in Section 8.04(a).
(e) Each Bank further agrees to promptly notify
the Borrower if such Bank changes its Applicable Lending
Office and, upon written request from the Borrower, deliver
forms 1001 or 4224 required pursuant to Section 8.04(d)
prior to the immediately following due date of any payment
by the Borrower hereunder.
57
(f) The Borrower shall not be required to pay any
additional amounts to any Bank or the Agent in respect of
Taxes and Other Taxes pursuant to paragraphs (a), (b) and
(c) above if the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank or
Agent to comply with the provisions of paragraphs (d) and
(e) above unless such failure results from (i) a change in
applicable law, regulation or official interpretation
thereof or (ii) an amendment, modification or revocation of
any applicable tax treaty or a change in official position
regarding the application or interpretation thereof, in each
case after the date hereof or after such Bank became a party
hereto; provided, however, that should a Bank, which is
otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower
shall take such steps as such Bank shall reasonably request
to assist such Bank to recover such Taxes.
(g) Any Bank claiming any additional amounts
payable under this Section 8.04 shall (i) to the extent
legally able to do so, upon reasonable written request from
the Borrower, file any certificate or document if such
filing would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue, and the
Borrower shall not be obligated to pay such additional
amounts if, after the Borrower's request, any Bank could
have filed such certificate or document and failed to do so;
or (ii) consistent with legal and regulatory restrictions,
use reasonable efforts to change the jurisdiction of its
Applicable Lending Office if the making of such change would
avoid the need for or reduce the amount of any additional
amounts which may thereafter accrue and would not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank.
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any
Bank to make or maintain Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03 or 8.04 with
respect to its CD Loans or Euro-Dollar Loans and the
Borrower shall, by at least five Euro-Dollar Business Days'
prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower
that the circumstances giving rise to such suspension or
demand for compensation no longer exist:
58
(a) all Loans which would otherwise be made by
such Bank as (or continued as or converted into) CD
Loans or Euro-Dollar Loans, as the case may be, shall
instead be Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the
related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid (or
converted to a Base Rate Loan), all payments of
principal which would otherwise be applied to repay
such Fixed Rate Loans shall be applied to repay its
Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances
giving rise to such notice no longer apply, the principal
amount of each such Base Rate Loan shall be converted into a
CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable
to the related CD Loans or Euro-Dollar Loans of the other
Banks.
SECTION 8.06. Substitution of Bank. If any Bank
(i) has demanded compensation for increased costs pursuant
to Section 8.03 or 8.04 or, (ii) has determined that the
making or continuation of any Euro-Dollar Rate Loan has
become unlawful or impermissible pursuant to Section 8.02
and similar additional interest or compensation has not been
demanded by, or a similar determination has not been made
by, all of the Banks, the Borrower shall have the right to
designate an Assignee which is not an Affiliate of the
Borrower to purchase for cash, pursuant to an Assignment and
Assumption Agreement, the outstanding Loans and Commitment
of such Bank and to assume all of such Bank's other rights
and obligations hereunder without recourse to or warranty
by, or expense to, such Bank, for a purchase price equal to
the principal amount of all of such Bank's outstanding Loans
plus any accrued but unpaid interest thereon and the accrued
but unpaid facility fees in respect of that Bank's
Commitment hereunder plus such amount, if any, as would be
payable pursuant to Section 2.13 if the outstanding Loans of
such Bank were prepaid in their entirety on the date of
consummation of such assignment.
SECTION 8.07. Compensation. The Borrower shall
not be liable for compensating any Bank under Sections 2.13,
59
8.03 and 8.04 for any funding losses, increased costs or
taxes incurred by such Bank more than 30 days prior to such
Bank's written notice of its intention to demand payment
therefor.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or
telex or facsimile number set forth on the signature pages
hereof, (y) in the case of any Bank, at its address or telex
or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other
address or telex or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and
the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means,
when received at the address specified in this Section;
provided that notices to the Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by
the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Agent, including reasonable fees and disbursements of
special counsel for the Agent, in connection with the
60
preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default
or alleged Default hereunder and (ii) if an Event of Default
occurs, all reasonable out-of-pocket expenses incurred by
the Agent and each Bank, including reasonable fees and
disbursements of counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent
and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs and reasonable out-of-pocket expenses of any
kind (including, without limitation, the reasonable fees and
disbursements of counsel) which were actually incurred by
such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or
any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest
due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest
with respect to the Notes held by the Banks shall be shared
by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Notes.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
61
waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal
of or rate of interest on any Loan or any fees hereunder,
(iii) postpone the scheduled maturity of any payment of
principal of or interest on any Loan or any fees hereunder
or for termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any
action under this Section or any other provision of this
Agreement.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of
its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section
9.05 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided
in its participation agreement, be entitled to the benefits
62
of Sections 2.13 and 2.15 and Article VIII with respect to
its participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall
be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or a proportionate part of all, of its rights and
obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially
the form of Exhibit G hereto executed by such Assignee and
such transferor Bank, with (and subject to) the subscribed
consent of the Borrower and the Agent; provided that such
assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Money Market
Loans; and provided further that the interest of the
Assignee shall be in a minimum amount equivalent to an
original Commitment of $15,000,000 and the collective
interest of the transferor Bank and its affiliates shall be
in a minimum amount equivalent to an original Commitment of
$25,000,000 unless, in the case of the transferor Bank and
its affiliates, they have no Commitment after giving effect
to such assignment. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall
be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank with a Commitment as set
forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by
any party shall be required. Upon the consummation of any
assignment pursuant to this subsection (c), the transferor
Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to
the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Agent an administrative fee
for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 8.04.
63
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02, 8.03 or 8.04 requiring such Bank
to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(f) Any Bank may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 9.06, disclose to the
Assignee or Participant or proposed Assignee or Participant
any information relating to the Borrower or its Subsidiaries
furnished to such Bank by the Agent or by or on behalf of
the Borrower; provided that, prior to any such disclosure,
such Assignee or Participant or proposed Assignee or
Participant shall agree to preserve in accordance with
Section 9.11 the confidentiality of any confidential
information described therein.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New
York State court sitting in New York City for purposes of
all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
64
SECTION 9.09. Counterparts; Integration;
Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the
entire agreement and understanding among the parties hereto
and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject
matter hereof. This Agreement shall become effective on and
as of July 11, 1994, provided that on or prior to such date,
the Agent shall have received counterparts hereof signed by
each of the parties hereto (or, in the case of any party as
to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party).
On the Effective Date, the Borrower shall prepay or repay
any loans outstanding under the Existing Credit Agreement,
together with accrued interest thereon and shall pay all
fees accrued thereunder to the Effective Date. The Borrower
and the Banks which are parties to the Existing Credit
Agreement, comprising the "Required Banks" as defined
therein, agree that the commitments thereunder shall
terminate in their entirety on and as of the Effective Date
without further action by any party to the Existing Credit
Agreement.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Confidentiality. Subject to
Section 9.06(f) hereof, the Banks shall hold all nonpublic
information obtained pursuant to the requirements of this
Agreement and identified as such by the Borrower in
accordance with such Bank's customary procedures for
handling confidential information of this nature and in
accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by a bona fide
offeree or transferee in connection with the contemplated
transfer, or as required or requested by any governmental
authority or representative thereof, or pursuant to legal
process, or to its accountants, lawyers and other advisors,
and shall require any such offeree or transferee to agree
(and require any of its offerees, transferees or
participants to agree) to comply with this Section 9.11.
65
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
AT&T CAPITAL CORPORATION
By /s/ Nicholas S. Cyprus
Title: Vice President and
Controller
44 Whippany Road
Morristown, New Jersey 07962
Fax: (201) 397-3106
Commitments
$40,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Matthias Blumshein
Title: Associate
$25,000,000 BARCLAYS BANK PLC
By /s/ Andrew Wynn
Title: Director
$25,000,000 THE CHASE MANHATTAN BANK, N.A.
By /s/ Robert T. Smith
Title: Vice President
66
Commitments
$25,000,000 CHEMICAL BANK
By /s/ Marion J. Henry
Title: Vice President
$25,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ R. Ivosevich
Title: Senior Vice President
$25,000,000 THE FUJI BANK, LIMITED
By /s/ Y. Shitsugu
Title: Vice President and
Manager
$16,250,000 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Judith L. Mayberry
Title: Vice President
$16,250,000 CITIBANK, N.A.
By /s/ James M. Walsh
Title: Attorney-in-fact
67
Commitments
$16,250,000 CREDIT SUISSE
By /s/ Jay Chall
Title: Member of Senior
Management
By /s/ Andrea Shkane
Title: Associate
$16,250,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ Bina R. Dabbah
Title: Vice President
By /s/ Alain M. Bolea
Title: Director
$16,250,000 THE INDUSTRIAL BANK OF JAPAN,
LTD., NEW YORK BRANCH
By /s/ Junri Oda
Title: Senior Vice President
and Senior Manager
$16,250,000 MELLON BANK, N.A.
By /s/ James S. Wolf
Title: First Vice President
68
Commitments
$16,250,000 NATIONSBANK OF NORTH
CAROLINA, N.A.
By /s/ Moses James Sawney
Title: Vice President
$16,250,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ Mark Williams
Title: Vice President
$16,250,000 ROYAL BANK OF CANADA
By /s/ Thomas M. Byrne
Title: Manager
$16,250,000 SOCIETE GENERALE
By /s/ Philippe de Rozieres
Title: Vice President
$16,250,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ Shuntaro Higashi
Title: Joint General Manager
69
Commitments
$16,250,000 SWISS BANK CORPORATION
By /s/ Sean M. Harrigan
Title: Executive Director
Merchant Banking
By /s/ Teresa A. Portela
Title: Associate Director
Merchant Banking
$10,000,000 ABN AMRO BANK N.V. NEW YORK BRANCH
By /s/ Ann K. Schwalbenberg
Title: Vice President
By /s/ James B. Sieger
Title: Vice President
$10,000,000 THE BANK OF NEW YORK
By /s/ Edward F. Ryan, Jr.
Title: Vice President
$10,000,000 BANK OF HAWAII
By /s/ J. Bryan Scearce
Title: Assistant Vice President
70
Commitments
$10,000,000 BANQUE PARIBAS
By /s/ Richard G. Burrows
Title: Vice President
By /s/ Stanley P. Berkman
Title: Senior Vice President
$10,000,000 CIBC INC.
By /s/ Leslie L. Rogers
Title: Vice President
$10,000,000 COMERICA BANK
By /s/ Martin G. Ellis
Title: Assistant Vice President
$10,000,000 COMMERZBANK AKTIENGESELLSCHAFT
NEW YORK BRANCH
By /s/ Juergen Boysen
Title: Senior Vice President
By /s/ Michael D. Hintz
Title: Vice President
71
Commitments
$10,000,000 CONTINENTAL BANK
By /s/ Kathryn N. Robinson
Title: Vice President
$10,000,000 DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Susan A. Hodge
Title: Vice President
By /s/ J. M. Leffler
Title: First Vice President
$10,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Heather R. Johnson
Title: Vice President
$10,000,000 THE NORTHERN TRUST COMPANY
By /s/ Kristina V. L. Warland
Title: Second Vice President
72
Commitments
$10,000,000 TORONTO DOMINION (NEW YORK), INC.
By /s/ C.A. Clause
Title: Vice President
$10,000,000 TRUST COMPANY BANK
By /s/ Marion C. Shields
Title: Vice President
$10,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Linda M. Harris
Title: Senior Vice President
_________________
$500,000,000
Total Commitments
73
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Matthias Blumschein
Title: Associate
60 Wall Street
New York, New York 10260-0060
Attention: Matthias Blumschein
Telex number: 177615
74
EXHIBIT A
NOTE
New York, New York
, 19
For value received, AT&T Capital Corporation, a
Delaware corporation (the "Borrower"), promises to pay to
the order of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in
Federal or other immediately available funds at the office
of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Loans made by the Bank, the respective types
thereof and all repayments of the principal thereof shall be
recorded by the Bank and, if the Bank so elects in
connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be
endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any
such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit
Agreement.
75
This note is one of the Notes referred to in the
$500,000,000 Credit Agreement dated as of July 11, 1994
among the Borrower, the banks listed on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as
Agent (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the mandatory and
optional prepayment hereof and the acceleration of the
maturity hereof.
AT&T CAPITAL CORPORATION
By________________________
Title:
76
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________
Amount of
Amount of Type of Principal Notation
Date Loan Loan Repaid Made By
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
77
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: AT&T Capital Corporation
Re: $500,000,000 Credit Agreement (the "Credit
Agreement") dated as of July 11, 1994 among
the Borrower, the Banks listed on the
signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to
them in the Credit Agreement.
AT&T CAPITAL CORPORATION
By________________________
Title:
_____________________
*Amount must be $5,000,000 or a larger multiple of
$1,000,000.
**Not less than one month (LIBOR Auction) or not less
than 14 days (Absolute Rate Auction), subject to the
provisions of the definition of Interest Period.
78
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to AT&T
Capital Corporation (the "Borrower")
Pursuant to Section 2.03 of the $500,000,000
Credit Agreement dated as of July 11, 1994 among the
Borrower, the Banks parties thereto and the undersigned, as
Agent, we are pleased on behalf of the Borrower to invite
you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Please respond to this invitation by no later than
[4:00 P.M.] [9:30 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
79
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York,
as Agent
Re: Money Market Quote to AT&T Capital
Corporation (the "Borrower")
In response to your invitation on behalf of the
Borrower dated _____________, 19__, we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $____________.]**
__________
* As specified in the related Invitation.
(Notes continued on following page)
80
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the applicable
conditions set forth in the $500,000,000 Credit Agreement
dated as of July 11, 1994 among the Borrower, the Banks
listed on the signature pages thereof and yourselves, as
Agent, irrevocably obligates us to make the Money Market
Loan(s) for which any offer(s) are accepted, in whole or in
part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 14 days, as
specified in the related Invitation. No more than five bids
are permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest
1/10,000th of 1%).
81
EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am [General Counsel] [Assistant General Counsel]
of AT&T Capital Corporation (the "Borrower"), and as such,
have acted as counsel for the Borrower in connection with
the $500,000,000 Credit Agreement (the "Credit Agreement")
dated as of July 11, 1994 among the Borrower, the banks
listed on the signature pages thereof and Morgan Guaranty
Trust Company of New York, as Agent. Terms defined in the
Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the request of the
Borrower pursuant to Section 3.01(b) of the Credit
Agreement.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of Delaware, and has all corporate power and all
82
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except those which the failure to have would not
have a Material Adverse Effect.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate power, have been duly authorized by
all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower
or of any material agreement, judgment, injunction, order,
decree or other material instrument binding upon the
Borrower or result in the creation or imposition of any Lien
on any asset of the Borrower.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes constitute
valid and binding obligations of the Borrower, in each case
enforceable against the Borrower in accordance with their
respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting creditors'
rights generally and by general principles of equity
(regardless of whether considered in a proceeding in equity
or at law).
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against,
the Borrower or any of its Consolidated Subsidiaries before
any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable probability of an
adverse decision which would have a Material Adverse Effect
or which in any manner draws into question the validity of
the Credit Agreement or the Notes.
5. Each of the Borrower's Consolidated
Subsidiaries which is a corporation is a corporation validly
existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate power
and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, except those which the failure to have would not
have a Material Adverse Effect.
83
I am a member of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, I express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
or furnished to any other person without my prior written
consent.
Very truly yours,
84
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the
$500,000,000 Credit Agreement (the "Credit Agreement") dated
as of July 11, 1994 among AT&T Capital Corporation, a
Delaware corporation (the "Borrower"), the banks listed on
the signature pages thereof (the "Banks") and Morgan
Guaranty Trust Company of New York, as Agent (the "Agent"),
and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section
3.01(c) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate power and have been duly authorized
by all necessary corporate action.
85
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes constitute
valid and binding obligations of the Borrower, in each case
enforceable against the Borrower in accordance with their
respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting creditors'
rights generally and by general principles of equity
(regardless of whether considered in a proceeding in equity
or at law).
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person without our prior written consent.
Very truly yours,
86
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
AT&T CAPITAL CORPORATION (the "Borrower") and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the $500,000,000 Credit
Agreement dated as of July 11, 1994 among the Borrower, the
Assignor and the other Banks party thereto, as Banks, and
the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Loans to the Borrower
in an aggregate principal amount at any time outstanding not
to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by
the Assignor under the Credit Agreement in the aggregate
principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its
outstanding Committed Loans, and the Assignee proposes to
accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
87
otherwise defined herein shall have the respective meanings
set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower
and the Agent and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under
the Credit Agreement with a Commitment in an amount equal to
the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount
and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein
shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds the amount heretofore agreed between them.
It is understood that commitment and/or facility fees
accrued to the date hereof in respect of the Assigned Amount
are for the account of the Assignor and such fees accruing
from and including the date hereof are for the account of
the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party
hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest
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therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent.
This Agreement is conditioned upon the consent of the
Borrower and the Agent pursuant to Section 9.06(c) of the
Credit Agreement. The execution of this Agreement by the
Borrower and the Agent is evidence of this consent.
Pursuant to Section 9.06(c) the Borrower agrees to execute
and deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_________________________
Title:
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[ASSIGNEE]
By__________________________
Title:
AT&T CAPITAL CORPORATION
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title: