AMENDMENT
THIS AMENDMENT, dated as of January 12, 1995, among GENERAL
SIGNAL CORPORATION (the "Company") and the undersigned commercial banking
institutions (herein called collectively "Banks").
WITNESSETH:
WHEREAS, the Company and the Banks are parties to a certain Four
Year Credit Agreement, dated as of January 12, 1994 (the "Four Year Agreement");
and
WHEREAS, the parties desire to amend certain terms
of the Agreement;
NOW, THEREFORE, in consideration for the agreements herein con
tained, the parties hereto hereby agree as follows:
1. Except as otherwise defined herein, the capitalized terms used
herein shall have the meanings respectively ascribed to them in the Four Year
Agreement.
2. The aggregate amount of the Credit as set forth in Sec tion
1.1.4 of the Agreement, is hereby increased to an amount no to exceed at any one
time $360,000,000 (or such greater or lesser amount as may be determined
pursuant to Section 1.1 of the Agreement). Each Bank's Commit ment is hereby
increased to the amount set forth opposite such Bank's sig nature hereto, as
such amount may be reduced or increased from time to time pursuant to Sections
1.1.6, 1.1.7 and 1.1.8 or Section 13.5.
3. The "Revolver Expiration Date" is hereby amended to mean the
earlier of January 11, 2000 or the date of termination in whole of the
Commitments. All references to the "Four Year Agreement" shall be deemed to
refer to the Agreement as hereby amended.
4. The table in Section 3.1.8, Applicable Margin, is hereby
deleted and replaced with the following:
Public Debt Rating Eurodollar Margin CD Margin
- - ------------------ ----------------- ---------
Level 1: 0.175% 0.300%
AA-/Aa3 or higher
Level 2: 0.225% 0.350%
A-/A3 or higher, but
less than Level 1
Level 3: 0.3625% 0.4875%
BBB-/Baa3 or higher,
but less than Level 2
Level 4: 0.500% 0.625%
Less than BBB-/Baa3
5. The table in Section 3.2, Facility Fee, is hereby deleted and
replaced with the following:
-2-
Public Debt Rating Facility Fee Percentage
- - ------------------ -----------------------
Level 1: 0.100%
AA-/Aa3 or higher
Level 2: 0.120%
A-/A3 or higher, but less than
Level 1
Level 3: 0.1875%
BBB-/Baa3 or higher, but less
than Level 2
Level 4: 0.275%
Less than BBB-/Baa3
6. Except as set forth in this Amendment, all terms and con ditions
of the Four Year Agreement shall remain unchanged.
-3-
IN WITNESS WHEREOF, the Company and each Bank have caused this
Amendment to be executed, as of the day and year first above written, by one of
its officers thereunto duly authorized.
GENERAL SIGNAL CORPORATION
By: /s/ Julian B. Twombly
---------------------------------
Vice President and
Treasurer
One High Ridge Park
Stamford, Connecticut 06904
Attention: Treasurer
Telecopier No.: (203) 329-4365
-4-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$40,000,000
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Edward F. McNulty
----------------------------
Title: Managing Director
Lending Office for Loans
The Chase Manhattan Bank, N.A.
One Chase Plaza, 17th Floor
New York, New York 10081
Attn: Edward F. McNulty
Telecopier No.: (212) 552-1457
-5-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$40,000,000
CHEMICAL BANK
By: /s/ J.B. Treger
--------------------------
Title: Vice President
Lending Office for Loans
Chemical Bank
270 Park Avenue
New York, New York 10017
Attn: James B. Treger
Telecopier No.: (212) 270-7138
-6-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$40,000,000
NATIONSBANK OF NORTH CAROLINA,
N.A.
By: /s/ M.K. Vandenberg
----------------------------
Title: Senior Vice President
Lending Office for Loans
NationsBank of North
Carolina, N.A.
NationsBank Plaza
Charlotte, North Carolina 28225
Attn: Lisa McClelland,
NC1-002-17-21
Telecopier No.: (704) 386-8694
cc: Margaret K. Vandenberg
NationsBank of North
Carolina, N.A.
767 Fifth Avenue
New York, New York 10153
Telecopier No.: (212) 751-6909
-7-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$40,000,000
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Linda M. Harris
-----------------------------
Title: Senior Vice President
Lending Office for Loans
Wachovia Bank of Georgia, N.A
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Walter R. Gillikin
Telecopier No.: (404) 332-6898
-8-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ E.L. Gordon
-------------------------
Title: Authorized Signatory
Lending Office for Loans
Canadian Imperial Bank of
Commerce
425 Lexington Avenue
New York, New York 10017
Attn: E. Lindsay Gordon
Telecopier No.: (212) 856-3991
-9-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
COMMERZBANK A.G.
By: /s/ Juergen Boysen
-----------------------------
Title: Senior Vice President
By: /s/ Michael D. Hintz
-----------------------------
Title: Senior Vice President
Lending Office for Loans
CommerzBank A.G.
2 World Financial Center
New York, New York 10281-1050
Attn: Michael Hintz
Telecopier No.: (212) 266-7235
-10-
[4-Year Facility, As Amended]
Amount of
Commitment
- - -----------
$25,000,000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Hames W. Peterson
---------------------------
Title: Vice President
Lending Office for Loans
The First National Bank of Chicago
153 West 51st Street
New York, New York 10019
Attn: James W. Peterson
Telecopier No.: (212) 373-1388
-11-
[4-Year Facility, As Amended]
Amount of
Commitment
- - -----------
$25,000,000
THE HONGKONG & SHANGHAI BANKING
CORPORATION LIMITED
By: /s/ J.S. Dykes
--------------------------
Title: Vice President
Lending Office for Loans
The Hongkong & Shanghai
Banking Corporation Limited
140 Broadway, 4th Floor
New York, New York 10015
Attn: Jeffry S. Dykes
Telecopier No. (212) 658-5109
-12-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
NATIONAL WESTMINSTER BANK Plc
By: /s/ Anne Marie Torre
---------------------------
Title: Senior Vice President
Lending Office for Loans
National Westminster Bank Plc
Corporate and Institutional Finance
175 Water Street
New York, New York 10038-4924
Attn: Jordon Fragiacomo
Telecopier No.: (212) 602-4500
-13-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
THE NORTHERN TRUST COMPANY
By: /s/ J. C. McCall, III
--------------------------
Title: Vice President
Lending Office for Loans
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinios 60675
Attn: J. Chip McCall, III
Telecopier No.: (312) 444-3508
-14-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
THE SANWA BANK LIMITED
By: /s/ Stephen C. Small
Title: Vice President
Lending Office for Loans
The Sanwa Bank Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Stephen C. Small
Telecopier No.: (212) 754-1304
-15-
[4-Year Facility, As Amended]
Amount of
Commitment
- - ----------
$25,000,000
SHAWMUT BANK
By: /s/ Robert Surdham,Jr.
--------------------------
Title: Director
Lending Office for Loans
Shawmut Bank
777 Main Street
Hartford, CT 06115
Attn: Robert Surdham, Jr.
Telecopier No.: (203) 358-2039
Four-Year Credit Agreement
AMENDMENT NO. 2
THIS AMENDMENT NO. 2, dated as of May 31, 1996, among GENERAL
SIGNAL CORPORATION (the "Company") and the undersigned commercial banking
institutions (herein called collectively "Banks").
WITNESSETH:
WHEREAS, the Company and the Banks are parties to a certain Four
Year Credit Agreement, dated as of January 12, 1994 (the "Four Year Agreement");
WHEREAS, the Company and the Banks amended the Four Year Agree
ment as of January 12, 1995; and
WHEREAS, the parties desire to further amend certain terms of the
Agreement.
NOW, THEREFORE, in consideration for the agreements herein con
tained, the parties hereto hereby agree as follows:
1. Except as otherwise defined herein, the capitalized terms used
herein shall have the meanings respectively ascribed to them in the Four Year
Agreement.
2. Each Bank's Commitment shall be the amount set forth op posite
its signature hereto, as such amount may be reduced or increased from time to
time pursuant to Sections 1.1.6, 1.1.7 and 1.1.8 or Section 13.5 of the Four
Year Agreement.
3. The "Revolver Expiration Date" is hereby amended to mean the
earlier of May 30, 2001 or the date of termination in whole of the Com mitments.
All references to the "Four Year Agreement" shall be deemed to refer to the
Agreement as hereby amended.
4. The table in Section 3.1.8, Applicable Margin, is hereby
deleted and replaced with the following:
Public Debt Rating Eurodollar Margin CD Margin
- - ------------------ ----------------- ---------
Level 1: 0.16% 0.285%
AA-/Aa3 or higher
Level 2: 0.20% 0.325%
A-/A3 or higher, but
less than Level 1
Level 3: 0.30% 0.425%
BBB-/Baa3 or higher,
but less than Level 2
Level 4: 0.50% 0.625%
Less than BBB-/Baa3
-2-
5. The table in Section 3.2, Facility Fee, is hereby deleted and
replaced with the following:
Public Debt Rating Facility Fee Percentage
- - ------------------ -----------------------
Level 1: 0.08%
AA-/Aa3 or higher
Level 2: 0.10%
A-/A3 or higher, but less than
Level 1
Level 3: 0.175%
BBB-/Baa3 or higher, but less
than Level 2
Level 4: 0.275%
Less than BBB-/Baa3
6. Except as set forth in this Amendment, all terms and con
ditions of the Four Year Agreement shall remain unchanged.
-3-
IN WITNESS WHEREOF, the Company and each Bank have caused this
Amendment to be executed, as of the day and year first above written, by one of
its officers thereunto duly authorized.
GENERAL SIGNAL CORPORATION
By: /s/ Julian B. Twombly
-----------------------------
Vice President and
Treasurer
One High Ridge Park
Stamford, Connecticut 06904
Attention: Treasurer
Telecopier No.: (203) 329-4365
-4-
[4-Year Facility, Amendment No.2]
Amount of
Commitment
- - ----------
$50,000,000
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Claudia Stone
------------------------
Title: Managing Director
Lending Office for Loans
The Chase Manhattan Bank,
N.A.
One Chase Plaza, 17th Floor
New York, New York 10081
Attn: Claudia Stone
Telecopier No.: (212) 552-1457
-5-
[4-Year Facility, Amendment
No. 2]
Amount of
Commitment
- - -----------
$50,000,000
NATIONSBANK, N.A.
By: /s/ M.K. Vandenberg
------------------------------
Title: Senior Vice President
Lending Office for Loans
NationsBank, N.A.
NationsBank Plaza
Charlotte, North Carolina 28225
Attn: Lisa McClelland, NC1-002-17-21
Telecopier No.: (704) 386-8694
cc: Margaret K. Vandenberg
NationsBank, N.A.
767 Fifth Avenue
New York, New York 10153
Telecopier No.: (212) 751-6909
-6-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - ----------
$50,000,000
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Jane Deaver
-----------------------------
Title: Vice President
Lending Office for Loans
Wachovia Bank of Georgia, N.A
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Jane Deaver
Telecopier No.: (404) 332-6898
-7-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - ----------
$30,000,000
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ E.L. Gordon
--------------------------
Title: Authorized Signatory
Lending Office for Loans
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attn: E. Lindsay Gordon
Telecopier No.: (212) 856-3991
-8-
[4-Year Facility, Amendment No.2]
Amount of
Commitment
- - ----------
$30,000,000
COMMERZBANK A.G.
By: /s/ Sean Harrigan
--------------------------
Title: Senior Vice President
By: /s/ Juergen Boysen
-----------------------------
Title: Senior Vice President
Lending Office for Loans
CommerzBank A.G.
2 World Financial Center
New York, New York 10281-1050
Attn: Andrew Campbell
Telecopier No.: (212) 266-7235
-9-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - ----------
$30,000,000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Daniel Leuchor
-----------------------------
Title: Vice President
Lending Office for Loans
The First National Bank of Chicago
153 West 51st Street
New York, New York 10019
Attn: James W. Peterson
Telecopier No.: (212) 373-1388
-10-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - -----------
$30,000,000
MARINE MIDLAND BANK
By: /s/ William M. Holland
------------------------------
Title: Vice President
Lending Office for Loans
Marine Midland Bank
Asset Syndication Office
1 Marine Midland Center
Buffalo, New York 14203
Attn: Patricia Miller
Telecopier No. (716) 841-2325
-11-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - ----------
$30,000,000
NATIONAL WESTMINSTER BANK Plc
By: /s/ Anne Marie Torre
-----------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
New York Branch
175 Water Street
New York, New York 10038-4924
Attn: Anne Marie Torre
Telecopier No.: (212) 602-4500
By: /s/ Anne Marie Torre
-------------------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
Nassau Branch
175 Water Street
New York, New York 10038-4924
Attn: Anne Marie Torre
Telecopier No.: (212) 602-4500
-12-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - -----------
$30,000,000
THE SANWA BANK LIMITED
By: /s/ Stephen C. Small
-------------------------
Title: Vice President
Lending Office for Loans
The Sanwa Bank Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Stephen C. Small
Telecopier No.: (212) 754-1304
-13-
[4-Year Facility, Amendment No. 2]
Amount of
Commitment
- - ----------
$30,000,000
FLEET NATIONAL BANK
By: /s/ Gary Kearns
____________________________
Title: Senior Vice President
Lending Office for Loans
Fleet National Bank
One Landmark Square
Stamford, CT 06901 CTFD0752
Attn: Gwen Pesce
cc: Barbara Agostini
Telecopier No.: (203) 358-6111
364 Day Credit Agreement
AMENDMENT NO. 1
THIS AMENDMENT NO. 1, dated as of May 31, 1996, among GENERAL
SIGNAL CORPORATION (the "Company") and the undersigned commercial banking
institutions (herein called collectively "Banks").
WITNESSETH:
WHEREAS, the Company and the Banks are parties to a certain 364
Day Credit Agreement, dated as of June 1, 1995 (the "364 Day Agreement"); and
WHEREAS, the parties desire to further amend certain terms of the
Agreement.
NOW, THEREFORE, in consideration for the agreements herein con
tained, the parties hereto hereby agree as follows:
1. Except as otherwise defined herein, the capitalized terms used
herein shall have the meanings respectively ascribed to them in the 364 Day
Agreement.
2. Each Bank's Commitment shall be the amount set forth op posite
its signature hereto, as such amount may be reduced or increased from time to
time pursuant to Sections 1.1.6, 1.1.7 and 1.1.8 or Section 13.5 of the 364 Day
Agreement.
3. The "Revolver Expiration Date" is hereby amended to mean the
earlier of May 30, 1997 or the date of termination in whole of the Com mitments.
All references to the "364 Day Agreement" shall be deemed to re fer to the
Agreement as hereby amended.
4. The table in Section 3.1.8, Applicable Margin, is hereby
deleted and replaced with the following:
Public Debt Rating Eurodollar Margin CD Margin
- - ------------------ ----------------- ---------
Level 1: 0.200% 0.325%
AA-/Aa3 or higher
Level 2: 0.225% 0.350%
A-/A3 or higher, but
less than level 1
Level 3: 0.375% 0.500%
BBB-/Baa3 or higher,
but less than level 2
Level 4: 0.625% 0.750%
Less than BBB-/Baa3
5. The table in Section 3.2, Facility Fee, is hereby deleted and
replaced with the following:
-2-
Public Debt Rating Facility Fee Percentage
- - ------------------ -----------------------
Level 1: 0.040%
AA-/Aa3 or higher
Level 2: 0.075%
A-/A3 or higher, but less than
level 1
Level 3: 0.100%
BBB-/Baa3 or higher, but less
than Level 2
Level 4: 0.150%
Less than BBB-/Baa3
6. Except as set forth in this Amendment, all terms and con-
ditions of the 364 Day Agreement shall remain unchanged.
IN WITNESS WHEREOF, the Company and each Bank have caused this
Amendment to be executed, as of the day and year first above written, by one of
its officers thereunto duly authorized.
GENERAL SIGNAL CORPORATION
By: /s/ Julian B. Twombly
-----------------------------
Vice President and
Treasurer
One High Ridge Park
Stamford, Connecticut 06904
Attention: Treasurer
Telecopier No.: (203) 329-4365
-3-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$25,000,000
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Claudia Stone
---------------------------
Title: Managing Director
Lending Office for Loans
The Chase Manhattan Bank, N.A.
One Chase Plaza, 17th Floor
New York, New York 10081
Attn: Claudia Stone
Telecopier No.: (212) 552-1457
-4-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$25,000,000
NATIONSBANK, N.A.
By: /s/ M.K. Vandenberg
-------------------------
Title: Senior Vice
President
Lending Office for Loans
NationsBank, N.A.
NationsBank Plaza
Charlotte, North Carolina 28225
Attn: Lisa McClelland,
NC1-002-17-21
Telecopier No.: (704) 386-8694
cc: Margaret K. Vandenberg
NationsBank, N.A.
767 Fifth Avenue
New York, New York 10153
Telecopier No.: (212) 751-6909
-5-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$25,000,000
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Jane Deaver
---------------------------
Title: Vice President
Lending Office for Loans
Wachovia Bank of Georgia, N.A
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Jane Deaver
Telecopier No.: (404) 332-6898
-6-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ E.L.Gordon
-------------------------------
Title: Authorized Signatory
Lending Office for Loans
Canadian Imperial Bank of
Commerce
425 Lexington Avenue
New York, New York 10017
Attn: E. Lindsay Gordon
Telecopier No.: (212) 856-3991
-7-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
COMMERZBANK A.G.
By: /s/ Sean Harrigan
-----------------------------
Title: Senior Vice President
By: /s/ Juergen Boysen
------------------------------
Title: Senior Vice President
Lending Office for Loans
CommerzBank A.G.
2 World Financial Center
New York, New York 10281-1050
Attn: Andrew Campbell
Telecopier No.: (212) 266-7235
-8-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Daniel Leuchor
-----------------------------
Title: Vice President
Lending Office for Loans
The First National Bank of Chicago
153 West 51st Street
New York, New York 10019
Attn: James W. Peterson
Telecopier No.: (212) 373-1388
-9-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
MARINE MIDLAND BANK
By: /s/ William M. Holland
____________________________
Title: Vice President
Lending Office for Loans
Marine Midland Bank
Asset Syndication Office
1 Marine Midland Center
Buffalo, New York 14203
Attn: Patricia Miller
Telecopier No.: (716) 841-2325
-10-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
NATIONAL WESTMINSTER BANK Plc
By: /s/ Anne Marie Torre
-----------------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
New York Branch
175 Water Street
New York, New York 10038-4924
Attn: Anne Marie Torre
Telecopier No.: (212) 602-4500
By: /s/ Anne Marie Torre
-----------------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
Nassau Branch
175 Water STreet
New York, New York 10038-4924
Attn: Anne Marie Torre
Telecopier No.: (212) 602-4500
-11-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - ----------
$15,000,000
THE SANWA BANK LIMITED
By: /s/ Stephen C. Small
------------------------
Title: Vice President
Lending Office for Loans
The Sanwa Bank Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Stephen C. Small
Telecopier No.: (212) 754-1304
-12-
[364 Day Facility, Amendment No. 1]
Amount of
Commitment
- - -----------
$15,000,000
FLEET NATIONAL BANK
By: /s/ Gary Kearns
_____________________________
Title: Senior Vice President
Lending Office for Loans
Fleet National Bank
One Landmark Square
Stamford, CT 06901 CTFD0752
Attn: Gwen Pesce
cc: Barbara Agostini
Telecopier No.: (203) 358-6111
[CONFORMED AS EXECUTED]
364 DAY CREDIT AGREEMENT
dated as of June 1, 1995
among
GENERAL SIGNAL CORPORATION
and
VARIOUS COMMERCIAL BANKING INSTITUTIONS
364 DAY CREDIT AGREEMENT
THIS 364 DAY CREDIT AGREEMENT, dated as of June 1, 1995 (the
"Agreement"), among GENERAL SIGNAL CORPORATION, a New York corporation (the
"Company"), each other Borrower hereunder, and the undersigned commercial
banking institutions (herein called collectively "Banks").
W I T N E S S E T H:
WHEREAS, the Company desires by this Agreement (capitalized terms
being used herein with the meanings respectively ascribed to them in Article
XII) to obtain commitments for revolving credit loans to be made in an aggregate
outstanding principal amount not to exceed $200,000,000 on or prior to the
Revolver Expiration Date and to provide for the making of Market Rate Loans by
the several Banks; and
WHEREAS, Banks are willing, severally and not jointly, upon the terms
and conditions hereinafter set forth, to extend such revolving loan commitments
and to make loans pursuant thereto and to make non-committed Market Rate Loans
for general working capital and other corporate purposes (including, without
limitation, acquisitions and the purchase of securities and assets, including
repurchases of the Company's securities);
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
COMMITMENTS OF BANKS; BORROWING PROCEDURES AND CONDITIONS
SECTION 1.1. Commitments. Subject to the terms and conditions of
-----------
this Agreement, each Bank severally agrees to make Revolving Loans hereunder to
any Borrower up to the maximum amounts specified in Section 1.1.4 as follows:
------- -----
SECTION 1.1.1. Revolving Loan Commitments. Loans on a revolving
--------------------------
basis (i.e., subject to the terms and conditions of this Agreement, Revolving
---
Loans may be borrowed, prepaid, repaid and re-borrowed) from time to time on or
before the Revolver Expiration Date to any Borrower equal to such Bank's
Percentage of the aggregate amount of such Revolving Loan (each herein called a
"Revolving Loan") except as each Bank's obligation to make Revolving Loans may
be created or modified as provided in this Section 1.1 and Section 13.5.
------- --- ------- ----
-2-
SECTION 1.1.2. Term Loan Commitments. A loan (herein called a "Term
---------------------
Loan") on the Revolver Expiration Date in such Bank's Percentage of such
aggregate amount as Borrower may request from all Banks, such aggregate amount
not to exceed the amount of the Credit.
SECTION 1.1.3. Domestic and Eurodollar Loan Commitments. Subject to
----------------------------------------
the terms and conditions of this Agreement, each Revolving Loan and each Term
Loan shall be either a Domestic Loan or a Eurodollar Loan, as Borrower shall
request in the relevant notice of borrowing pursuant to Section 1.2 or 5.4, it
------- --- ---
being understood that both Domestic Loans and Eurodollar Loans may be
outstanding at the same time. As to any Eurodollar Loan or Domestic Loan, each
Bank may, if it so elects (which election shall be made by such Bank in a manner
consistent with its undertaking contained in Section 5.7 and otherwise in good
------- ---
faith with a view to not increasing unnecessarily the obligations of any
Borrower hereunder), fulfill its aforesaid commitment by causing a foreign
branch or affiliate of such Bank (such foreign branch or affiliate or any U.S.
branch or affiliate from which a Bank funds a Eurodollar Loan herein called such
Bank's "Eurodollar Office") to make such Loan, provided that in such event for
the purposes of this Agreement such Eurodollar Loan shall be deemed to have been
made by such Bank, and the obligation of Borrower to repay such Eurodollar Loan
shall nevertheless be to such Bank and shall be deemed held by it, to the extent
of such Eurodollar Loan, for the account of such branch or affiliate.
SECTION 1.1.4. Commitment Limits. The aggregate principal amount of
-----------------
Revolving Loans and Term Loans which any Bank shall be committed to lend to
Borrower shall not at any one time exceed such Bank's Commitment; and the
aggregate amount of the Credit shall not at any one time exceed $190,000,000 (or
such greater or lesser amount as may be determined pursuant to this Section
-------
1.1). Except as may be otherwise required by Section 5.6, no Bank's obligation
- - --- ------- ---
to make any Revolving Loan or Term Loan shall, the ratability provisions of
Section 1.1.3 to the contrary notwithstanding, be affected by any other Bank's
- - ------- -----
failure or inability to make any Revolving Loan or Term Loan.
SECTION 1.1.5. Mandatory Reduction of the Commitments. On the
--------------------------------------
Revolver Expiration Date the Commitment of each Bank shall be reduced to zero;
provided that on the Revolver Expiration Date any Borrower may borrow a Term
- - --------
Loan pursuant to Section 1.2. The aggregate amount of the Commitments of the
------- ---
Banks once reduced pursuant to this Section 1.1.5 may not be reinstated.
------- -----
-3-
SECTION 1.1.6. Optional Pro Rata Reduction. The Company shall have
---------------------------
the right, at any time or from time to time, upon not less than three Business
Days' prior notice to the Depositary Bank (and the Depositary Bank shall
promptly notify each Bank of each termination or reduction) to terminate or
reduce, in whole or in part, on a pro rata basis the unused portions of the
respective Commitments of the Banks, provided that each partial reduction shall
--------
be in an aggregate principal amount of $5,000,000 or a multiple thereof. The
aggregate amount of the Commitments of the Banks once reduced pursuant to this
Section 1.1.6 may not be reinstated, except pursuant to Section 1.1.8.
- - ------- ----- ------- -----
SECTION 1.1.7. Optional Non-Pro Rata Reduction. The Company shall
-------------------------------
have the right, upon not less than five Business Days' prior notice to a Bank
(with a copy to the Depositary Bank), to terminate in whole such Bank's
Commitment; provided, that at the time such notice of termination is given (A)
--------
no Credit Suspension Event has occurred and is continuing and (B) either (i) the
Public Debt Rating of the Company is A-/A3 or higher or (ii) concurrently with
the termination of such Bank's Commitment a Commitment Increase becomes
effective pursuant to Section 1.1.8 in an amount not less than the Commitments
------- -----
concurrently being terminated pursuant to this Section 1.1.7. Such termination
------- -----
shall be effective, (A) with respect to such Bank's unused Commitment, on the
date set forth in such notice, provided, however, that such date shall be no
-------- -------
earlier than ten Business Days after receipt of such notice and (B) with respect
to each Loan outstanding to such Bank, on the last day of the then current
Interest Period relating to such Loan. Upon termination of a Bank's Commitment
under this Section 1.1.7, the Company will pay or cause to be paid all principal
------- -----
of, and interest accrued to the date of such payment on Loans owing to such Bank
and pay any facility fees or other fees payable to such Bank pursuant to Section
-------
3.2, and all other amounts payable to such Bank hereunder; and upon such
- - ---
payments, the obligations of such Bank hereunder shall, by the provisions
hereof, be released and discharged. The aggregate amount of the Commitments of
the Banks once reduced pursuant to this Section 1.1.7, may not be reinstated,
------- -----
except pursuant to Section 1.1.8.
------- -----
SECTION 1.1.8. Increase in Commitments. The Company may at any time,
-----------------------
by notice to the Depositary Bank, propose that the aggregate of the Commitments
be increased in excess of the aggregate of the Commitments then in effect (a
"Commitment Increase"), effective as of a date prior to the Revolver Expiration
Date (the "Increase Date") as to which agreement is to be reached by an earlier
date specified in such notice (the
-4-
"Commitment Date"); provided, however, that (A) the minimum proposed Commitment
-------- -------
Increase per notice shall be in an amount no less than $5,000,000, (B) no Event
of Default has occurred and is continuing and (C) the warranties of the Company
in Article VII shall be true and correct in all material respects with the same
------- ---
effect as if made on such Increase Date. The Depositary Bank shall notify the
Banks thereof promptly upon its receipt of any such notice. If agreement is
reached on or prior to the Commitment Date with one or more Banks and Assuming
Banks, if any, as to a Commitment Increase (which may be less than specified in
the applicable notice from the Company), such agreement to be evidenced by a
notice in reasonable detail from the Company to the Depositary Bank on or prior
to the Commitment Date, the Assuming Banks, if any, shall become Banks hereunder
as of the Increase Date and the Commitments of such Banks and such Assuming
Banks shall become or be, as the case may be, as of the Increase Date the
amounts specified in such notice (and the Depositary Bank shall give notice
thereof to the Banks (including such Assuming Banks)); provided, however, that:
-------- -------
(a) the Depositary Bank shall have received (with copies for each
Bank, including each Assuming Bank), on or prior to the Increase Date, an
opinion of counsel for the Company in substantially the form of Exhibit D
------- -
hereto and an opinion of counsel for each other Borrower substantially in
the form of Exhibit F hereto, dated such Increase Date, together with a
------- -
copy, certified on the Increase Date by the Secretary or an Assistant
Secretary of the pertinent Borrower, of the resolutions adopted by the
Board of Directors of the Company and each such other Borrower authorizing
such Commitment Increase;
(b) each such Assuming Bank shall have delivered, on or prior to the
Increase Date, to the Depositary Bank an appropriate Assumption Agreement;
and
(c) each Bank which proposes to increase its Commitment in connection
with such Commitment Increase shall have delivered, on or prior to the
Increase Date, confirmation in writing satisfactory to the Depositary Bank
as to its increased Commitment.
In the event that the Depositary Bank shall not have received notice from the
Company as to such agreement on or prior to the Commitment Date or the Company
shall, by notice to the Depositary Bank prior to the Increase Date, withdraw
such proposal or any of the actions provided for above in clauses (a) through
---
(c) of this Section 1.1.8. shall not have occurred by the Increase Date, such
- - --- ------- ------
-5-
proposal by the Company shall be deemed not to have been made. In such event,
the actions theretofore taken under clauses (a) through (c) of this Section
--- --- -------
1.1.8., shall be deemed to be of no effect and all the rights and obligations of
- - ------
the parties shall continue as if no such proposal had been made.
Following any Commitment Increase, the Borrower shall be deemed to
repay and reborrow each Revolving Loan having an Interest Period commencing
prior to such Increase Date on the date of the continuation or conversion of any
Revolving Loan that is a Fixed Rate Loan or the next Interest Date for any
Revolving Loan that is a Prime Rate Loan.
SECTION 1.2. Borrowing Procedures. Borrower shall provide The Chase
--------------------
Manhattan Bank, N.A. (herein called "Depositary Bank"), with notice (of which
Depositary Bank shall give prompt notice to each other Bank), by 10:00 a.m. New
York City time on the day of a proposed borrowing of Prime Rate Loans, at least
two Business Days prior to each proposed borrowing of CD Loans or at least three
Eurodollar Days prior to each proposed borrowing of Eurodollar Loans, as the
case may be, of the date and amount of such borrowing (except that if the Term
Loan borrowing shall comprise both Domestic and Eurodollar Loans, there shall be
a single notice at least three Eurodollar Days prior to such proposed
borrowing), the interest rate applicable thereto and, in the case of a
Eurodollar Loan or CD Loan, the duration of the initial Interest Period. Each
Bank shall provide Depositary Bank at its address set forth below its signature
hereto, by not later than 12:30 p.m., New York City time, on the date of a
proposed borrowing, with immediately available funds covering such Bank's
Percentage of the borrowing (or, in the case of the Term Loan borrowing, of any
excess of the aggregate Term Loan borrowing over the aggregate principal amount
of the Revolving Loans then outstanding plus accrued interest unpaid at the
Revolver Expiration Date), and Depositary Bank shall pay over such immediately
available funds to Borrower upon each Bank's (including, without limitation,
Depositary Bank's) receipt of the documents required under Article IX with
------- --
respect to such borrowing. Each borrowing hereunder shall be in an aggregate
amount that is an integral multiple of $1,000,000 and at least $5,000,000.
SECTION 1.3. Market Rate Loans. (a) Notwith-standing any provisions
-----------------
of this Agreement to the contrary, any Bank may, from time to time, make Market
Rate Loans denominated in Dollars or in any Alternate Currency to any Borrower
bearing interest at such rate (hereinafter called such Bank's "Market Rate") of
interest as may be agreed upon by the Borrower and such Bank.
-6-
Each Bank may in its sole discretion negotiate with any Borrower concerning the
offering of Loans at a Market Rate (hereinafter called "Market Rate Loans");
provided, that nothing contained in this Agreement shall be deemed to require
- - --------
any Bank to offer Market Rate Loans to any Borrower. In the event that any
Borrower and any Bank agree to the making of a Market Rate Loan, such Market
Rate Loan shall be made severally by such Bank directly to such Borrower without
participation in such Market Rate Loan by any other Bank. Such Market Rate Loan
may be on such further terms and conditions, including the right of the Borrower
to prepay such Market Rate Loan, as may be agreed upon by the Borrower and such
Bank.
(b) Notwithstanding anything to the contrary contained in this
Agreement, all payments or prepayments made in respect of Market Rate Loans made
by a Bank pursuant to Section 1.3(a) shall be made directly to such Bank, and
------- ------
such Bank shall not be subject to the provisions of Section 6.3 or 6.4 in
------- --- ---
respect of any such payments so received.
(c) Upon the making of, or any repayment of principal of, any Market
Rate Loan, Borrower shall give the Depositary Bank prompt written, facsimile or
telephonic notice of such Market Rate Loan or repayment, which notice shall
state the Borrower, the principal amount of such Market Rate Loan or the amount
of such repayment, the maturity date of such Market Rate Loan (if applicable)
and, if such Market Rate Loan is an Alternate Currency Loan, the Alternate
Currency, the Dollar equivalent of the principal amount thereof and the
Alternate Currency Payment Office.
(d) Market Rate Loans shall not be subject to the limitations on the
aggregate amount of the Credit as provided in Section 1.1.4 and shall not reduce
------- -----
the amount of any Bank's unused Commitment.
(e) The Company shall designate for each Alternate Currency in which
any Borrower proposes to borrow an Alternate Currency Loan an office of a bank
at which the proceeds of Alternate Currency Loans denominated in such Alternate
Currency will be made available to Borrower and payments in such Alternate
Currency will be made (an "Alternate Currency Payment Office") by written notice
to Depositary Bank. Any Borrower and any Bank making a Market Rate Loan that is
an Alternate Currency Loan may agree upon a different Alternate Currency Payment
Office with respect to such Market Rate Loan. The Company or Borrower shall
provide the Depositary Bank with written notice of any such designation.
-7-
SECTION 1.4. Conditions to Each Loan. Notwithstanding any other
-----------------------
provision of this Agreement, no Revolving Loan or Term Loan shall be required to
be made hereunder if the conditions precedent to the making of such Loan
specified in Article IX have not been satisfied.
ARTICLE II
NOTES EVIDENCING LOANS
SECTION 2.1. Revolving Notes. The Revolving Loans of each Bank shall
---------------
be evidenced by a promissory note (herein called a "Revolving Note")
substantially in the form set forth in Exhibit A, with appropriate insertions,
------- -
payable to the order of such Bank on the Revolver Expiration Date in the
principal amount equal to the amount of such Bank's Commitment or in the
aggregate unpaid principal amount of all of its Revolving Loans, whichever is
less. The date and amount of each Revolving Loan made by such Bank and of each
repayment of principal thereof received by such Bank, and, in the case of each
Eurodollar Loan or CD Loan, the dates on which each Interest Period as to such
Loan shall begin and end, shall be recorded by such Bank on the schedule
attached to the Revolving Note issued to such Bank, and the aggregate unpaid
principal amount shown on such schedule shall be conclusive evidence absent
demonstrable error of the principal amount owing and unpaid on such Revolving
Note. The failure to record any such amount on such schedule shall not,
however, limit or otherwise affect the obligations of Borrower hereunder or
under any Note to repay the principal amount of the Loans together with all
interest accruing thereon or any other amount owing hereunder. Each Revolving
Loan shall be repaid on the Revolver Expiration Date, subject to the right of
Borrower to prepay such Revolving Loan and, prior to the Revolver Expiration
Date, to reborrow hereunder, in accordance with the provisions of this
Agreement.
SECTION 2.2. Term Notes. The Term Loan of each Bank shall be
----------
evidenced by a promissory note (herein called a "Term Note") substantially in
the form set forth in Exhibit B, with appropriate insertions, dated the Revolver
------- -
Expiration Date, payable to the order of such Bank in the original principal
amount of such Term Loan on the date which is one year after the Revolver
Expiration Date.
SECTION 2.3. Market Rate Notes. A Market Rate Loan made by any Bank
-----------------
to Borrower shall be evidenced by a promissory note (herein called a "Market
Rate Note") substantially in the form set forth in Exhibit C, with appropriate
---------
insertions, and
-8-
containing such other terms as the Borrower and such Bank may agree.
ARTICLE III
INTEREST AND FEES
SECTION 3.1. Interest. Subject to the provisions of Section 4.4, (i)
-------- ------- ---
interest prior to maturity (whether by acceleration or otherwise) on each Prime
Rate Loan shall be payable in arrears on the last day of each March, June,
September and December and on the Revolver Expiration Date (herein, subject to
the requirements of Section 3.4, and including the final maturities, by
------- ---
acceleration or otherwise, of all of the Revolving Loans, called a "Prime Rate
Interest Date"), and (ii) interest prior to maturity on each Eurodollar Loan and
CD Loan shall be payable on the last day of the Interest Period for such Loan
(herein called a "Fixed Rate Interest Date"). Interest from and after maturity
(whether by acceleration or otherwise) on all Loans shall be payable on demand.
Interest on each Loan shall accrue from and including the Borrowing Date
thereof, but shall not accrue on any principal amount of such Loan for the day
on which such principal amount is paid. For purposes of the foregoing
computations, a conversion of Eurodollar Loans to Domestic Loans or of Domestic
Loans to Eurodollar Loans, or a conversion of CD Loans to Prime Rate Loans or of
Prime Rate Loans to CD Loans, or a continuation of Eurodollar Loans or CD Loans,
pursuant to Article V shall be deemed to comprise a payment of principal
------- -
together with the making of a concurrent Loan.
SECTION 3.1.1. Interest on Domestic Loans. Interest on the unpaid
--------------------------
portion of the principal amount of Domestic Loans shall accrue until paid with
respect to each Bank at the following rates per annum:
SECTION 3.1.1.1. Revolving Loans and Term Loans. (i) Prior to
------------------------------
maturity, at a rate equal to the Prime Rate, from time to time in effect, or the
CD Rate, as the Borrower has specified in its notice of borrowing pursuant to
Section 1.2 hereof; and (ii) after maturity, whether by acceleration or
- - ------- ---
otherwise, until paid, at a rate equal to the sum of the Prime Rate, in effect
from time to time, plus 1%.
SECTION 3.1.1.2. Changes in Prime Rate. The applicable interest rate
---------------------
on Prime Rate Loans shall change simultaneously with the effectiveness of each
change in the Prime Rate.
-9-
SECTION 3.1.2. Interest on Eurodollar Loans. Interest on the unpaid
----------------------------
principal amount of each Eurodollar Loan shall accrue at a rate per annum
(herein called the "Eurodollar Interest Rate") calculated for each Eurodollar
Period as follows:
SECTION 3.1.2.1. Revolving Loans and Term Loans. The Eurodollar
------------------------------
Interest Rate for each Eurodollar Period shall be a rate per annum which is
equal to the sum of the Eurodollar Margin in effect on the first day of the
applicable Eurodollar Period plus the rate obtained by dividing (i) the
arithmetic average (rounded to the nearest whole multiple of 1/16 of 1%) of the
rates per annum calculated by Depositary Bank on the basis of notification from
the Reference Banks at which Dollar deposits are offered to each Reference Bank
by prime banks in the London Interbank Eurodollar market in immediately
available funds at 11:00 a.m., London time, two Eurodollar Days before the
beginning of such Eurodollar Period for a period comparable to such Eurodollar
Period and in a principal amount comparable to the Eurodollar Loan of such
Reference Bank for such Eurodollar Period divided (and rounded to the nearest
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including without limitation
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D of the Board of Governors of the Federal
Reserve System (herein called "Regulation D") or any successor category of
liabilities under Regulation D.
SECTION 3.1.2.2. After Maturity. In the event of default by any
--------------
Borrower in the payment when due (whether by acceleration or otherwise) of part
or all of the principal amount of any Eurodollar Loan, such Borrower shall pay
interest on such unpaid amount from the date such amount shall have become due
to the date of actual payment, accruing on a daily basis, at a rate per annum
(i) in the event such default shall occur prior to the scheduled expiration of
the Eurodollar Period for such Loan, then during the remaining portion of such
Eurodollar Period, equal to 1% plus the Eurodollar Interest Rate for such
Eurodollar Period of such Loan during which such default occurred and (ii) after
the expiration of the Eurodollar Period for such Loan (or expiring concurrently
with such default) equal to the Prime Rate, from time to time in effect, plus
1%.
SECTION 3.1.3. Notice of CD Rate or Eurodollar Interest Rate. The CD
------------------------------- -------------
Rate for each CD Interest Period and the Eurodollar Interest Rate for each
Eurodollar Period shall be determined by Depositary Bank as provided herein and
notice
-10-
thereof (including a calculation in reasonable detail) shall be given by
Depositary Bank promptly to each Bank and to the Company.
SECTION 3.1.4. Rate Determination Conclusive. Each calculation of
-----------------------------
the Eurodollar Interest Rate or the CD Rate, furnished to the Banks and to the
Company by Depositary Bank pursuant to Section 3.1.3 shall, unless objected to
------- -----
by any Bank or the Company within 30 days thereafter, be conclusive and binding
upon the parties hereto, in the absence of demonstrable error. If any one or
more of the Reference Banks is unable or for any reason fails to notify
Depositary Bank of the applicable interest rate on the day specified in Section
-------
3.1.2.1, in the case of a Eurodollar Loan, or in the definition of "CD Rate", in
- - -------
the case of a CD Loan, by 9:00 p.m., London time in the case of a Eurodollar
Loan and 4:00 p.m., New York City time in the case of a CD Loan, the applicable
Eurodollar Interest Rate or CD Rate, as the case may be, shall be determined on
the basis of the rate or rates of which Depositary Bank is given notice by the
remaining Reference Bank or Banks by such time. If none of the Reference Banks
is able to notify Depositary Bank of such a rate, the provisions of clauses (a),
------- ---
(b) and (c) of Section 5.5 shall apply.
- - --- --- ------- ---
SECTION 3.1.5. Increased Cost of Fixed Rate Loans. Borrower agrees
----------------------------------
to pay directly to each Bank additional amounts as will compensate such Bank for
(i.e., make such Bank whole against, but only to the extent and for the duration
---
of) (i) any increase in the cost to such Bank of making or maintaining any
Eurodollar Loan or CD Loan hereunder, or of its obligation to make or maintain
any Eurodollar Loans or CD Loans hereunder, or (ii) any reduction in the amount
of any sum receivable by such Bank hereunder in respect of any Eurodollar Loan
or CD Loan, from time to time, by reason of:
(a) any reserve, special deposit, or similar requirements against
assets of, deposits with or for the account of or credit extended by, such
Bank which are imposed on, or deemed applicable by, such Bank, under or
pursuant to any law, treaty, rule, regulation (including, without
limitation, Regulation D) or requirement in effect on or after the date
hereof, any change therein, or any interpretation thereof by any
governmental authority charged with administration thereof or by any
central bank or other fiscal, monetary or other authority having
jurisdiction over the CD Loans, the Eurodollar Loans, such Bank, or a
Eurodollar Office which is a foreign branch or affiliate of such Bank, or
any requirement imposed by any central bank or
-11-
such other authority, whether or not having the force of law; or
(b) any change in (including the introduction of any new) applicable
law, treaty, rule, regulation or requirement or in the interpretation
thereof by any official authority, or the imposition of any requirement of
any central bank, whether or not having the force of law, which shall
subject such Bank or Borrower to any tax (other than taxes on net income or
net worth or franchise taxes), levy, impost, charge, fee, duty, deduction
or withholding of any kind whatsoever or change the taxation of a
Eurodollar Office which is a foreign branch or affiliate of such Bank with
respect to any Eurodollar Loan of such Bank hereunder and the interest
thereon (other than any change which affects, and to the extent that it
affects, the taxation of net income);
provided, however, that no Bank shall seek compensation for any such increase in
- - -------- -------
cost, or for any such reduction in the amount of any sum receivable, for any
period when any Eurodollar Loan or CD Loan shall be outstanding if such Bank
shall, on or prior to the date of making such Eurodollar Loan or CD Loan, have
notified the Borrower that it will not seek compensation therefor and will not
give notice thereof in accordance with the following paragraph of this Section;
provided, further, that the Borrower shall not be required to pay any additional
- - -------- -------
amount on account of any taxes imposed by the United States pursuant to this
Section 3.1.5. to any Bank which (i) is not entitled, on the date hereof (or, in
- - ------- ------
the case of an assignee of a Bank, on the date on which the assignment to it
became effective), to submit Form 1001 or Form 4224 (or any successor forms) so
as to meet its obligations to submit such a form pursuant to Section 13.18 or
------- -----
Section 13.5, or (ii) shall have failed to submit any form or other
- - ------- ----
certification which it was required to file pursuant to Section 13.18 or Section
------- ----- -------
13.5 and entitled to file under applicable law, or (iii) shall have filed any
- - ----
such form which is incorrect or incomplete in any material respect.
In any such event, each Bank so affected shall promptly notify
Borrower and Depositary Bank (which shall give prompt notice thereof to each
other Bank) thereof by telephone, confirmed in writing, stating the reasons
therefor and the additional amounts required fully to compensate such Bank for
such increased cost or reduced amount. Such additional amounts shall be payable
on the Fixed Rate Interest Date of each Eurodollar Loan and CD Loan so affected,
and upon demand if such notice is not given to Borrower prior to such Fixed Rate
Interest
-12-
Date or if there are no Eurodollar Loans or CD Loans outstanding when such
notice is given, provided that such compensation will cover a period beginning
--------
not more than 90 days prior to such notice. A certificate as to any such
increased cost or reduced amount (including calculations, in reasonable detail,
showing how such Bank computed such cost or reduction) shall be submitted by
each affected Bank to Borrower and Depositary Bank (which shall promptly furnish
copies thereof to each other Bank) and shall, in the absence of demonstrable
error, be conclusive and binding.
SECTION 3.1.6. Interest on Market Rate Loans. The applicable
-----------------------------
interest rate, and the time of payment therefor, for each Market Rate Loan shall
be as agreed upon by Borrower and the Bank making such Market Rate Loan.
SECTION 3.1.7. Additional Costs. Without limiting the effect of the
----------------
foregoing provisions of Section 3.1.5 (but without duplication), the Borrower
------- -----
shall pay directly to each Bank from time to time on demand such amounts as such
Bank may determine to be necessary to compensate such Bank for any costs which
such Bank determines are attributable to any Revolving Loan outstanding
hereunder or to its obligation to make any Revolving Loans hereunder and to
other loans or commitments of this type in respect of any amount of capital
maintained by such Bank or any of its affiliates pursuant to any law or
regulation of any jurisdiction, or any change therein, or any interpretation,
guidelines, directive or request (whether or not having the force of law) of any
court or governmental or monetary authority, whether in effect on the date of
this Agreement or thereafter. Without limiting the foregoing, such compensation
shall include an amount equal to any reduction in return on assets or return on
equity to a level below that which such Bank could have achieved but for such
law, regulation, change, interpretation, directive or request; provided,
--------
however, that no Bank shall seek compensation for any such increase in cost, or
- - -------
for any such reduction in the amount of any sum receivable, in respect of any
Revolving Loan outstanding hereunder for any period when any Revolving Loan
shall be outstanding if such Bank shall, on or prior to the date of making such
Revolving Loan, have notified the Borrower that it will not seek compensation
therefor and will not give notice thereof in accordance with the following
paragraph of this Section.
In any such event, each Bank so affected shall promptly notify the
Company and Depositary Bank (which shall give prompt notice thereof to each
other Bank) thereof by telephone, confirmed in writing, stating the reasons
therefor and the additional amounts required fully to compensate such Bank for
-13-
such increased cost or reduced amount. Such additional amounts shall be payable
on the next Interest Date, or upon demand if there are no Loans outstanding when
such notice is given, provided that such compensation will cover a period
--------
beginning not more than 90 days prior to such notice. A certificate as to any
such increased cost or reduced amount (including calculations, in reasonable
detail, showing how such Bank computed such cost or reduction) shall be
submitted by each affected Bank to Borrower and Depositary Bank (which shall
promptly furnish copies thereof to each other Bank) and shall, in the absence of
demonstrable error, be conclusive and binding.
SECTION 3.1.8. Applicable Margin. The "Eurodollar Margin" or "CD
-----------------
Margin" means, as of any date, with respect to any Eurodollar Loan or CD Loan,
respectively, the applicable percentage set opposite the Public Debt Rating in
effect on such date:
Public Debt Rating Eurodollar Margin CD Margin
- - ------------------ ----------------- ---------
Level 1:
AA-/Aa3 0.225% 0.350%
or higher
Level 2:
A-/A3 or higher, but 0.260% 0.385%
less than Level 1
Level 3:
BBB-/Baa3 or higher, 0.425% 0.550%
but less than Level 2
Level 4:
Less than BBB-/Baa3 0.625% 0.750%
Any adjustment to the Eurodollar Margin or CD Margin pursuant to this
Section 3.1.8 shall become effective for Interest Periods commencing after a
- - ------- -----
public announcement of a change in debt rating which requires an adjustment to
be made hereunder.
SECTION 3.2. Facility Fee. Borrower agrees to pay the Banks a
------------
facility fee for the period from and including June 1, 1995 to the later of the
Revolver Expiration Date or the repayment of all Revolving Loans and Term Loans
in full, equal to the percentage per annum set forth for the applicable Public
Debt Rating in the table below on the daily average amount of the Credit;
provided that no facility fee shall be payable to any
- - --------
-14-
Bank on that portion of the Credit then borrowed as Prime Rate Loans as a result
of a conversion of any Fixed Rate Loan pursuant to Section 4.2, 5.5, 5.6 or 5.7.
------- --- --- --- ---
Public Debt Rating Facility Fee Percentage
------------------ -----------------------
Level 1:
AA-/Aa3 or higher 0.050%
Level 2:
A-/A3 or higher, 0.085%
but less than Level 1
Level 3:
BBB-/Baa3 or higher, 0.125%
but less than Level 2
Level 4:
Less than BBB-/Baa3 0.150%
Such facility fee shall be payable on the last day of March, June,
September and December for the period then ending for which such facility fee
shall not have been theretofore paid (the first such payment to be made on June
30, 1995) and on the earlier of the Revolver Expiration Date or the date of
termination of the Credit for any period then ending for which such facility fee
shall not have been theretofore paid.
SECTION 3.3. Basis of Computation. Interest on Prime Rate Loans and
--------------------
the facility fee shall be computed for the actual number of days elapsed on the
basis of a year consisting of 365 or, if applicable, 366 days. Interest on
Fixed Rate Loans shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Interest on each Market Rate Loan shall
be computed on the same basis as Fixed Rate Loans unless otherwise agreed upon
by Borrower and the Bank making such Market Rate Loan.
SECTION 3.4. Extension of Due Date. If any payment of principal of,
---------------------
or interest on, any Domestic Loan or any payment of a facility fee falls due on
a day which is not a Business Day, then such due date shall be extended to the
next following Business Day. If any payment of principal of, or interest on,
any Eurodollar Loan falls due on a day which is not a Eurodollar Day, then such
due date shall be extended to the next Eurodollar Day, unless such Eurodollar
Day falls in another calendar month, in which case the date for payment thereof
shall be the preceding Eurodollar Day. If the date for any payment of principal
is
-15-
extended pursuant to this Section 3.4 additional interest shall accrue and be
------- ---
payable for the period of such extension.
SECTION 3.5. Interest Rate Determination. Each Reference Bank agrees
---------------------------
to furnish to the Depositary Bank timely information for the purpose of
determining each Prime Rate, CD Rate or Eurodollar Rate, as applicable. If any
one or more of the Reference Banks shall not furnish such timely information to
the Depositary Bank for determination of any such interest rate, the Depositary
Bank shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Depositary Bank shall give
prompt notice to the Borrower and, if different, the Company and the Banks of
the applicable interest rate determined by the Depositary Bank and of the
applicable rate, if any, furnished by each Reference Bank for determining the
applicable interest rate under Section 3.1.
-----------
SECTION 3.6. Currency Equivalents. For purposes of the provisions of
--------------------
Articles I, II, III, IV and V, (i) the equivalent in Dollars of any Alternate
- - -------- - -- --- -- -
Currency shall be determined by using the quoted spot rate at which the
principal office in New York City of the pertinent Bank or the principal office
in New York City of any affiliate of such Bank offers to exchange Dollars for
such Alternate Currency in New York City at 11:00 a.m. (New York City time), two
Business Days prior to the date on which such equivalent is to be determined,
(ii) the equivalent in any Alternate Currency of any other Alternate Currency
shall be determined by using the quoted spot rate at which such Bank's principal
office in New York City or the principal office in New York City of any
affiliate of such Bank offers to exchange such Alternate Currency for the
equivalent in Dollars of such other Alternate Currency in New York City at 11:00
a.m. (New York City time), two Business Days prior to the date on which such
equivalent is to be determined, and (iii) the equivalent in any Alternate
Currency of Dollars shall be determined by using the quoted spot rate at which
such Bank's principal office in New York City or the principal office in New
York City of any affiliate of such Bank offers to exchange such Alternate
Currency for Dollars in New York City at 11:00 a.m. (New York City time), two
Business Days prior to the date on which such equivalent is to be determined.
-16-
ARTICLE IV
PREPAYMENTS
SECTION 4.1. Prepayment Upon Reduction or Termination of the Credit.
------------------------------------------------------
On the effective date of any reduction of the Commitments pursuant to Section
-------
1.1.6 Borrower shall prepay the amount, if any, by which the aggregate unpaid
- - -----
principal amount of all Revolving Notes exceeds the then reduced amount of the
Credit; provided, that on the later of the termination of the Commitments in
--------
their entirety or the maturity of the Term Loan, if made, each Borrower shall
pay in full all of its obligations hereunder and under the Notes accrued or
payable through such date (all such obligations being herein collectively called
the "Liabilities").
SECTION 4.2. Change in Law Rendering Fixed Rate Loans Unlawful. In
---------------------------------------- --------
the event that any change in (including the introduction of any new) applicable
laws or regulations, or in the interpretation thereof by any governmental or
other regulatory authority charged with the administration thereof, shall make
it unlawful for any Bank to make or continue any Eurodollar Loan or CD Loan to
be made or continued by it hereunder, the obligation of such Bank pursuant to
which such Eurodollar Loan or CD Loan would otherwise be made shall, upon the
happening of such event, forthwith terminate and such Bank shall, by telephonic
notice confirmed in writing to Borrower (with a copy to Depositary Bank, which
shall give prompt notice thereof to each other Bank), declare that such
obligation has so terminated. If any such change shall make it unlawful for
any Bank to maintain any Eurodollar Loan or CD Loan made by it hereunder, such
Bank shall, upon the happening of such event, notify Borrower thereof by
telephone, confirmed in writing (with a copy to Depositary Bank, which shall
give prompt notice thereof to each other Bank), stating the reasons therefor and
Borrower shall, at such time as required by law and no later than at the end of
the Interest Period of such Loan, convert such Eurodollar Loan or CD Loan into a
Prime Rate Loan by such Bank pursuant to the provisions (other than as to prior
notice, to the extent that compliance therewith would violate applicable law) of
Article V. If prior to the Revolver Expiration Date circumstances subsequently
- - ------- -
change so that any such Bank shall no longer be so affected, such Bank shall
reinstate its Commitment to make Eurodollar Loans or CD Loans upon written
notice to Borrower thereof (with a copy to Depositary Bank, which shall give
prompt notice thereof to each other Bank).
-17-
SECTION 4.3. Optional Prepayment. Borrower may from time to time,
-------------------
upon at least three Eurodollar Days' prior written notice to each Bank, prepay
the Loans in whole or in part, subject to the provisions of Sections 6.1 and
-------- ---
6.3, without premium or penalty other than as provided in Section 4.5; provided
- - --- ------- --- --------
however, that such optional prepayment shall, if it occurs before the Revolver
- - -------
Expiration Date, not reduce the Credit and any partial prepayment shall be in an
aggregate principal amount of at least $5,000,000 and an integral multiple of
$1,000,000.
SECTION 4.4. Interest on Principal Prepaid. Any prepayment of
-----------------------------
principal of the Loans shall include accrued interest to the date of prepayment
on the principal amount being prepaid. Upon any conversion of a Fixed Rate Loan
pursuant to Section 4.2, 5.6 or 5.7, Borrower shall on the date of such
------- --- --- ---
conversion pay accrued interest on such Fixed Rate Loan to such date. Payments
of interest on account of a conversion pursuant to Section 4.2, 5.6 or 5.7 shall
------- --- --- ---
be made directly to each Bank so affected.
SECTION 4.5. Prepayment Compensation. If (i) any optional or
-----------------------
mandatory payment or prepayment of a Eurodollar Loan or CD Loan (including,
without limitation, on account of a reduction or termination of the Credit) or
any conversion of a Eurodollar Loan or CD Loan pursuant to Article V or Section
------- - -------
4.2 is made on a day which is not the originally scheduled last day (designated
- - ---
in Borrower's notice pursuant to Section 1.2 or 5.4) of an Interest Period of
------- --- ---
such Loan, or (ii) the Borrower fails to borrow, continue, or convert another
Loan into, a Eurodollar Loan or CD Loan on the date for such borrowing,
continuation, or conversion specified in the Borrower's notice pursuant to
Section 1.2 or 5.4, Borrower shall pay directly to the Bank having made such
- - ------- --- ---
Loan or which would have made such Loan such amount or amounts as will fully
compensate such Bank for any net losses and expenses incurred by it (or any
branch or affiliate thereof) in connection with its repayment or reinvestment
in respect of funds borrowed by it or deposited with it for the purpose of
making or maintaining such Loan, it being understood that the amount of any such
-- ----- ----------
loss shall be determined with reference only to reduced earnings derived by such
Bank on, and shall not include any loss of, any principal amount of such funds
as the result of such Bank's reinvestment thereof. Any such payment by Borrower
to any Bank shall be payable on demand made by such Bank (accompanied by a
calculation in reasonable detail of such payment which, in the absence of
demonstrable error, shall be conclusive and binding as to the amount
thereof).
-18-
ARTICLE V
SPECIAL PROVISIONS WITH RESPECT TO
CONTINUATION OF FIXED RATE LOANS AND
CONVERSION OF LOANS BETWEEN
EURODOLLARS AND DOMESTIC DOLLARS
SECTION 5.1. Continuation of Eurodollar Loans. Borrower may elect to
--------------------------------
continue a group of Eurodollar Loans from any Eurodollar Period into a
subsequent Eurodollar Period, provided that such continuation shall take place
--------
on the last day of the prior Eurodollar Period (herein, in such case, called a
"Continuation Date"). Such election shall be subject to the notice requirements
of Section 5.4. If no such election is made in compliance with the requirements
------- ---
hereof and Borrower does not pay in full the outstanding principal amount of any
Eurodollar Loan on the last day of the Eurodollar Period thereof, such
Eurodollar Loan shall automatically, without any notice from or to Borrower, be
converted into a Prime Rate Loan in accordance with the other provisions of this
Article V (other than as to prior notice) at the end of such Eurodollar Period.
- - ------- -
SECTION 5.1.1. Continuation of CD Loans. Borrower may elect to
------------------------
continue a group of CD Loans from any CD Interest Period into a subsequent CD
Interest Period, provided that such continuation shall take place on the last
--------
day of the prior CD Interest Period (herein, in such case, called a
"Continuation Date"). Such election shall be subject to the notice requirements
of Section 5.4. If no such election is made in compliance with the requirements
------- ---
hereof and Borrower does not pay in full the outstanding principal amount of any
CD Loan on the last day of the CD Interest Period thereof, such CD Loan shall
automatically, without any notice from or to Borrower, be converted into a Prime
Rate Loan in accordance with the other provisions of this Article V (other than
------- -
as to prior notice) at the end of such CD Interest Period.
SECTION 5.2. Conversion. Borrower may elect (i) on any Eurodollar
----------
Day to convert any outstanding Domestic Loans into Eurodollar Loans or any
outstanding Eurodollar Loans into Domestic Loans and (ii) on any Business Day to
convert any outstanding CD Loans into Prime Rate Loans or any outstanding Prime
Rate Loans into CD Loans (herein, in such case, called a "Conversion Date"), it
--
being understood that any such conversion of a Eurodollar Loan or CD Loan into
- - ----- ----------
another type of Loan on a day other than the last day of the Eurodollar Period
or CD Interest Period, as the case may be, of such Loan shall be subject to the
applicable provisions of Section 4.5. Such
------- ---
-19-
election shall be subject to the notice requirements of Section 5.4.
------- ---
SECTION 5.3. Restrictions on Borrower's Continuation and Conversion
--------------------------------------- --------------
Rights. Notwithstanding any other provisions of this Article V, Banks shall not
- - ------ ------- -
be obligated to effect (i) any continuation or conversion under this Article V,
------- -
so long as any Event of Default or Credit Suspension Event has occurred and
remains continuing or (ii) any continuation of any type of Loan outstanding or
any conversion of any outstanding type of Loan into another type of Loan so long
as any of the circumstances described in Sections 4.2, 5.5, 5.6 and 5.7
-------- --- --- --- ---
affecting such continuation or conversion have occurred and remain continuing.
SECTION 5.4. Notice of Continuations and Conversions. Except as
---------------------------------------
otherwise provided in this Agreement, Borrower shall, at least three Eurodollar
Days prior to any Continuation Date or Conversion Date involving a Eurodollar
Loan, or at least two Business Days prior to any Continuation Date involving a
CD Loan or conversion of a CD Loan into a Prime Rate Loan or Prime Rate Loan
into a CD Loan, give notice to Depositary Bank (which shall give prompt notice
thereof to each other Bank) of such proposed continuation or conversion, and in
the case of any Eurodollar Loans or CD Loans to be continued or to be made by
conversion on such date, as the case may be, the duration of the subsequent
Eurodollar Period or CD Interest Period thereof.
SECTION 5.5. Interest Rate Unascertainable. In the event that, prior
-----------------------------
to any Borrowing Date of any group of Eurodollar Loans or CD Loans, Banks
having, in the aggregate, a Percentage of 66 2/3% or more shall have determined
(which determination shall be conclusive and binding on all parties hereto) that
(i) with respect to Eurodollar Loans and CD Loans, the circumstances described
in the third sentence of Section 3.1.4 have occurred, or that, (ii) by reason of
----- -------- -------------
other circumstances affecting the London interbank eurodollar market or
certificate of deposit market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Interest Rate or CD Rate applicable to such group of
Eurodollar Loans or CD Loans, (a) such Banks shall give notice of such
determination promptly (and in any event within three Eurodollar Days after
making such determination with respect to Eurodollar Loans and within two
Business Days after making such determination with respect to CD Loans) to the
other parties hereto and, (b) with respect to any new Eurodollar Loans or CD
Loans, as the case may be, Borrower's request for Eurodollar Loans or CD Loans,
as the case may be, shall be deemed a request for Prime Rate Loans and (c) with
respect to outstanding Eurodollar Loans or CD Loans, as the case
-20-
may be, to be continued on such Borrowing Date, such Loans shall be converted
into Prime Rate Loans in accordance with the provisions of this Article V on
------- -
such Borrowing Date, notwithstanding any failure of Borrower to comply with the
notice provisions of Section 1.2 or 5.4, as the case may be.
------- --- ---
SECTION 5.6. Bank Unable to Make Eurodollar Loan. In the event that,
-----------------------------------
prior to any Borrowing Date of any Eurodollar Loan as Borrower shall request in
its relevant notice of borrowing pursuant to Section 1.2 or 5.4, any Bank
------- --- ---
requested to make or continue such Eurodollar Loan shall (i) have determined
(which determination if made in good faith shall be conclusive and binding on
all parties hereto) that Dollar deposits in the relevant amount and for the
relevant Eurodollar Period for such Eurodollar Loan are not available to such
Bank in the London interbank eurodollar market by reason of law or otherwise, or
(ii) learn of any change in (including the introduction of any new) applicable
laws or regulations, or in the interpretation thereof by any governmental or
other regulatory authority charged with the administration thereof, which shall
make it unlawful for such Bank to make or continue such Eurodollar Loan for the
proposed duration thereof, such Bank shall promptly give notice of such
determination to Borrower (with a copy to Depositary Bank, which shall give
prompt notice thereof to each other Bank) and (a) with respect to any new
Eurodollar Loan, Borrower's request for such Loan shall be deemed a request for
a Prime Rate Loan, and (b) with respect to any outstanding Eurodollar Loan to be
continued on such Borrowing Date, such Loan shall be converted into a Prime Rate
Loan in accordance with the provisions of this Article V on such Borrowing
------- -
Date, notwithstanding any failure of Borrower to comply with the notice
provisions of Section 1.2 or 5.4, as the case may be.
------- --- ---
SECTION 5.7. Conversions Affecting Some Banks. Within ten days of
--------------------------------
notification by any Bank that any of the circumstances described in Section
-------
3.1.5 or 3.1.7 shall have occurred and remain continuing with respect to any
- - ----- -----
outstanding Eurodollar Loan or CD Loan made by such Bank, Borrower may elect to
convert such Eurodollar Loan or CD Loan to a Prime Rate Loan. Borrower shall,
at least three Eurodollar Days prior to the proposed Conversion Date in respect
of such Eurodollar Loan or two Business Days prior to the proposed Conversion
Date in respect of such CD Loan, give notice of such conversion to Depositary
Bank (which shall give prompt notice to each other Bank). The exemption from
the ratability provisions of Section 1.1.3 shall apply to all Banks or Loans
------- -----
affected by conversions made pursuant to this Section or Section 4.2 or 5.6 and
------- ------- --- ---
so long as any of the circumstances which permitted or required such
-21-
conversion shall remain continuing. Any Bank so affected shall use all
commercially reasonable efforts to cease being so affected, it being understood
-- ----- ----------
that such obligation shall in no way reduce the rights of Banks hereunder nor
require any Bank to take any action which would have a material adverse effect
on such Bank, to make any Eurodollar Loan at any office located in the United
States or to fund any Eurodollar Loan in domestic Dollars.
ARTICLE VI
MAKING AND PRORATION OF PAYMENTS; OFFSET
SECTION 6.1. Making of Payments. All payments made by Borrower
------------------
hereunder shall be in immediately available funds and, except for payments
pursuant to Sections 1.3(b), 3.1.5, 3.1.7 and 4.5 and as otherwise indicated in
-------- ------ ----- ----- ---
Sections 3.2 and 4.4, shall be made to Depositary Bank at its address set forth
- - -------- --- ---
below its signature hereto not later than 12:30 p.m., New York City time, on the
date due; funds received after that hour shall be deemed to have been received
by Depositary Bank on the next Eurodollar Day or Business Day, as the case may
be. Depositary Bank shall remit in immediately available funds to each Bank or
other holder its share of all such payments received by Depositary Bank for the
account of such Bank or holder, as determined pursuant to Section 6.3, promptly
------- ---
(and, in the event of any payment received prior to 12:30 p.m., New York City
time, on any Business Day, on such Business Day).
SECTION 6.2. Payment on Revolver Expiration Date. Any Borrower may
-----------------------------------
effect payment of all or part of the Revolving Loans, together with accrued
interest thereon, on the Revolver Expiration Date by directing Depositary Bank,
in Borrower's notice of its proposed borrowing of the Term Loans pursuant to
Section 1.2, to apply the proceeds of the Term Loans to the extent necessary to
- - ------- ---
the concurrent payment of principal of and interest on the Revolving Loans;
provided, that the aggregate principal amount of the Term Loan shall not exceed
- - --------
the amount of the Credit.
SECTION 6.3. Allocation of Payments. All payments of principal of
----------------------
the Revolving Notes and Term Notes by Borrower shall be for the account of the
holders of the Revolving Notes and Term Notes pro rata according to the
respective unpaid principal amounts of the Revolving Notes and Term Notes held
by them, and shall be applied by each such holder (except as Borrower may, in a
manner not inconsistent with other terms and provisions hereof, otherwise elect
in a notice, furnished on or prior to the date of
-22-
such payment, to Depositary Bank, which shall give prompt notice thereof to each
other Bank) first to its then outstanding Domestic Loans other than Loans made
by conversions pursuant to Section 4.2, 5.6 or 5.7 (herein called an "Equivalent
------- --- --- ---
Domestic Loan"), second to any then outstanding Equivalent Domestic Loans, and
finally to its then outstanding Eurodollar Loans. (For purposes of this
Section, any Equivalent Domestic Loan shall be deemed an ordinary Domestic Loan
to the extent that the Eurodollar Loan from which such Equivalent Domestic Loan
was converted would otherwise have been converted to any ordinary Domestic
Loan.)
All payments of interest on Domestic Loans hereunder, except
Equivalent Domestic Loans made by an affected Bank pursuant to Section 4.2, 5.6
------- --- ---
or 5.7, shall be for the account of the holders of the Revolving Notes and Term
---
Notes pro rata according to the respective unpaid principal amounts of Domestic
Loans evidenced by the Revolving Notes and Term Notes held by them; all payments
of interest on Equivalent Domestic Loans made by an affected Bank pursuant to
Section 4.2, 5.6 or 5.7, shall be for the account of the holders of the
- - ------- --- --- ----
Revolving Notes and Term Notes pro rata according to the respective unpaid
principal amounts of Equivalent Domestic Loans evidenced by the Revolving Notes
and Term Notes held by them; and all payments of interest on Eurodollar Loans
hereunder, except those pursuant to Section 4.4 on account of a conversion
------- ---
pursuant to Section 4.2, 5.6 or 5.7, shall be for the account of the holders of
------- --- --- ---
the Revolving Notes and Term Notes pro rata according to the respective unpaid
principal amounts of Eurodollar Loans evidenced by the Revolving Notes and Term
Notes held by them.
All payments of facility fees shall be for the account of all Banks
pro rata according to the daily average amount of each Bank's Commitment,
provided that any reduction of facility fees in respect of Equivalent Domestic
Loans that are Prime Rate Loans shall be borne pro rata by each affected Bank
under Section 4.2, 5.5, 5.6 or 5.7.
------- --- --- --- ---
Notwithstanding any other provision of this Section 6.3 payments of
------- ---
principal, interest, facility fees and other obligations hereunder to any Bank
upon termination of its Commitment pursuant to Section 1.1 or pursuant to
------- ---
Section 3.1.7 shall be solely for the account of such Bank.
- - ------- -----
SECTION 6.4. Proration of Other Recoveries. If any Bank or other
-----------------------------
holder of a Revolving Note or Term Note shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or
otherwise), other than a
-23-
prepayment compensation pursuant to Section 4.5, on account of principal of or
------- ---
interest on any Revolving Note or Term Note, or facility fees, in excess of its
pro rata share, as determined pursuant to Section 6.3, of payments and other
------- ---
recoveries obtained by all Banks or other holders on account of principal of and
interest on Revolving Notes or Term Notes then held by them, or facility fees,
such Bank or other holder shall purchase from the other Banks or holders such
participation in the Revolving Notes or Term Notes held by them, or shall make
such other payments, as shall be necessary to cause such purchasing Bank or
other holder to share the excess payment or other recovery ratably with each of
them; provided, however, that if all or any portion of the excess payment or
-------- -------
other recovery is thereafter recovered from such purchasing holder, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
SECTION 6.5. Offset. In addition to and not in limitation of all
------
rights of offset that any Bank or other holder of a Note may have under
applicable law, each Bank or other holder of a Note shall, upon the occurrence
of any Event of Default described in Section 11.1.3 or any Credit Suspension
------- ------
Event which would constitute such an Event of Default described in Section
-------
11.1.3, have the right, subject to Section 6.4, to appropriate and apply to the
- - ------ ------- ---
payment of such Note any and all balances, credits, deposits, accounts or moneys
of Borrower then or thereafter with such Bank or other holder. If, in the
aggregate, the recovery by the Banks by offset, under applicable law, or
otherwise shall exceed the obligations of Borrower under the Notes and
hereunder, any Bank receiving such an excess agrees to promptly restore the same
to Borrower.
ARTICLE VII
WARRANTIES
To induce Banks to grant the Credit and to make Loans hereunder, the
Company warrants to Banks that:
SECTION 7.1. Organization, etc. The Company is a corporation duly
-----------------
existing and in good standing under the laws of the State of New York; and each
Significant Subsidiary is a corporation duly existing and in good standing under
the laws of the jurisdiction of its respective incorporation.
SECTION 7.2. Authorization; No Conflict. The execution and delivery
--------------------------
of this Agreement, the borrowings hereunder, the execution and delivery of the
Notes, and the
-24-
performance by the Company of its obligations under this Agreement and the
Notes, are within the Company's corporate powers, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approval (if any shall be required), and do not and will not violate, contravene
or conflict in any material respect with any provision of law or of the charter
or by-laws of the Company or of any judgment or any material agreement or
indenture binding upon or applicable to the Company the contravention of or
conflict with which would materially adversely effect the consolidated financial
condition or continued operations of the Company and its Subsidiaries as a whole
or materially impair the ability of the Company to perform any of its
obligations hereunder.
SECTION 7.3. Validity and Binding Nature. This Agreement is, and the
---------------------------
Notes when duly executed and delivered will be, legal, valid and binding
obligations of the Company enforceable against it in accordance with their
respective terms, subject only to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of rights of creditors
generally.
SECTION 7.4. Financial Statements. The Company's audited
--------------------
consolidated financial statements as at December 31, 1994, copies of which have
been furnished to each Bank, have been prepared in conformity with GAAP applied
on a basis consistent with that of the preceding fiscal year and fairly present
the financial condition of the Company and its Consolidated Subsidiaries as at
such date and the results of their operations for the period covered by such
statements.
SECTION 7.5. Litigation. No litigation or arbitration proceedings
----------
are pending or, to the knowledge of the Company, threatened against the Company
or any Significant Subsidiary as to which there is a reasonable likelihood of an
adverse determination and which would reasonably be expected to have a material
adverse effect on the consolidated financial condition or continued operations
of the Company and its Subsidiaries as a whole or materially impair the ability
of the Company to perform any of its obligations hereunder.
SECTION 7.6. Liens. None of the assets of the Company is subject to
-----
any mortgage, pledge, title retention lien, or other lien, encumbrance or
security interest which is not permitted by Section 8.6.
------- ---
SECTION 7.7. ERISA. Neither the Company nor any Significant
-----
Subsidiary has incurred any liability to the Pension
-25-
Benefit Guaranty Corporation in connection with any employee benefit plan which
could reasonably be expected to materially adversely affect the consolidated
financial condition or continued operations of the Company and its Subsidiaries
as a whole or materially impair the ability of the Company to perform any of its
obligations hereunder.
SECTION 7.8. Investment Company Act. The Company is not an
----------------------
"investment company," or a company "controlled" by or "controlling" an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 7.9. Public Utility Holding Company Act. Neither the Company
----------------------------------
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 7.10. Regulations G, U, and X. The Company will not use the
-----------------------
proceeds of the Loans in violation of Regulations G, U, and X of the Board of
Governors of the Federal Reserve System.
ARTICLE VIII
COVENANTS
Until the expiration or termination of the Credit and thereafter until
all Liabilities are paid in full, the Company agrees that, unless at any time
Banks having, in the aggregate, a Percentage of 66 2/3% or more shall otherwise
expressly consent in writing, it will:
SECTION 8.1. Reports, Certificates and Other
-------------------------------
Information. Furnish to each Bank:
- - -----------
SECTION 8.1.1. Audit Report. Within 120 days after each fiscal year
------------
of the Company, a copy of an annual audit report of the Company and its
Subsidiaries prepared on a consolidated basis and in conformity with GAAP, duly
certified by, and containing an opinion of, Ernst & Young or other independent
certified public accountants of recognized national standing selected by the
Company, which opinion shall be unqualified (excepting any qualification
relating to any change in the application of GAAP concurred in by such
accountants). The requirements of this Section (other than the requirement that
any opinion shall be unqualified as aforesaid) shall be satisfied by
-26-
the Company's furnishing each Bank with a copy of its annual report on Form 10-K
filed with the Securities and Exchange Commission in accordance with the
instructions therefor.
SECTION 8.1.2. Interim Reports. Within 60 days after each quarter
---------------
(except the last quarter) of each fiscal year of the Company, a copy of an
unaudited financial statement of the Company and its Subsidiaries prepared on a
consolidated basis and in conformity with GAAP applied on a basis consistent
with the most recent audit report referred to in Section 8.1.1, signed by a
------- -----
proper accounting officer of the Company and consisting of at least a balance
sheet as at the close of such quarter, a statement of earnings for such quarter
and for the period from the beginning of such fiscal year to the close of such
quarter and a statement of cash flows for the period from the beginning of such
fiscal year to the close of such quarter. The requirements of this Section
shall be satisfied by the Company's furnishing each Bank with a copy of its
quarterly report on Form 10-Q filed with the Securities and Exchange Commission
in accordance with the instructions therefor.
SECTION 8.1.3. Certificates. Contemporaneously with the furnishing
------------
of a copy of each annual audit report and of each quarterly statement provided
for in Section 8.1.1 or 8.1.2, a certificate dated the date of such annual
------- ----- -----
report or such quarterly statement and signed by the Chairman of the Board, any
Senior Vice President, the Chief Financial Officer or the Treasurer of the
Company, to the effect that no Event of Default or Credit Suspension Event has
occurred and is continuing, or, if there is any such event, describing it and
the steps, if any, being taken to cure it.
SECTION 8.1.4. Reports to SEC and to Shareholders. Copies of each
----------------------------------
report on Form 10-K, 10-Q or 8-K (excluding exhibits thereto) made by any
Borrower with the Securities and Exchange Commission, and of each annual report,
quarterly report, special report or proxy statement from the Company to its
shareholders generally, promptly after the filing or making thereof.
SECTION 8.1.5. Notice of Default or Litigation. Forthwith upon
-------------------------------
learning of the occurrence of an Event of Default, or a Credit Suspension Event,
or of the institution of, or any adverse determination in, any litigation or
arbitration proceeding as to which there is a reasonable likelihood of an
adverse determination and which would reasonably be expected to have a material
adverse effect on the consolidated financial condition or continued operations
of the Company and its
-27-
Subsidiaries as a whole or materially impair the ability of the Company to
perform any of its obligations hereunder, written notice thereof describing the
same and the steps being taken by the Company or the Subsidiary affected with
respect thereto.
SECTION 8.1.6. ERISA. As soon as practicable after the occurrence of
-----
any Reportable Event (as defined in the Employee Retirement Income Security Act
of 1974) which is material to the Company and its Significant Subsidiaries taken
as a whole, in connection with any employee pension benefit plan maintained by
the Company or any Significant Subsidiary, written notice thereof describing the
same.
SECTION 8.1.7. Other Information. From time to time such other
-----------------
information concerning the Company and its Subsidiaries as any Bank may
reasonably request.
SECTION 8.2. Books, Records and Inspections. Maintain, and cause
------------------------------
each Subsidiary to maintain, proper books and records in the form customarily
employed by them; permit, and cause each Subsidiary to permit, upon reasonable
notice and during normal business hours, access by any Bank to the books and
records of the Company and of any Subsidiary; and permit, and cause each
Subsidiary to permit, any Bank to inspect upon reasonable notice and during
normal business hours the properties and operations of the Company and of any
Subsidiary.
SECTION 8.3. Insurance. Maintain, and cause each Significant
---------
Subsidiary to maintain, such insurance as may be required by law and such other
insurance to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated.
SECTION 8.4. Taxes and Liabilities. Pay, and cause each Significant
---------------------
Subsidiary to pay, when due all taxes, assessments and other liabilities except
as contested in good faith and by appropriate proceedings.
SECTION 8.5. Purchase or Redemption of the Company's Securities;
--------------------------------------- -----------
Dividend Restrictions. Not purchase, prepay or redeem, or permit any Subsidiary
- - ---------------------
to purchase, any shares of the capital stock of the Company, not declare or pay
any dividends thereon (other than stock dividends), not make any distribution to
shareholders or set aside any funds for any such purpose, not prepay, and not
permit any Subsidiary to purchase or prepay, any subordinated indebtedness for
borrowed money of the Company if, after giving effect thereto, any Event of
Default or Credit Suspension Event shall have occurred and be continuing;
provided
- - --------
-28-
that the foregoing shall not prevent the payment of any dividend or distribution
within 60 days of the declaration thereof if, on the date of such declaration,
such dividend or distribution would have complied with this Section 8.5.
------- ---
SECTION 8.6. Liens. If the ratio of Consolidated Debt to
-----
Consolidated Capitalization of the Company is more than 0.35:1, not create,
incur, assume or suffer to exist any mortgage, pledge, lien or other encumbrance
of any kind (including the charge upon property purchased under conditional
sales or other title retention agreements) upon, or any security interest in,
any of its property or assets, whether now owned or hereafter acquired, except
(i) liens for taxes, assessments and governmental charges not delinquent or
being contested in good faith or by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP, (ii) existing
liens securing indebtedness, including mortgage debt, as reflected in the
Company's consolidated balance sheet as of December 31, 1994, (iii) liens
arising in favor of the United States Government, any state or local government
or any subdivision or agency thereof in the ordinary course of the Company's
business with any of the foregoing for advances, progress payments or partial
prepayments, (iv) liens in connection with workers' compensation, unemployment
insurance or social security obligations, (v) liens or deposits or pledges to
secure bids, tenders, contracts (other than contracts for repayment of borrowed
money), leases, statutory obligations, surety and appeal bonds, indemnity,
performance and similar bonds and other obligations of like nature arising in
the ordinary course of business, (vi) mechanics', workmen's, materialmen's,
carriers', warehousemen's or other like liens arising in the ordinary course of
business with respect to obligations which are not due or which are being
contested in good faith or by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP, (vii) liens arising out
of judgments or awards with respect to which appeals are being prosecuted, levy
of execution pending such appeal having been stayed, (viii) rights-of-way,
easements, water rights, sewage and drainage rights, zoning or use regulations
or similar defects in title which do not materially impair the use of any
property for the purposes for which held, (ix) the lien or any right or
privilege reserved in leases for rent to secure compliance with the terms of any
lease, but not including any lien arising from a violation of any lease
provision other than one relating to conditional assignment of rents, (x) liens
of attachment not exceeding in the aggregate $15,000,000 outstanding at any one
time, (xi) liens of attachment exceeding in the aggregate $15,000,000 (but not
exceeding in the aggregate $150,000,000)
-29-
outstanding at any one time, provided, however, that any such liens shall be
released, discharged or vacated by bonding or otherwise within 30 days, (xii)
deposits to obtain releases of liens imposed by law and permitted hereunder,
(xiii) any mortgage, encumbrance or other lien upon, or security interest in,
any property or asset (whether real, personal or mixed) hereafter acquired
created contemporaneously with or within 365 days after such acquisition to
secure or provide for the payment or financing of any part of the purchase price
thereof, or the assumption of any mortgage, encumbrance or lien upon, or
security interest in, any such property or asset hereafter acquired existing at
the time of such acquisition, or the acquisition of any such property or asset
subject to any mortgage, encumbrance or other lien or security interest without
the assumption thereof (provided, at any one time that each such mortgage,
--------
encumbrance, lien or security interest shall attach only to the property or
asset so acquired and improvements thereon), (xiv) other liens which do not, in
the aggregate, relate to or secure obligations exceeding 5% of Consolidated
Capitalization, (xv) any encumbrance or lien upon margin stock and (xvi) any
renewal, modification, extension, refinancing or replacement of any mortgage,
encumbrance, lien or security interest permitted under clause (ii), (xiii) or
(xiv), provided that the amount of indebtedness secured thereby is not increased
and that any such mortgage, encumbrance, lien, or security interest is limited
to all or part of the same property and any fixed improvement thereon; provided,
--------
that nothing in this Section 8.6 shall be construed as prohibiting (x)
------- ---
conveyances of property to a political subdivision pursuant to an industrial
revenue or pollution control bond financing whereby equitable title to such
property remains in the Company (provided, however, any mortgage, deed of trust
or other security interest in the facility in connection therewith shall not be
so excluded), or (y) the deposit of property or money with a trustee or other
entity, or the establishment of an escrow, trust or similar account, for the
purpose of defeasing indebtedness of the Company.
SECTION 8.7. Mergers and Consolidations. Not be a party to any
--------------------------
merger or consolidation unless (i) after giving effect to such merger or
consolidation, no Event of Default and no Credit Suspension Event shall have
occurred and be continuing, (ii) the corporation resulting from or surviving
such merger or consolidation (if other than the Company) shall expressly assume
in writing (in a form reasonably acceptable to Banks having, in the aggregate, a
Percentage of 66 2/3% or more) and agree to perform all the Company's
obligations under this Agreement and (iii) immediately after giving effect to
such merger or consolidation the surviving corporation shall have a Consolidated
-30-
Net Worth at least equal to the Consolidated Net Worth of the Company
immediately preceding such merger or consolidation; provided, that nothing in
--------
this Agreement shall prevent the merger of any Subsidiary with and into the
Company or into another Subsidiary or the liquidation of any Subsidiary.
SECTION 8.8. Sale or Other Disposition of Assets. Not, and not
-----------------------------------
permit any Subsidiary to, sell or otherwise dispose of, whether by merger or
otherwise, all or any substantial portion of its assets, except (i) to or with
any other Subsidiary or the Company, (ii) in the ordinary course of business,
(iii) all of the assets of, or the ownership interest in, any Subsidiary which
is not a Significant Subsidiary or (iv) on such other terms and conditions as
shall have been approved by the Company's Board of Directors but, in the case of
any transfer made pursuant to clause (iii) or (iv), only if, after giving effect
------ ----- ----
thereto, no Event of Default or Credit Suspension Event shall have occurred and
be continuing.
SECTION 8.9. Interest Coverage and Consolidated Debt to Consolidated
-------------------------------------------------------
Capitalization Ratio. Not permit, as of the end of any fiscal quarter, both (A)
- - --------------------
the ratio of Consolidated EBDIT to Consolidated Cash Interest Expense for the
twelve month period including such fiscal quarter and the three immediately
preceding fiscal quarters to be less than 2.50 to 1.0 and (B) the ratio of
Consolidated Debt to Consolidated Capitalization at the end of such fiscal
quarter to be more than .60 to 1.0.
ARTICLE IX
CONDITIONS OF LENDING
SECTION 9.1. Initial Revolving Loans. The obligation of each Bank to
-----------------------
make its initial Revolving Loan hereunder is subject to the receipt by such Bank
of all of the following, each duly executed:
SECTION 9.1.1. Revolving Note. The Revolving Note of the Company
--------------
payable to the order of such Bank.
SECTION 9.1.2. Resolutions. Copies of resolutions of the Board of
-----------
Directors of the Company authorizing or ratifying the execution, delivery and
performance, respectively, of this Agreement, the Notes, and other documents
provided for in this Agreement, certified by the Secretary or an Assistant
Secretary of the Company.
SECTION 9.1.3. Consents, etc. Copies of all documents evidencing any
-------------
necessary corporate action, consents and governmental approvals (if any) with
respect to this Agreement
-31-
and the Notes, certified by the Secretary or an Assistant Secretary of the
Company.
SECTION 9.1.4. Incumbency and Signatures. A Certificate of the
-------------------------
Secretary or an Assistant Secretary of the Company certifying the names of the
officer or officers of the Company authorized to sign this Agreement and the
Notes and other documents provided for in this Agreement, together with a sample
of the true signature of each such officer.
SECTION 9.1.5. Opinion of Counsel to Borrower. The opinion of
------------------------------
Messrs. Cahill Gordon & Reindel, counsel for the Company, addressed to Banks,
substantially in the form of Exhibit D.
SECTION 9.1.6. Other. Such other documents as any Bank may
-----
reasonably request.
SECTION 9.2. All Revolving Loans. The obligation of each Bank to
-------------------
make each Revolving Loan (including, without limitation, its initial Revolving
Loan but excluding, however, any Loan made by a continuation or conversion
pursuant to Article V and any repayment and reborrowing deemed to have been made
------- -
pursuant to Section 1.1.8) is subject to the following further conditions
------- -----
precedent that:
SECTION 9.2.1. No Default. After giving effect to all Loans then
----------
being made (a) no Event of Default, or Credit Suspension Event, shall have
occurred and be continuing, (b) the warranties of the Company contained in
Sections 7.1, 7.2, 7.3, 7.6, 7.7, 7.8, 7.9 and 7.10 shall be true and correct in
- - -------- --- --- --- --- --- --- --- ----
all material respects with the same effect as though made on such date and (c)
if the Borrower of such Loan is a Designated Subsidiary, the warranties of such
Borrower in its Designation Letter shall be true and correct in all material
respects with the same effect as though made on such date.
SECTION 9.2.2. Confirmatory Certificate. Depositary Bank shall have
------------------------
received (in sufficient number of signed counterparts to provide, and Depositary
Bank shall provide, one to each Bank) a certificate dated the date of such
requested Loan and signed by the Chairman of the Board, any Senior Vice
President, the Chief Financial Officer or the Treasurer of the Company as to the
matters set out in Sections 9.2.1 and 9.2.3.
-------- ----- -----
SECTION 9.2.3. Litigation. No litigation, arbitration proceedings or
----------
governmental investigation or proceedings not disclosed in writing by the
Company to Banks prior to the date of the immediately preceding Revolving Loan
hereunder (or in the case of the initial Revolving Loan, prior to the date of
execution and delivery of this Agreement) is pending or known to
-32-
be threatened against the Company or any Subsidiary and no material development
not so disclosed has occurred in any litigation, arbitration proceeding or
governmental proceeding so disclosed, which in the opinion of Banks having, in
the aggregate, a Percentage of 66 2/3% or more, is likely to materially
adversely affect the consolidated financial condition or continued operations of
the Company and its Subsidiaries as a whole or materially impair the ability of
the Company to perform its obligations hereunder.
SECTION 9.3. Initial Loan to Any Designated Subsidiary. The
-----------------------------------------
obligation of each Bank to make the initial Loan to each Designated Subsidiary
hereunder is subject to the further conditions precedent that such Bank shall
have received:
SECTION 9.3.1. Basic Documents. The Revolving Note of such
---------------
Designated Subsidiary payable to the order of the Bank and, with respect to such
Designated Subsidiary the documents contemplated by Sections 9.1.2, 9.1.3 and
-------- ----- -----
9.1.4.
- - -----
SECTION 9.3.2. Designation. The Designation Letter of such
-----------
Designated Subsidiary, substantially in the form of Exhibit E.
SECTION 9.3.3. Opinion of Counsel. A signed copy of an opinion of
------------------
counsel to such Designated Subsidiary, substantially in the form of Exhibit F.
------- -
SECTION 9.4. Term Loans. The obligation of each Bank to make Term
----------
Loans is subject to the conditions precedent (i) that such Bank shall have
received the Term Note of Borrower payable to the order of such Bank, duly
executed and dated the date of such Term Loan, and that the principal of and
accrued interest on all Revolving Notes shall have been or be paid in full prior
to or concurrently with the making of such Term Loan and (ii) that, if the
original principal amount of such Bank's Term Notes exceeds the principal amount
of its Revolving Notes outstanding immediately prior thereto, each of the
conditions precedent set forth in Sections 9.2.1 through 9.2.3 shall have been
-------------- -----
satisfied as if such Term Loan were a Revolving Loan.
ARTICLE X
GUARANTEE
SECTION 10.1. Unconditional Guarantee. For valuable consideration,
-----------------------
receipt whereof is hereby acknowledged, and to induce each Bank to make Loans to
the Designated Subsidiaries, the Company, as principal and not merely as surety,
hereby unconditionally and irrevocably guarantees to each Bank that: (i) the
principal of and interest on each Loan to each Designated
-33-
Subsidiary shall be promptly paid in full when due (whether at stated maturity,
by acceleration or otherwise) in accordance with the terms hereof, and, in case
of any extension of time of payment, in whole or in part, of such Loan, that all
such sums shall be promptly paid when due (whether at stated maturity, by
acceleration or otherwise) in accordance with the terms of such extension; and
(ii) all other amounts payable hereunder by any Designated Subsidiary to any
Bank shall be promptly paid in full when due in accordance with the terms hereof
(the obligations of the Designated Subsidiaries under these subsections (i) and
(ii) of this Section 10.1 being the "Obligations").
------- ----
In addition, the Company hereby unconditionally and irrevocably agrees
that upon default in the payment when due (whether at stated maturity, by
acceleration or otherwise) of any principal of, or interest on, any Loan to any
Designated Subsidiary or such other amounts payable by any Designated Subsidiary
to any Bank, the Company will forthwith pay the same, without further notice or
demand.
SECTION 10.2. Guarantee Absolute. The Company guarantees that the
------------------
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Bank with
respect thereto. The liability of the Company under this guarantee shall be
absolute and unconditional irrespective of: (i) any lack of validity or
enforceability of this Agreement or any other agreement or instrument relating
thereto; (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations,or any other amendment or waiver of
or any consent to departure from this Agreement (including, without limitation,
any extension of the Revolver Expiration Date or any Commitment Increase); (iii)
any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or (iv) any other circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Company, any Borrower or a guarantor.
The guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by any of the Banks upon the insolvency,
bankruptcy or reorganization of the Company or any Borrower or otherwise, all as
though such payment had not been made.
SECTION 10.3. Waivers. The Company hereby expressly waives
-------
diligence, notice of acceptance of this guarantee, presentment, demand for
payment, protest, any requirement that any right or power be exhausted or any
action be taken against
-34-
any Designated Subsidiary or against any other guarantor of all or any portion
of the Loans, and all other notices and demands whatsoever.
The Company irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon the making of any payment under
the guarantee contained in this Article X to be subrogated to the rights of the
------- -
payee against any Designated Subsidiary with respect to such payment or to
otherwise be reimbursed, indemnified or exonerated by a Designated Subsidiary in
respect thereof.
SECTION 10.4. Remedies. Each of the Banks may pursue its respective
--------
rights and remedies under this Article X and shall be entitled to payment
------- -
hereunder notwithstanding any other guarantee of all or any part of the Loans to
the Designated Subsidiaries, and notwithstanding any action taken by any such
Bank to enforce any of its rights or remedies under such other guarantee, or any
payment received thereunder. The Company hereby irrevocably waives any claim or
other rights that it may now or hereafter acquire against the Designated
Subsidiary that arise from the existence, payment, performance or enforcement of
the Company's obligations under this Article X, including, without limitation,
------- -
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Banks
against the Designated Subsidiary, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Designated Subsidiary,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right. If any
amount shall be paid to the Company in violation of the preceding sentence at
any time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Banks and shall forthwith be paid
to the Depositary Bank for the accounts of the respective Banks to be credited
and applied to the Obligations, whether matured or unmatured, in accordance with
the terms of this Agreement, or to be held as collateral for any Obligations or
other amounts payable under this Agreement thereafter arising. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and that the waiver set
forth in this section is knowingly made in contemplation of such benefits.
SECTION 10.5. Survival. This guaranty is a continuing guaranty and
--------
shall (i) remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this guaranty, (ii) be binding
upon the Company, its successors and assigns, (iii) inure to the benefit of and
be
-35-
enforceable by each Bank and their respective successors, transferees and
assigns and (iv) be reinstated if at any time any payment to a Bank hereunder is
required to be restored by such Bank.
ARTICLE XI
EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 11.1. Events of Default. Each of the following shall
-----------------
constitute an Event of Default under this Agreement:
SECTION 11.1.1. Non-Payment of Notes, etc. Default, and continuance
-------------------------
thereof for five days after the due date thereof, in the payment when due of any
interest on any Note or any facility fee, or default in the payment when due of
any principal of any Note or other amounts payable by any Borrower hereunder
(excluding, however, to the extent disputed by Borrower in good faith, amounts
payable pursuant to Section 3.1.5, 3.1.7 or 4.5 in an aggregate amount not
------- ----- ----- ---
exceeding $1,000,000 for all Banks).
SECTION 11.1.2. Non-Payment of Other Indebtedness. Default in the
---------------------------------
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any other indebtedness for borrowed money or other
obligations evidenced by a note, debenture, or similar instrument (including
capitalized lease obligations) in an aggregate principal amount exceeding
$50,000,000 of, or guaranteed by, the Company or any Significant Subsidiary or
default in the performance or observance of any obligation or condition with
respect to any such other indebtedness if the effect of such default in the
performance or observance is to accelerate the maturity of any such indebtedness
or to permit the holder or holders thereof, or any trustee or agent for such
holders, to cause such indebtedness to become due and payable prior to its
expressed maturity.
SECTION 11.1.3. Bankruptcy, Insolvency, etc. (i) The Company or any
---------------------------
Significant Subsidiary becomes insolvent or admits in writing its inability to
pay its debts or fails to pay its debts, generally as they become due; or the
Company or any Significant Subsidiary applies for, consents to, or acquiesces in
the appointment of, a trustee, custodian or receiver for the Company or such
Significant Subsidiary or any property thereof, or makes a general assignment
for the benefit of creditors; or, in the absence of such application, consent or
acquiescence, a trustee, custodian or receiver is appointed for the Company or
any Significant Subsidiary or for a substantial part of the property of any
thereof and is not discharged within 60 days; or any bankruptcy, reorganization,
debt arrangement, or other proceeding or case under any bankruptcy or insolvency
law, or any
-36-
dissolution or liquidation proceeding (except the voluntary dissolution, not
under any bankruptcy or insolvency law, of a Significant Subsidiary), is
commenced in respect of the Company or any Significant Subsidiary, and if such
proceeding is not commenced by the Company or Significant Subsidiary, it is
consented to or acquiesced in by the Company or Significant Subsidiary or
remains for 60 days undismissed; or any corporate action is taken by the
shareholder(s) or board of directors of the Company or any Significant
Subsidiary to authorize or further any of the actions described in this Section
-------
11.1.3.
- - ------
SECTION 11.1.4. Non-Compliance with This Agreement. Failure by the
----------------------------------
Company to comply with or to perform any provision of this Agreement (and not
constituting an Event of Default under any of the preceding provisions of this
Article XI) and continuance of such failure for 30 days, after notice thereof to
- - ------- --
the Company from any Bank or the holder of any Note stating that such Bank or
holder is of the opinion that such failure is material; provided, that, any
failure by the Company to comply with any provision of this Agreement solely as
a result of a change in GAAP shall not constitute an Event of Default.
SECTION 11.1.5. Warranties. Any warranty made by the Company herein
----------
is breached in any material respect, or any schedule, certificate, financial
statement or report furnished by the Company to any Bank is false or misleading
in any material respect on the date as of which the facts therein set forth are
stated or certified.
SECTION 11.1.6. ERISA. The Company or any Significant Subsidiary
-----
incurs any liability to the Pension Benefit Guaranty Corporation or any
successor thereto in excess of $50,000,000.
SECTION 11.2. Effect of Event of Default. If any Event of Default
--------------------------
described in Section 11.1.3 shall occur, the Credit (if it has not theretofore
------- ------
terminated) shall immediately terminate and all Notes and all other amounts
payable hereunder shall become immediately due and payable, all without
presentment or notice of any kind all of which are hereby waived; and, in the
case of any other Event of Default which shall have occurred and remain
continuing, Banks having, in the aggregate, a Percentage of 66 2/3% or more may,
by the giving of notice in writing to the Company, declare the Credit (if it has
not theretofore terminated) to be terminated and/or all Notes and all other
amounts payable hereunder to be immediately due and payable, whereupon the
Credit shall immediately terminate and/or all Notes and all other amounts
payable hereunder shall become immediately due and payable, all without
presentment or notice of any kind all of which are hereby waived.
Notwithstanding the foregoing, the effect as an Event of Default of any event
described in Section 11.1.1 or Section 11.1.3 may be waived by the written
------- ------ ------- ------
-37-
concurrence of Banks having, in the aggregate, a Percentage of 100%, and the
effect as an Event of Default of any other event described in Section 11.1 may
------- ----
be waived by the written concurrence of Banks having, in the aggregate, a
Percentage of 66 2/3% or more.
SECTION 11.3. Defaults by Designated Subsidiaries. If any of the
-----------------------------------
following defaults with respect to any Designated Subsidiary have occurred and
are continuing then Section 11.4 shall apply:
SECTION 11.3.1. Warranties. Any warranty made by such Designated
----------
Subsidiary herein or in the Designation Letter pursuant to which it is
designated as a Borrower hereunder is breached in any material respect or any
schedule, certificate, financial statement or report furnished by such
Designated Subsidiary to any Bank is false or misleading in any material respect
on the date as of which the facts therein set forth are stated or certified.
SECTION 11.3.2. Non-Payment of Other Indebtedness. Default in the
---------------------------------
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any other indebtedness for borrowed money or other
obligations evidenced by a note, debenture, or similar instrument (including
capitalized lease obligations) in an aggregate principal amount exceeding
$50,000,000 of, or guaranteed by, a Designated Subsidiary or default in the
performance or observance of any obligation or condition with respect to any
such other indebtedness if the effect of such default in the performance or
observance is to accelerate the maturity of any such indebtedness or to permit
the holder or holders thereof, or any trustee or agent for such holders, to
cause such indebtedness to become due and payable prior to its expressed
maturity.
SECTION 11.3.3. Bankruptcy, Insolvency, etc. A Designated Subsidiary
---------------------------
becomes insolvent or admits in writing its inability to pay its debts or fails
to pay its debts, generally as they become due; or the Designated Subsidiary
applies for, consents to, or acquiesces in the appointment of, a trustee,
custodian or receiver for such Designated Subsidiary or any property thereof, or
makes a general assignment for the benefit of creditors; or, in the absence of
such application, consent or acquiescence, a trustee, custodian or receiver is
appointed for any Designated Subsidiary or for a substantial part of the
property of any thereof and is not discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other proceeding or case under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding is
commenced in respect of the Company or any Significant Subsidiary, and if such
proceeding is not commenced by such Designated Subsidiary, it is
-38-
consented to or acquiesced in by such Designated Subsidiary or remains for 60
days undismissed; or any corporate action is taken by the shareholder(s) or
board of directors of any Designated Subsidiary to authorize or further any of
the actions described in this Section 11.3.3.
------- ------
SECTION 11.3.4. Non-Compliance with This Agreement. Failure by
----------------------------------
Designated Subsidiary to comply with or to perform any provision of this
Agreement (and not constituting an Event of Default under any of the preceding
provisions of this Section 11.3) and continuance of such failure for 30 days,
------- ----
after notice thereof to the Company and the Designated Subsidiary from any Bank
or the holder of any Note stating that such Bank or holder is of the opinion
that such failure is material.
SECTION 11.4. Effect of Default by Designated Subsidiary. If any
------------------------------------------
default described in Section 11.3.2 or 11.3.3 shall occur, without any action by
------- ------ ------
the Bank, the Banks shall have no obligation to make Loans to such Designated
Subsidiary under this Agreement and all Loans under this Agreement to such
Designated Subsidiary and all other amounts payable hereunder by such Designated
Subsidiary shall become immediately due and payable, all without presentment or
notice of any kind; and, in the case of any other default described in Section
-------
11.3 which shall have occurred and remain continuing, Banks having, in the
- - ----
aggregate, a Percentage of 66 2/3% or more may, by the giving of notice in
writing to the Company, decline to make further Loans to such Designated
Subsidiary and/or declare all Loans under this Agreement to such Designated
Subsidiary and all other amounts payable hereunder by such Designated Subsidiary
to be immediately due and payable, without presentment or notice of any kind.
Notwithstanding the foregoing, the effect of any event described in Section 11.3
------- ----
may be waived by the written concurrence of Banks having, in the aggregate, a
Percentage of 66 2/3% or more.
ARTICLE XII
CERTAIN DEFINITIONS
When used herein, the following terms shall have the following
meanings (which shall be equally applicable to the singular and plural forms
thereof):
"Alternate Currency" means any currency other than Dollars which is
------------------
freely transferable and convertible into Dollars.
"Alternate Currency Loan" see the definition below of "Loan."
-----------------------
"Alternate Currency Payment Office" has the meaning specified
---------------------------------
in Section 1.3(e).
------- ------
-39-
"Alternate Rating Agency" shall mean (i) Fitch Investors Service,
-----------------------
Inc., (ii) Duff & Phelps Credit Rating Co. or (iii) another nationally
recognized rating agency selected by the Borrower to rate its senior debt
securities, which, in the case of clause (iii), shall be approved by Banks
having, in the aggregate, a Percentage of at least 66 2/3%.
"Assuming Bank" shall mean, at any time, a Person which
-------------
proposes to become a Bank hereunder pursuant to Section 1.1.8.
------- -----
"Assumption Agreement" shall mean an agreement by which an institution
--------------------
agrees to become a Bank party to this Agreement pursuant to Section 1.1.8.
------- -----
"Bank" shall mean the Banks listed on the signature pages hereof and
----
each institution that becomes a party hereto pursuant to Section 1.1.8 or 13.5.
------- ----- ----
"Bank Indemnitees" -- see Section 13.9.
---------------- ------------
"Borrower" shall mean the Company or any Designated Subsidiary,
--------
as the context may require.
"Borrowing Date" shall mean, with respect to each Loan, the date upon
--------------
which a Bank makes such Loan hereunder to Borrower.
"Business Day" shall mean a day on which banks are not authorized or
------------
required by law to close for business in New York City.
"CD Interest Period" shall mean as to each CD Loan, the period which
------------------
shall begin on (and include) the most recent Borrowing Date with respect to such
Loan, and shall end, as Borrower shall elect in its notice pursuant to Section
-------
1.2 or 5.4, as the case may be, on (and include) the day 30, 60, 90 or 180 days
- - --- ---
thereafter, as selected by Borrower; provided that no CD Interest Period
--------
commencing prior to the Revolver Expiration Date or the final maturity, by
acceleration or otherwise, of all of the Term Loans shall end later than such
Revolver Expiration Date or date of maturity of the Term Loans, as the case may
be, and further, provided that any CD Interest Period which would otherwise end
------- --------
on a day which is not a Business Day shall be extended to the next succeeding
Business Day.
"CD Loan" -- see definition below of "Loan".
-------
"CD Margin" -- see Section 3.1.8.
--------- ------- -----
"CD Rate" shall mean for each CD Interest Period a rate per annum
-------
which is equal to the CD Margin as of the first day of the applicable Interest
Period plus the sum (rounded if necessary
-40-
to the nearest 1/20 of 1%) of (i) the rate obtained by dividing (x) the
arithmetic mean as calculated by the Depositary Bank of the respective rates per
annum (rounded if necessary to the nearest 1/20 of 1%) of the Reference Banks,
in each such case determined by each Reference Bank to be the average of the bid
rates quoted to it at its principal office at approximately 10:00 a.m. New York
City time (or as soon thereafter as practicable) on the first day of the CD
Interest Period for such Loan by New York certificate of deposit dealers of
recognized standing selected by such Reference Bank for the purchase at face
value in the secondary certificate of deposit market of certificates of deposit
of such Reference Bank for a period, and in an amount, comparable to such CD
Interest Period and the principal amount of the CD Loan which shall be made by
such Reference Bank and outstanding during such CD Interest Period, provided,
that, if such quotations from such dealers are not available to any Reference
Bank, such Reference Bank shall determine a reasonably equivalent rate on the
basis of another source or sources selected by it, by (y) a percentage equal to
100% minus the stated maximum rate of all reserve requirements as specified in
Regulation D (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable on the first day of such CD
Interest Period to a negotiable certificate of deposit in excess of $100,000
with a maturity equal to such CD Interest Period of any member bank of the
Federal Reserve System, plus (ii) the daily net annual assessment rate as
estimated by the Depositary Bank on the first day of such CD Interest Period for
determining the current annual assessment payable by the Depositary Bank to the
Federal Deposit Insurance Corporation for insuring such certificates of deposit.
"Commitment" shall mean the amount set forth opposite each Bank's
----------
signature hereto, as such amount may be reduced or increased from time to time
pursuant to Sections 1.1.6, 1.1.7 and 1.1.8 or Section 13.5.
-------- ----- ----- ----- ------- ----
"Commitment Increase" has the meaning specified in Section 1.1.8.
------------------- ------- -----
"Consolidated Capitalization" shall mean the sum of Consolidated
---------------------------
Debt and Consolidated Net Worth.
"Consolidated Cash Interest Expense" means, with respect to the
----------------------------------
Company for any period, total interest expense deducted in calculating
Consolidated Net Income (including that attributable to capitalized lease
liabilities of the Company and Consolidated Subsidiaries in accordance with
GAAP, but excluding interest expense not payable in cash (including
amortization of discount)), with respect to all outstanding Consolidated Debt,
as determined on a consolidated basis for the Company and Consolidated
Subsidiaries in conformity with GAAP.
-41-
"Consolidated Debt" shall mean the sum of all indebtedness for
-----------------
borrowed money of the Company and Consolidated Subsidiaries, all indebtedness
secured by assets of (and whether or not assumed by) the Company or any
Consolidated Subsidiary (which indebtedness shall be valued at the lesser of the
outstanding principal amount thereof or the book value of such assets), all
capitalized lease liabilities of the Company and Consolidated Subsidiaries and
all outstanding obligations under guarantees and similar undertakings with
respect to any such indebtedness or liabilities of Persons other than the
Company and Consolidated Subsidiaries which is required to be reflected on the
Company's balance sheet (excluding any notes thereto) in accordance with GAAP;
provided, that there shall be excluded from Consolidated Debt any such
- - --------
indebtedness which by its terms is presently convertible into or exchangeable
for capital stock of the Company at a price per share at least 15 percent below
the Current Market Price per share of such capital stock.
"Consolidated EBDIT" shall mean, without duplication, with respect to
------------------
the Company and Consolidated Subsidiaries for any period, the sum of the amounts
for such period of (i) Consolidated Net Income, (ii) provision for taxes based
on income, (iii) depreciation expense, (iv) amortization expense, (v) total
interest expense deducted in calculating Consolidated Net Income, and (vi) other
non-cash items reducing Consolidated Net Income all as determined on a
consolidated basis for the Company and Consolidated Subsidiaries in conformity
with GAAP.
"Consolidated Net Income" shall mean with respect to the Company for
-----------------------
any period, the net income (or loss) of the Company and Consolidated
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; provided that there shall
--------
be excluded (i) the income (or loss) of any Person (other than a Subsidiary of
the Company) in which any other Person (other than the Company or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any of its
Subsidiaries by such Person during such period and (ii) the income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary of the Company or
is merged into or consolidated with any of the Company's Subsidiaries or that
Person's assets are acquired by the Company or any of its Subsidiaries.
"Consolidated Net Worth" shall mean the par value (or value stated on
----------------------
the books of the Company) of the capital stock of all classes of the Company and
Consolidated Subsidiaries issued and outstanding, plus (or minus in the case of
a surplus deficit), the amount of the consolidated surplus, whether capital or
earned, of the Company and its Subsidiaries plus the principal amount of any
indebtedness of the Company and the Consolidated
-42-
Subsidiaries which by its terms is presently convertible into or exchangeable
for capital stock of the Company at a price per share at least 15 percent below
the Current Market Price per share of such capital stock.
"Consolidated Subsidiary" shall mean any Subsidiary the accounts of
-----------------------
which are consolidated with those of the Company in accordance with GAAP.
"Continuation Date" -- see Section 5.1.
----------------- ------- ---
"Conversion Date" -- see Section 5.2.
--------------- ------- ---
"Credit" shall mean the sum of (i) the aggregate unused Commitments of
------
all Banks hereunder to make Revolving Loans or Term Loans plus (ii) the
aggregate principal amount of Revolving Loans or Term Loans outstanding
hereunder.
"Credit Suspension Event" shall mean any event which if it continues
-----------------------
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
"Current Market Price" shall mean for any class of capital stock of
--------------------
the Company the average for any 20 consecutive Stock Trading Days ending within
30 days of the date of determination of the average of the high and low sale
prices per share, or if no sales are reported, the average of the bid and ask
prices per share or, if more than one in either case, the average of the average
bid and average ask prices per share) for each Stock Trading Day in such 20
consecutive Stock Trading Day period, as reported in the composite transactions
for the New York Stock Exchange, or if such capital stock is not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which such capital stock is listed or admitted to trading or, if such capital
stock is not listed or admitted to trading on a United States national or
regional securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or by the National
Quotation Bureau Incorporated. A "Stock Trading Day" means each day on which
the securities exchange or quotation system which is used to determine the
Current Market Price is open for trading or quotation.
"Depositary Bank" -- see Section 1.2.
--------------- ------- ---
"Designated Subsidiary" shall mean any corporate Subsidiary of the
---------------------
Company designated for borrowing privileges under this Agreement pursuant to
Section 13.10 hereof.
- - ------- -----
-43-
"Designation Letter" shall mean, in respect of any Designated
------------------
Subsidiary, a letter in the form of Exhibit E hereto signed by such Designated
---------
Subsidiary and the Company.
"Dollars" and the sign "$" shall mean lawful money of the United
-------
States of America.
"Domestic Loan" -- see definition below of "Loan."
-------------
"Equivalent Domestic Loan" -- see Section 6.3.
------------------------ -----------
"Eurodollar Day" shall mean a day on which dealings are carried on in
--------------
the London Interbank market in Dollars and on which banks are not authorized or
required by law to close for business in New York City.
"Eurodollar Interest Rate" -- see Section 3.1.2.
------------------------ ------- -----
"Eurodollar Loan" -- see definition below of "Loan."
---------------
"Eurodollar Margin" -- see Section 3.1.8.
----------------- ------- -----
"Eurodollar Office" -- see Section 1.1.3.
----------------- ------- -----
"Eurodollar Period" shall mean, as to each Eurodollar Loan, the period
-----------------
which shall begin on (and include) the most recent Borrowing Date with respect
to such Loan and shall end, as Borrower shall elect in its notice pursuant to
Section 1.2 or 5.4, as the case may be, on (and include) the day one, two, three
- - ------- --- ---
or six months thereafter, as selected by Borrower; provided that no Eurodollar
--------
Period commencing prior to the Revolver Expiration Date or the final maturity,
by acceleration or otherwise, of all of the Revolving Loans or Term Loans shall
end later than such Revolver Expiration Date or date of maturity, as the case
may be. Subject to the proviso in the preceding sentence, any Eurodollar Period
which would otherwise end on a day which would not be a Eurodollar Day shall
instead continue to and end on the next succeeding Eurodollar Day, unless such
next succeeding Eurodollar Day would be the first Eurodollar Day in a calendar
month, in which case such Eurodollar Period shall instead end on the next
preceding Eurodollar Day, and any Eurodollar Period which begins on the last
Eurodollar 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
Eurodollar Period) shall end on the last Eurodollar Day of a calendar month.
"Event of Default" shall mean any of the events described in
----------------
Section 11.1.
------- ----
"Federal Funds Rate" shall mean for any period, a fluctuating interest
------------------
rate equal for each day during such period
-44-
to the weighted average of the rates on overnight Federal Funds transactions
with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for each day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Depositary Bank
from three Federal Funds brokers of recognized standing selected by the
Depositary Bank.
"Fixed Rate Interest Date" -- see Section 3.1.
------------------------ ------- ---
"Fixed Rate Loan" -- see definition below of "Loan".
---------------
"GAAP" shall mean generally accepted accounting principles set forth
----
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Increase Date" has the meaning assigned to that term in Section
------------- -------
1.1.8.
- - -----
"Indemnified Liabilities" -- see Section 13.9.
----------------------- ------- ----
"Interest Date" shall mean Fixed Rate Interest Date and/or Prime
-------------
Rate Interest Date, as the case may be.
"Interest Period" shall mean a CD Interest Period or a
---------------
Eurodollar Period, as the context requires, or both.
"Liabilities" -- see Section 4.1.
----------- ------- ---
"Loan" shall mean each lending by any Bank hereunder. Particular
----
types of Loans are as follows:
(i) "Alternate Currency Loan" shall mean any Loan denominated in an
-----------------------
Alternate Currency;
(ii) "CD Loan" shall mean any Loan which bears interest at the CD
-------
Rate;
(iii) "Domestic Loan" shall mean any Loan which is a Prime Rate
-------------
Loan or a CD Loan;
(iv) "Eurodollar Loan" shall mean any Loan which bears interest at
---------------
the Eurodollar Interest Rate;
-45-
(v) "Fixed Rate Loan" shall mean a CD Loan or a Eurodollar Loan;
---------------
(vi) "Market Rate Loan" -- see Section 1.3;
---------------- ------- ---
(vii) "Prime Rate Loan" shall mean any Loan bearing interest at
---------------
the Prime Rate;
(viii) "Revolving Loan" shall mean any Loan made pursuant to the
--------------
unused Commitments contained in Section 1.1.1 but shall exclude any Market Rate
------- -----
Loan; and
(ix) "Term Loan" shall mean any Loan made pursuant to the
---------
commitments contained in Section 1.1.2.
------- -----
"Market Rate" -- see Section 1.3(a).
----------- ------- ------
"Market Rate Loan" -- see definition above of "Loan."
----------------
"Market Rate Note" -- see Section 2.3.
---------------- ------- ---
"Notes" shall mean the Revolving Notes, Market Rate Notes and Term
-----
Notes, or any of them.
"Obligations" see Section 10.1.
----------- ------- ----
"Percentage" with respect to any Bank shall mean at any time the
----------
percentage of the Credit represented by such Bank's Commitment.
"Person" shall mean any corporation, partnership, association,
------
trust, individual or other entity.
"Prime Rate" shall mean the greater of: (a) the average of the
----------
rates per annum from time to time announced by each of the Reference Banks at
the address set forth below its signature hereto as such Bank's prime commercial
lending rate and (b) the effective Federal Funds Rate for overnight funds plus
1/2 of 1% per annum.
"Prime Rate Interest Date" -- see Section 3.1.
------------------------ ------- ---
"Prime Rate Loan" -- see definition of "Loan" above.
---------------
"Public Debt Rating" means, as of any date, the highest rating that
------------------
has been most recently announced by either Moody's Investors Service, Inc.
("Moody's") or Standard & Poor's Corporation ("S&P") or an Alternate Rating
Agency in substitution for Moody's or S&P (but not both), for any class of long-
term unsecured senior debt issued by the Company; provided, that if the ratings
--------
determined by Moody's or S&P (or an Alternate Rating
-46-
Agency) differ by more than one rating category the Public Debt Rating shall be
the average of the two ratings. For purposes of the foregoing, (a) if an
Alternate Rating Agency is used, the ratings provided by such Alternate Rating
Agency shall be converted into an equivalent of Moody's or S&P, as nearly as
practicable, for purposes of determining the Eurodollar Margin and CD Margin;
and (b) if any rating established or deemed to have been established by Moody's
or S&P shall be changed (other than as a result of a change in the rating system
of either Moody's or S&P), such change shall be effective as of the date on
which such change is first announced publicly by the rating agency making such
change. Any change in the Eurodollar Margin or CD Margin due to a change in the
Public Debt Rating shall be effective for Interest Periods commencing after the
public announcement of the change in debt rating. If the rating system of
either Moody's or S&P shall change, the Company and the Banks shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such changed rating system.
"Reference Banks" shall mean Chemical Bank, NationsBank, N.A.
--------- -----
(Carolinas) (formerly NationsBank of North Carolina N.A.), and The Chase
Manhattan Bank, N.A. or, with respect to Eurodollar Loans, the Eurodollar Office
of any of them.
"Regulation D" -- see Section 3.1.2.1.
------------ ------- -------
"Revolver Expiration Date" means the earlier of May 31, 1996 or the
------------------------
date of termination in whole of the Commitments.
"Revolving Loan" -- see definition above of "Loan."
--------- ----
"Revolving Note" -- see Section 2.1.
-------------- ------- ---
"Significant Subsidiary" shall have the meaning assigned to such
----------------------
term in Regulation C (S) 230.405 promulgated by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, as such
definition is in effect as of the date of this Agreement.
"Subsidiary" shall mean a corporation of which the Company and its
----------
other Subsidiaries own directly or indirectly more than 50% of the ordinary
voting power for the election of directors.
-47-
"Term Loan" -- see definition above of "Loan."
---------
"Term Note" -- see Section 2.2.
--------- ------- ---
ARTICLE XIII
GENERAL
SECTION 13.1. Waiver; Amendments. No delay on the part of any Bank
------------------
or the holder of any Note in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by any of
them of any right, power or remedy preclude other or further exercise thereof,
or the exercise of any other right, power or remedy. No amendment, modification
or waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing
(including telegram or telex) and signed and delivered by the Company and Banks
having an aggregate Percentage of not less than the Percentage expressly
designated herein with respect thereto or, in the absence of such designation as
to any provision of this Agreement or the Notes, by Banks having, in the
aggregate, a Percentage of 66 2/3% or more, and then any such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No amendment, modification,
waiver or consent (i) shall extend or increase the amount of the Credit, the
scheduled maturity of the Notes, or the scheduled date for the payment of
interest or fees, or reduce the fees or the rate of interest payable with
respect to the Notes or modify the provisions of Section 3.1.5, 3.1.7, 4.5, 6.3,
------- ----- ----- --- ---
6.4, or 13.9 or modify the provisions of Article X in a manner adverse to the
- - --- ---- ------- -
Banks or impose an additional obligation on any of the Banks or reduce the
aggregate Percentage required to effect an amendment, modification, waiver or
consent without the consent of all of the Banks or (ii) shall extend the
scheduled maturity of, or the scheduled date for the payment of interest or fees
on, or reduce the principal amount of, or rate of interest on, any Note without
the consent of the holder of such Note. The provisions of this Section 13.1 may
------------
not be amended or modified without the consent of all of the Banks.
SECTION 13.2. Confirmations. Borrower and each holder of a Revolving
-------------
Note agree from time to time, upon written request received by it from the
other, to confirm to the other in writing the aggregate unpaid principal amount
of the Revolving Loans then outstanding under such Revolving Note; and each such
holder agrees from time to time, upon written request received by it from
Borrower, to make the Revolving Note held by it (including the schedule attached
thereto) available for reasonable inspection by Borrower at the office of such
holder. Each Bank
-48-
shall, promptly upon request by Borrower, furnish Borrower with a photocopy of
the schedule attached to such Bank's Revolving Note.
SECTION 13.3. Notices. Any notice from Borrower to any Bank
-------
(including Depositary Bank) under Section 1.2, 1.1.6, 1.1.8 or 5.4 may be (i)
----------- ----- ----- ---
telephonic if confirmed, prior to the date for taking (or for the effectiveness
of) the action specified in such notice, by a writing received by such Bank or
(ii) by facsimile if confirmed, prior to the date for taking (or for the
effectiveness of) the action specified in such notice, by telephone. Any other
notice hereunder to Borrower or any Bank (or other holder) shall, except as
otherwise expressly provided, be in writing and, if mailed shall be deemed to
have been given (i) three days after the date when sent by first class mail,
postage prepaid, (ii) one day after sent by overnight delivery service and, in
each case, addressed to Borrower or such Bank (or other holder) at its address
shown below its signature hereto, or at such other address as it may, by written
notice received by the other parties to this Agreement, have designated as its
address for such purpose. Any Bank or the holder of any Note giving any waiver,
consent or notice to, or making any request upon, Borrower hereunder shall
promptly notify the Depositary Bank thereof.
SECTION 13.4. 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
("GAAP"), applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
--------
Depositary Bank that it wishes to amend any covenant in Article VIII to
eliminate the effect of any change in generally accepted accounting principles
on the operation of such covenant, then compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
immediately before the 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 Company and Banks holding,
in the aggregate, a Percentage of 66 2/3% or more.
SECTION 13.5. Participations; Transfers of Notes. A Bank may assign
----------------------------------
or sell participations in all or any part of its Commitment or any Loan to
another bank or other entity; provided that an assignment or participation shall
--------
be in a minimum aggregate amount of $10,000,000; and provided, further (a)
-------- -------
except
-49-
in the case of assignments of or participations in Market Rate Loans, that the
Company shall have consented in writing to the proposed assignment or
participation, which consent shall not be unreasonably withheld; and (b) in the
case of a participation, no such participation shall in any way affect such
Bank's obligations under this Agreement, and provided, that all amounts payable
by any Borrower under Article III shall be determined as if such Bank had not
------- ---
sold such participation. Upon execution and delivery of an appropriate
instrument, payment by any assignee to the transferor Bank of an amount equal to
the purchase price agreed between such transferor Bank and such assignee, and
recordation of such assignment in the Register, such assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with Commitments 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. The Company shall maintain a copy of each instrument of assignment
and assumption delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Banks and the Commitment of, and
principal amount owing to each Bank from time to time and, on the effective date
of each instrument of assignment received by it which meets the requirements of
this paragraph, the Company shall record such assignment in the Register. Upon
the consummation of any assignment pursuant to this Section 13.5, the transferor
------- ----
Bank and the Borrower shall make approriate arrangements so that, if required, a
new Note is issued to the assignee.
The agreement executed by the Bank in favor of any participant shall
not give the participant the right to require such Bank to take or omit to take
any action hereunder except action directly relating to (i) the extension of a
payment date with respect to any portion of the principal of or interest on any
amount outstanding or any fees payable hereunder allocated to such participant,
(ii) the reduction of the principal amount of any Loan outstanding hereunder,
(iii) the reduction of the rate of interest payable on such amount or any amount
of fees payable hereunder to a rate or amount, as the case may be, below that
which the participant is entitled to receive under its agreement with such Bank,
or (iv) an extension of the Revolver Expiration Date in accordance with the
terms hereof. Each Bank may furnish to participants (including prospective
participants and prospective assignees) any information in the possession of
such Bank from time to time concerning any Borrower; provided, that such Bank
--------
shall require any such participant or assignee (prospective or otherwise) to
agree in writing to maintain the confidentiality of such information; and
---
provided further, that such Bank may not furnish to the participant or assignee
- - -------- -------
any information which the Borrower has identified in writing to such Bank to be
trade secrets or proprietary information.
-50-
If, pursuant to this Section 13.5, any interest in this Agreement or
------- ----
any Note is transferred to any assignee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Bank shall cause such assignee concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Bank (for the benefit of the
transferor Bank and the Company) that it is either (x) entitled to the benefits
of an income tax treaty with the United States which provides for an exemption
from United States withholding tax on interest and other payments which may be
made by the Company to such Bank pursuant to the terms of this Agreement or any
other credit document; or (y) engaged in a trade or business within the United
States, (ii) to furnish to the transferor Bank and the Company either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such assignee claims entitlement to complete exemption from U.S.
federal withholding tax on all payments hereunder) and (iii) to agree (for the
benefit of the transferor Bank and the Company) to provide to the transferor
Bank and the Company a new Form 4224 or Form 1001 upon the obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such assignee, and to comply from time to time with all applicable U.S. laws
and regulations with regard to such withholding tax exemption.
Notwithstanding anything to the contrary in this Section 13.5, any
------- ----
Bank may pledge and assign its rights hereunder and under the Notes held by it
to a Federal Reserve Bank as collateral.
SECTION 13.6. Regulation U. Each Bank represents that it is not
------------
relying, either directly or indirectly, upon any margin stock (as such term is
defined in Regulation U promulgated by the Board of Governors of the Federal
Reserve System) as collateral security for the extension or maintenance by it of
any credit provided for in this Agreement.
SECTION 13.7. Confidentiality of Information. Each Bank understands
------------------------------
that some of the information furnished pursuant to this Agreement or obtained by
such Bank pursuant to any inspection made in accordance with Section 8.2 may, at
-----------
the time furnished or obtained, not have been made public, and each Bank agrees
to keep confidential all such information and will make no use of such
information until it shall have become public except in connection with this
Agreement and with such Bank's outside counsel and accountants, subject however
to each Bank's obligations under law or pursuant to subpoenas or other process
to make information available to governmental agencies and examiners or to
others.
-51-
SECTION 13.8. Limitation on Interest. No provision of this Agreement
----------------------
or any Note shall require the payment or permit the collection of interest in
excess of the maximum rate permitted by applicable law.
SECTION 13.9. Costs, Expenses and Taxes. The Company shall pay all
-------------------------
reasonable out-of-pocket expenses of the Depositary Bank and the Banks (but
excluding the fees and disbursements of counsel to the Depositary Bank and the
Banks) in connection with the preparation of this Agreement and all instruments
and documents relating thereto or necessary to satisfy the conditions to lending
hereunder. The Company agrees to pay on demand all out-of-pocket costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
each Bank and the Depositary Bank in connection with the enforcement of this
Agreement, the Notes, any such other instruments or documents or any collateral
security. In addition, each Borrower agrees (i) to pay, and to save the
Depositary Bank and the Banks harmless from all liability for, any stamp or
other taxes which may be payable in connection with the execution or delivery of
this Agreement, the borrowings hereunder, or the issuance of the Notes or of any
other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith and (ii) to indemnify, exonerate
and hold each of the Depositary Bank and the Banks and each of the officers,
directors, employees and agents of such Banks (herein called collectively the
"Bank Indemnitees") free and harmless from and against any and all actions,
causes of action, suits, losses, liabilities, damages and expenses, including,
without limitation, reasonable attorneys' fees and disbursements incurred by any
Bank Indemnitee as a result of, or arising out of, or relating to any
transaction financed with proceeds of any of the Loans or the execution,
delivery, performance, enforcement or administration of this Agreement (herein
called collectively the "Indemnified Liabilities"), except for any such
Indemnified Liabilities arising on account of any such Bank Indemnitee's
negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 13.10. Designated Subsidiaries.
-----------------------
(i) Designation. The Company may at any time, and from time to time,
-----------
by delivery to the Depositary Bank of a Designation Letter duly executed by the
Company and the respective Subsidiary, designate such Subsidiary as a
"Designated Subsidiary" for purposes of this Agreement and such Subsidiary shall
thereupon become a "Designated Subsidiary" for purposes of this Agreement. The
Depositary Bank shall promptly notify each
-52-
Bank of each such designation by the Company and the identity of the respective
Subsidiary.
(ii) Termination. Upon the payment and performance in full of all of
-----------
the Obligations of any Designated Subsidiary then, so long as at the time no
request for a Fixed Rate Loan to such Designated Subsidiary is outstanding, such
Subsidiary's status as a "Designated Subsidiary" shall terminate upon notice to
such effect from the Company to the Depositary Bank (which notice the Depositary
Bank shall deliver to each Bank). Thereafter, the Banks shall be under no
further obligation to make any Loan hereunder to such Designated Subsidiary.
SECTION 13.11. Captions. Captions used in this Agreement are for
--------
convenience only and shall not affect the construction of this Agreement.
SECTION 13.12. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and each Note shall be a contract made under and governed by the
internal laws of the State of New York. All obligations of Borrower and rights
of the Banks and any other holders of the Notes expressed herein or in the Notes
shall be in addition to and not in limitation of those provided by applicable
law. The Borrowers hereby submit 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 Borrowers irrevocably waive, to the fullest extent permitted by
law, any objection which the may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
SECTION 13.13. Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the different parties on separate counterparts
(provided, however, that each such counterpart shall be executed by the Company)
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
SECTION 13.14. Effectiveness. When counterparts executed by all the
-------------
Banks shall have been lodged with the Company and counterparts executed by the
Company shall have been lodged with each Bank this Agreement shall become
effective as of June 1, 1995.
SECTION 13.15. Successors and Assigns. This Agreement shall be
----------------------
binding upon Borrower and the Banks and their respective
-53-
successors and assigns, and shall inure to the benefit of the Borrower and the
Banks and the respective successors and assigns of the Banks, except that the
Company may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of Banks having, in the aggregate, a
Percentage of at least 100%.
SECTION 13.16. Duties of Depositary Bank. The Depositary Bank shall
-------------------------
have no duties or responsibilities except those expressly set forth in this
Agreement and neither the Depositary Bank nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith, except
for its or their own gross negligence or willful misconduct. In addition, the
Banks agree to indemnify the Depositary Bank, ratably in accordance with the
aggregate unpaid principal amount of the Loans made by the Banks (or, if no
Loans are at the time outstanding, ratably in accordance with their respective
Percentages), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Depositary Bank in any way relating to or arising out of the duties
and responsibilities of the Depositary Bank expressly set forth in this
Agreement; provided that (i) the Banks shall only be liable to the extent the
Borrower fails to indemnify and pay the Depositary Bank pursuant to Section 13.9
------- ----
hereof, and (ii) no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Depositary
Bank.
SECTION 13.17. Severability. In case any one or more of the
------------
provisions contained in this Agreement or the Notes should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
SECTION 13.18. Representation of the Banks. Each Bank represents and
---------------------------
warrants to the Borrower that it is (x) a United States person (as defined in
Section 7701(a) (30) of the Internal Revenue Code of 1986, as amended (the
"Code")); (y) entitled to the benefits of an income tax treaty with the United
States which provides for an exemption from United States withholding tax on
interest and other payments which may be made by the Borrower to such Bank
pursuant to the terms of this Agreement; or (z) engaged in a trade or business
within the United States. Each Bank that is organized under the laws of any
jurisdiction other than the United States or any State thereof (including the
District of Columbia) agrees to furnish to the Borrower, prior to the date of
the first interest payment hereunder, two copies of either U.S.
-54-
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Bank claims entitlement to complete exemption from U.S. federal
withholding tax on all payments hereunder) and to provide to the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Bank, and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemptions. Notwithstanding any other provisions
of this Agreement, the representations, warranties and obligations of the Banks
set forth in Section 13.5 and this Section 13.18 shall survive the borrowing of
------- ---- ------- -----
the Loans and the assignment, sale, repayment or other disposition of the Loans
or any interest therein.
SECTION 13.19. Survival. The obligations of the Borrower under
--------
Sections 3.1.5, 3.1.7, 4.5 and 13.9 shall survive the termination of this
- - -------- ----- ----- --- ----
Agreement and the payment of all Loans.
SECTION 13.20. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
-----------------------
APPLICABLE LAW, THE BORROWER AND EACH OF THE BANKS HEREBY IRREVOCABLY WAIVE ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
-55-
IN WITNESS WHEREOF, the Company and each Bank have caused this
Agreement to be executed, as of the day and year first above written, by one of
its officers thereunto duly authorized.
GENERAL SIGNAL CORPORATION
By: /s/ Julian B. Twombly
---------------------
Vice President and Treasurer
High Ridge Park
Stamford, Connecticut 06904
Attention: Treasurer
Telecopier No.: (203) 329-4365
Amount of
Commitment
- - ----------
$20,000,000
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Edward F. McNulty
---------------------
Title: Managing Director
Lending Office for Loans
The Chase Manhattan Bank, N.A.
One Chase Plaza, 17th Floor
New York, New York 10081
Attn: Edward F. McNulty
Telecopy No.: (212) 552-1457
Amount of
Commitment
- - ----------
$20,000,000
CHEMICAL BANK
By: ____________________________
Title: Vice President
Lending Office for Loans
Chemical Bank
270 Park Avenue
New York, New York 10017
Attn: Lorraine Mohan
Telecopy No: (212) 270-1403
Amount of
Commitment
- - ----------
$20,000,000
NATIONSBANK, N.A. (CAROLINAS)
(FORMERLY NATIONSBANK OF NORTH
CAROLINA, N.A)
By: /s/ M.K. Vandenberg
-------------------
Title: Senior Vice President
Lending Office for Loans
NationsBank, N.A. (Carolinas)
(Formerly NationsBank of North
Carolina, N.A.)
NationsBank Plaza
Charlotte, North Carolina 28255
Attn: Carole Greene NCI-002-17-21
Telecopy No: (704) 386-8694
cc: Margaret K. Vandenberg
NationsBank, N.A. (Carolinas)
(Formerly NationsBank of North
Carolina, N.A.)
767 Fifth Avenue
New York, New York 10153
Telecopy No: (212) 751-6909
Amount of
Commitment
- - ----------
$20,000,000
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Samuel Moss
_______________________________
Title: Senior Vice President
Lending Office for Loans
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Jane Castles Deaver
Telecopy No: (404) 332-6898
Amount of
Commitment
- - ----------
$13,750,000
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ E.L. Gordon
---------------
Title: Authorized Signatory
Lending Office for Loans
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attn: E. Lindsay Gordan
Telecopy No: (212) 856-3599
Amount of
Commitment
- - ----------
$13,750,000
COMMERZBANK A.G.
By: /s/ Tom Ausfuhl
---------------
Title: Tom Ausfuhl, AVP
By: /s/ M. McCarthy
---------------
Title: Michael McCarthy, AT
Lending Office for Loans
CommerzBank A.G.
2 World Financial Center
New York, New York 10281-1050
Attn: Michael D. Hintz
Telecopy No: (212) 266-7235
Amount of
Commitment
- - ----------
$13,750,000
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ James W. Peterson
---------------------
Title: Vice President
Lending Office for Loans
The First National Bank of Chicago
153 West 51st Street
New York, New York 10019
Attn: James W. Peterson
Telecopy No: (212) 373-1388
Amount of
Commitment
- - ----------
$13,750,000
MARINE MIDLAND BANK
By: /s/ William M. Holland
______________________________
Title: Vice President
Lending Office for Loans
Marine Midland Bank
140 Broadway, 4th Floor
New York, New York 10005
Attn: Jeffry S. Dykes
Telecopy No: (212) 658-5109
Amount of
Commitment
- - ----------
$13,750,000
NATIONAL WESTMINSTER BANK Plc
By: /s/ Anne Marie Tone
-------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
Corporate and Institutional Finance
175 Water Street
New York, New York 10038-4924
Attn: Jordan Fragiacomo
Telecopy No: (212) 602-4500
Amount of
Commitment
- - ----------
$13,750,000
THE NORTHERN TRUST COMPANY
By: /s/ J.C. McCall, III
--------------------
Title: Second Vice President
Lending Office for Loans
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attn: J. Chip McCall, III
Telecopy No: (312) 444-3508
Amount of
Commitment
- - ----------
$13,750,000
THE SANWA BANK LIMITED
By: /s/ Stephen C. Small
--------------------
Title: Vice President
Lending Office for Loans
The Sanwa Bank Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Stephen C. Small
Telecopy No: (212) 754-2368
Amount of
Commitment
- - ----------
$13,750,000
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ R.M. Surdan, Jr.
--------------------
Title: Director
Lending Office for Loans
Shawmut Bank Connecticut, N.A.
One Landmark Square
Stamford, Connecticut 06904
Attn: Robert M. Surdan, Jr.
Telecopy No: (203) 358-6111
EXHIBIT A
REVOLVING NOTE
$, 199
The undersigned, for value received, promises to pay to the order of
on
or before the Revolver Expiration Date, as defined in the 364 Day Credit
Agreement referred to below, the principal sum of
Dollars or, if less, the aggregate unpaid
principal amount of all Revolving Loans made by the payee to the undersigned
pursuant to the 364 Day Credit Agreement (as hereinafter defined) as shown on
the schedule attached hereto (and any continuation thereof), together, from time
to time, with interest on the unpaid principal amount hereof from time to time
outstanding as provided in Article III of the 364 Day Credit Agreement
hereinafter referred to (but in no event higher than the maximum rate permitted
by applicable law).
Payments of both principal and interest are to be made in lawful money
of the United States of America for the account of the payee at the office of
The Chase Manhattan Bank, N.A., at One Chase Manhattan Plaza, New York, New York
10081 in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a 364 Day Credit Agreement dated as of June 1, 1995,
(and, all further amendments thereto, if any) among the undersigned and certain
banks (including the payee) to which 364 Day Credit Agreement reference is
hereby made for a statement of said terms and provisions, including those under
which this Note may be paid, or may be declared to be due and payable, prior to
its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By _________________________
Title_________________
-2-
Schedule Attached to Revolving Note dated , 199 of [Borrower]
payable to the order of
LOANS AND PRINCIPAL PAYMENTS
Beginning
and End
Eurodollar
or CD Amount of Unpaid
Amount of Interest Principal Principal Notation
Date Loan Made Period Repaid Balance Made By
- - ------ --------- ---------- --------- --------- --------
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
EXHIBIT B
---------
TERM NOTE
$ May 31,
1996
The undersigned, for value received, promises to pay to the order of the
principal sum of
Dollars payable on May 31, 1997 together, from time to time, with interest
on the unpaid principal amount hereof from time to time outstanding as provided
in Article III of the 364 Day Credit Agreement hereinafter referred to (but in
------- ---
no event higher than the maximum rate permitted by law).
Payments of both principal and interest are to be made in lawful money
of the United States of America for the account of the payee at the office of
The Chase Manhattan Bank, N.A., at One Chase Manhattan Plaza, New York, New York
10081 in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a 364 Day Credit Agreement dated as of June 1, 1995,
(and, all further amendments thereto, if any) among the undersigned and certain
banks (including the payee), to which 364 Day Credit Agreement reference is
hereby made for a statement of said terms and provisions, including those under
which this Note may be paid, or may be declared to be due and payable, prior to
its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By___________________________
Title
EXHIBIT C
Market Rate Promissory Note
$, 199
The undersigned, for value received, promises to pay to the order of
on
or before the Revolver Expiration Date, as defined in the 364 Day Credit
Agreement referred to below, the principal sum of Dollars or the equivalent in
any Alternate Currency shown on the schedule attached hereto or, if less, the
aggregate unpaid principal amount of all Market Rate Loans made by the payee to
the undersigned pursuant to the 364 Day Credit Agreement (as hereinafter
defined) as shown on the schedule attached hereto (and any continuation
thereof), together, from time to time, with interest on the unpaid principal
amount hereof from time to time outstanding as provided in Article III of the
364 Day Credit Agreement hereinafter referred to (but in no event higher than
the maximum rate permitted by applicable law).
Payments of both principal and interest are to be made in lawful money
of the United States of America or an Alternate Currency if so specified with
respect to any Market Rate Loan on the schedule attached hereto in immediately
available funds to, in the case of loans in Dollars the account specified by the
payee and, in the case of Alternate Currency Loans, the Alternate Currency
Payment Office.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a 364 Day Credit Agreement dated as of June 1, 1995,
(and, all further amendments thereto, if any) among the undersigned and certain
banks (including the payee) to which 364 Day Credit Agreement reference is
hereby made for a statement of said terms and provisions, including those under
which this Note may be paid, or may be declared to be due and payable, prior to
its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By___________________________
Title______________________
SCHEDULE ATTACHED TO MARKET RATE PROMISSORY NOTE
DATED AS OF FROM
[BORROWER] TO
____________________
ALTERNATE AMOUNT OF UNPAID
AMOUNT CURRENCY MATURITY PRINCIPAL PRINCIPAL
DATE OF LOAN (if applicable) DATE RATE REPAID BALANCE
- - ------ ------- -------------- -------- ---- --------- ---------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT D
FORM OF ATTORNEY'S OPINION OF COUNSEL TO BORROWER
Per Section 9.1.5
-------------
[Letterhead of Messrs. Cahill Gordon & Reindel]
Each of the Commercial Banking Institutions
listed on Schedule I hereto
Re: General Signal Corporation 364 Day Credit
Agreement, Dated as of June 1, 1995
--------------------------------------
Gentlemen:
We have acted as counsel to General Signal Corporation, a New York
corporation (the "Company"), in connection with the 364 Day Credit Agreement,
dated as of June 1, 1995 ("Agreement"), between you and the Company, covering
loans by you to Borrower to be evidenced by the Notes. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to them
in the 364 Day Credit Agreement.
We have examined originals, photocopies or conformed copies of such
records of the Company and its subsidiaries and such agreements, certificates of
public officials, certificates of officers and representatives of the Company
and its subsidiaries and such other documents as we have deemed relevant and
necessary as a basis for the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all copies submitted to us as
conformed or photocopies. As to various questions of fact material to the
opinions expressed herein, we have relied upon representations, statements or
certificates of public officials, officers and representatives of the Company
and its subsidiaries and others.
We are of the opinion that:
(1) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and in good
standing in the State of Connecticut.
(2) The execution, delivery and performance of the Agreement and the
Notes, and the borrowings by the Company pursuant thereto, are within the
Company's corporate powers and have been duly authorized by all necessary
corporate action.
(3) No governmental approval of the actions referred to in (2) above
is required.
-2-
(4) The actions referred to in (2) above do not contravene or conflict
with any provision of law, the Articles of Incorporation or By-laws of the
Company, or any material agreement, indenture or instrument which is
binding on or applicable to the Company of which we have knowledge.
(5) The Agreement is, and each of the Notes, when executed and
delivered for the consideration as contemplated by the Agreement will be,
the legally valid and binding obligation of the Company, enforceable
against Borrower in accordance with their respective terms, except that (i)
such enforceability may be limited by generally applicable bankruptcy,
insolvency, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (ii) no
opinion has been requested or is being rendered as to the availability of
equitable remedies, such as, for example, specific performance or
injunctive relief, which are within the discretion of courts of applicable
jurisdiction.
(6) The Company is not (i) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a public utility or a
public utility holding company as defined in the Public Utility Holding
Company Act of 1935.
Our opinion in (4) above is based, in part, upon the accuracy of the
representations contained in Section 13.6 of the Agreement.
------------
We are members of the Bar of the State of New York and we express no
opinion herein with respect to any law other than the laws of the State of New
York and the federal law of the United States.
Very truly yours,
EXHIBIT E
FORM OF DESIGNATION LETTER
, 199
To each of the Banks party to the
364 Day Credit Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to the 364 Day Credit Agreement dated as of June 1,
1995, among General Signal Corporation (the "Company") and the Banks named
therein (the "Credit Agreement"). Terms used herein and defined in the Credit
Agreement shall have the respective meanings ascribed to such terms in the
Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ("Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Bank's agreement
to extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Bank as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of .
2. The delivery of this Designation Letter, the borrowings under the
Credit Agreement, the execution and delivery of the Notes, and the
performance by the Designated Subsidiary of its obligations under the
Credit Agreement, the Designation Letter and the Notes, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, have received all necessary governmental approval (if any
shall be required), and do not and will not violate, contravene or conflict
in any material respect with any provision of law or of the charter or by-
laws of the Designated Subsidiary or of any judgment or any material
agreement or indenture binding upon or applicable to the Designated
Subsidiary the contravention of or conflict with which would materially
adversely affect the
-2-
consolidated financial condition or continued operations of the Designated
Subsidiary as a whole or materially impair the ability of the Designated
Subsidiary to perform any of its obligations hereunder.
This Designation Letter and the Credit Agreement, and the Notes when
duly executed and delivered by the Designated Subsidiary will be, legal,
valid and binding obligations of the Designated Subsidiary enforceable
against it in accordance with their respective terms, subject only to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of rights of creditors generally.
3. No litigation or arbitration proceedings are pending or, to the
knowledge of the Designated Subsidiary, threatened against the Designated
Subsidiary as to which there is a reasonable likelihood of an adverse
determination and which would reasonably be expected to have a material
adverse effect on the ability of the Designated Subsidiary to pay its debts
(including the Loans made to it under the Credit Agreement) as the same
become due and payable.
4. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required in connection with the execution, delivery or performance by
the Designated Subsidiary of this Designation Letter and the Credit
Agreement except for such authorizations, consents, approvals, licenses,
filings or registrations as have heretofore been made, obtained or effected
and are in full force and effect.
5. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Loan will
not be, (a) an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (b) a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Very truly yours,
GENERAL SIGNAL CORPORATION [THE DESIGNATED SUBSIDIARY]
By________________________ By_________________________
Title: Title:
EXHIBIT F
FORM OF ATTORNEY'S OPINION OF
COUNSEL TO A DESIGNATED SUBSIDIARY
Each of the Commercial Banking Institutions
listed on Schedule I hereto
Re: General Signal Corporation 364 Day Credit
Agreement Dated as of June 1, 1995
-----------------------------------------
Gentlemen:
We have acted as counsel to [Designated Subsidiary], a
____________________ corporation (the "Designated Subsidiary"), in connection
with the 364 Day Credit Agreement, dated as of June 1, 1995 ("Agreement"),
between you and the Company, covering loans by you to Borrower to be evidenced
by the Notes. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Agreement.
We have examined originals, photocopies or conformed copies of such
records of the Designated Subsidiary and such agreements, certificates of public
officials, certificates of officers and representatives of the Designated
Subsidiary and its subsidiaries and such other documents as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In
such examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all copies submitted to us as
conformed or photocopies. As to various questions of fact material to the
opinions expressed herein, we have relied upon representations, statements or
certificates of public officials, officers and representatives of the Designated
Subsidiary and others.
We are of the opinion that:
(1) The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of
_________________________________.
(2) The execution, delivery and performance by the Designated
Subsidiary of the Designation Letter, and the Notes to be executed by the
Designated Subsidiary, and the borrowings by the Designated Subsidiary
pursuant thereto, are within the Designated Subsidiary's corporate powers
and have been duly authorized by all necessary corporate action.
(3) No governmental approval of the action referred to in (2) above is
required.
(4) The actions referred to in (2) above to not contravene or conflict
with any provision of law, the
-2-
Charter or By-laws of the Designated Subsidiary, or any material agreement,
indenture or instrument which is binding on or applicable to the Designated
Subsidiary of which we have knowledge.
(5) The Designation Letter is, and each of the Notes to be executed by
the Designated Subsidiary, when executed and delivered for the
consideration as contemplated by the Agreement will be, the legally valid
and binding obligation of the Designated Subsidiary, enforceable against
Borrower in accordance with their respective terms, except that (i) such
enforceability may be limited by generally applicable bankruptcy,
insolvency, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (ii) no
opinion has been requested or is being rendered as to the availability of
equitable remedies, such as, for example, specific performance or
injunctive relief, which are within the discretion of courts of applicable
jurisdiction.
(6) The Company is not (i) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a public utility or a
public utility holding company has defined in the Public Utility Holding
Company Act of 1935.
Our opinion in (4) above is based, in part, upon the accuracy of the
representations contained in Section 13.6 of the agreement.
------------
Very truly yours,
FOUR YEAR CREDIT AGREEMENT
THIS FOUR YEAR CREDIT AGREEMENT, dated as of January 12, 1994 (the
"Agreement"), among GENERAL SIGNAL CORPORATION, a New York corporation (the
"Company"), each other Borrower hereunder and the undersigned commercial banking
institutions (herein called collectively "Banks").
W I T N E S S E T H:
WHEREAS, the Company desires by this Agreement (such and other
capitalized terms being used herein with the meanings respectively ascribed to
them in Article XII) to obtain commitments for revolving credit loans to be made
in an aggregate outstanding principal amount not to exceed $200,000,000 on or
prior to the Revolver Expiration Date and to provide for the making of Market
Rate Loans by the several Banks; and
WHEREAS, Banks are willing, severally and not jointly, upon the terms
and conditions hereinafter set forth, to extend such revolving loan commitments
and to make loans pursuant thereto and to make non-committed Market Rate Loans
for general working capital and other corporate purposes (including, without
limitation, acquisitions and the purchase of securities and assets, including
repurchases of the Company's securities);
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
COMMITMENTS OF BANKS; BORROWING PROCEDURES AND CONDITIONS
SECTION 1.1. Commitments. Subject to the terms and conditions of
-----------
this Agreement, each Bank severally agrees to make Revolving Loans hereunder to
any Borrower up to the maximum amounts specified in Section 1.1.4 as follows:
------- -----
SECTION 1.1.1. Revolving Loan Commitments. Loans on a revolving
--------------------------
basis (i.e., subject to the terms and conditions of this Agreement, Revolving
---
Loans may be borrowed, prepaid, repaid and re-borrowed) from time to time on or
before the Revolver Expiration Date to any Borrower equal to such Bank's
Percentage of the aggregate amount of such Revolving Loan (each herein called a
"Revolving Loan") except as each Bank's obligation to
-2-
make Revolving Loans may be created or modified as provided in this Section 1.1
------- ---
and Section 13.5.
------- ----
SECTION 1.1.2. Term Loan Commitments. A loan (herein called a "Term
---------------------
Loan") on the Revolver Expiration Date in such Bank's Percentage of such
aggregate amount as Borrower may request from all Banks, such aggregate amount
not to exceed the amount of the Credit.
SECTION 1.1.3. Domestic and Eurodollar Loan Commitments. Subject to
----------------------------------------
the terms and conditions of this Agreement, each Revolving Loan and each Term
Loan shall be either a Domestic Loan or a Eurodollar Loan, as Borrower shall
request in the relevant notice of borrowing pursuant to Section 1.2 or 5.4, it
------- --- ---
being understood that both Domestic Loans and Eurodollar Loans may be
outstanding at the same time. As to any Eurodollar Loan or Domestic Loan, each
Bank may, if it so elects (which election shall be made by such Bank in a manner
consistent with its undertaking contained in Section 5.7 and otherwise in good
------- ---
faith with a view to not increasing unnecessarily the obligations of any
Borrower hereunder), fulfill its aforesaid commitment by causing a foreign
branch or affiliate of such Bank (such foreign branch or affiliate or any U.S.
branch or affiliate from which a Bank funds a Eurodollar Loan herein called such
Bank's "Eurodollar Office") to make such Loan, provided that in such event for
the purposes of this Agreement such Eurodollar Loan shall be deemed to have been
made by such Bank, and the obligation of Borrower to repay such Eurodollar Loan
shall nevertheless be to such Bank and shall be deemed held by it, to the extent
of such Eurodollar Loan, for the account of such branch or affiliate.
SECTION 1.1.4. Commitment Limits. The aggregate principal amount of
-----------------
Revolving Loans and Term Loans which any Bank shall be committed to lend to
Borrower shall not at any one time exceed such Bank's Commitment; and the
aggregate amount of the Credit shall not at any one time exceed $200,000,000 (or
such greater or lesser amount as may be determined pursuant to this Section
-------
1.1). Except as may be otherwise required by Section 5.6, no Bank's obligation
- - --- ------- ---
to make any Revolving Loan or Term Loan shall, the ratability provisions of
Section 1.1.3 to the contrary notwithstanding, be affected by any other Bank's
- - ------- -----
failure or inability to make any Revolving Loan or Term Loan.
-3-
SECTION 1.1.5. Mandatory Reduction of the Commitments. On the
--------------------------------------
Revolver Expiration Date the Commitment of each Bank shall be reduced to zero;
provided that on the Revolver Expiration Date any Borrower may borrow a Term
- - --------
Loan pursuant to Section 1.2. The aggregate amount of the Commitments of the
------- ---
Banks once reduced pursuant to this Section 1.1.5 may not be reinstated.
------- -----
SECTION 1.1.6. Optional Pro Rata Reduction. The Company shall have
---------------------------
the right, at any time or from time to time, upon not less than three Business
Days' prior notice to the Depositary Bank (and the Depositary Bank shall
promptly notify each Bank of each termination or reduction) to terminate or
reduce, in whole or in part, on a pro rata basis the unused portions of the
respective Commitments of the Banks, provided that each partial reduction shall
--------
be in an aggregate principal amount of $5,000,000 or a multiple thereof. The
aggregate amount of the Commitments of the Banks once reduced pursuant to this
Section 1.1.6 may not be reinstated, except pursuant to Section 1.1.8.
- - ------- ----- ------- -----
SECTION 1.1.7. Optional Non-Pro Rata Reduction. The Company shall
-------------------------------
have the right, upon not less than five Business Days' prior notice to a Bank
(with a copy to the Depositary Bank), to terminate in whole such Bank's
Commitment; provided, that at the time such notice of termination is given (A)
--------
no Credit Suspension Event has occurred and is continuing and (B) either (i) the
Public Debt Rating of the Company is A-/A3 or higher or (ii) concurrently with
the termination of such Bank's Commitment a Commitment Increase becomes
effective pursuant to Section 1.1.8 in an amount not less than the Commitments
------- -----
concurrently being terminated pursuant to this Section 1.1.7. Such termination
------- -----
shall be effective, (A) with respect to such Bank's unused Commitment, on the
date set forth in such notice, provided, however, that such date shall be no
-------- -------
earlier than ten Business Days after receipt of such notice and (B) with respect
to each Loan outstanding to such Bank, on the last day of the then current
Interest Period relating to such Loan. Upon termination of a Bank's Commitment
under this Section 1.1.7, the Company will pay or cause to be paid all principal
------- -----
of, and interest accrued to the date of such payment on Loans owing to such Bank
and pay any facility fees or other fees payable to such Bank pursuant to Section
-------
3.2, and all other amounts payable to such Bank hereunder; and upon such
- - ---
payments, the obligations of such Bank hereunder shall, by the provisions
hereof, be released and discharged. The aggregate amount of the Commitments of
the
-4-
Banks once reduced pursuant to this Section 1.1.7, may not be reinstated, except
------- -----
pursuant to Section 1.1.8.
------- -----
SECTION 1.1.8. Increase in Commitments. The Company may at any time,
-----------------------
by notice to the Depositary Bank, propose that the aggregate of the Commitments
be increased in excess of the aggregate of the Commitments then in effect (a
"Commitment Increase"), effective as of a date prior to the Revolver Expiration
Date (the "Increase Date") as to which agreement is to be reached by an earlier
date specified in such notice (the "Commitment Date"); provided, however, that
-------- -------
(A) the minimum proposed Commitment Increase per notice shall be in an amount no
less than $5,000,000, (B) no Event of Default has occurred and is continuing and
(C) the warranties of the Company in Article VII shall be true and correct in
------- ---
all material respects with the same effect as if made on such Increase Date.
The Depositary Bank shall notify the Banks thereof promptly upon its receipt of
any such notice. If agreement is reached on or prior to the Commitment Date
with one or more Banks and Assuming Banks, if any, as to a Commitment Increase
(which may be less than specified in the applicable notice from the Company),
such agreement to be evidenced by a notice in reasonable detail from the Company
to the Depositary Bank on or prior to the Commitment Date, the Assuming Banks,
if any, shall become Banks hereunder as of the Increase Date and the Commitments
of such Banks and such Assuming Banks shall become or be, as the case may be, as
of the Increase Date the amounts specified in such notice (and the Depositary
Bank shall give notice thereof to the Banks (including such Assuming Banks));
provided, however, that:
- - -------- -------
(a) the Depositary Bank shall have received (with copies for each
Bank, including each Assuming Bank), on or prior to the Increase Date, an
opinion of counsel for the Company in substantially the form of Exhibit D
------- -
hereto and an opinion of counsel for each other Borrower substantially in
the form of Exhibit F hereto, dated such Increase Date, together with a
------- -
copy, certified on the Increase Date by the Secretary or an Assistant
Secretary of the pertinent Borrower, of the resolutions adopted by the
Board of Directors of the Company and each such other Borrower authorizing
such Commitment Increase;
(b) each such Assuming Bank shall have delivered, on or prior to the
Increase Date, to the Depositary Bank an appropriate Assumption Agreement;
and
-5-
(c) each Bank which proposes to increase its Commitment in connection
with such Commitment Increase shall have delivered, on or prior to the
Increase Date, confirmation in writing satisfactory to the Depositary Bank
as to its increased Commitment.
In the event that the Depositary Bank shall not have received notice from the
Company as to such agreement on or prior to the Commitment Date or the Company
shall, by notice to the Depositary Bank prior to the Increase Date, withdraw
such proposal or any of the actions provided for above in clauses (a) through
---
(c) of this Section 1.1.8. shall not have occurred by the Increase Date, such
- - --- ------- ------
proposal by the Company shall be deemed not to have been made. In such event,
the actions theretofore taken under clauses (a) through (c) of this Section
--- --- -------
1.1.8., shall be deemed to be of no effect and all the rights and obligations of
- - ------
the parties shall continue as if no such proposal had been made.
Following any Commitment Increase, the Borrower shall be deemed to
repay and reborrow each Revolving Loan having an Interest Period commencing
prior to such Increase Date on the date of the continuation or conversion of any
Revolving Loan that is a Fixed Rate Loan or the next Interest Date for any
Revolving Loan that is a Prime Rate Loan.
SECTION 1.2. Borrowing Procedures. Borrower shall provide The Chase
--------------------
Manhattan Bank, N.A. (herein called "Depositary Bank"), with notice (of which
Depositary Bank shall give prompt notice to each other Bank), by 10:00 a.m. New
York City time on the day of a proposed borrowing of Prime Rate Loans, at least
two Business Days prior to each proposed borrowing of CD Loans or at least three
Eurodollar Days prior to each proposed borrowing of Eurodollar Loans, as the
case may be, of the date and amount of such borrowing (except that if the Term
Loan borrowing shall comprise both Domestic and Eurodollar Loans, there shall be
a single notice at least three Eurodollar Days prior to such proposed
borrowing), the interest rate applicable thereto and, in the case of a
Eurodollar Loan or CD Loan, the duration of the initial Interest Period. Each
Bank shall provide Depositary Bank at its address set forth below its signature
hereto, by not later than 12:30 p.m., New York City time, on the date of a
proposed borrowing, with immediately available funds covering such Bank's
Percentage of the borrowing (or, in the case of the Term Loan borrowing, of any
excess of the aggregate Term Loan borrowing over the aggregate principal amount
of the Revolving Loans then outstanding plus accrued interest unpaid at the
Revolver
-6-
Expiration Date), and Depositary Bank shall pay over such immediately available
funds to Borrower upon each Bank's (including, without limitation, Depositary
Bank's) receipt of the documents required under Article IX with respect to such
------- --
borrowing. Each borrowing hereunder shall be in an aggregate amount that is an
integral multiple of $1,000,000 and at least $5,000,000.
SECTION 1.3. Market Rate Loans. (a) Notwithstanding any provisions
-----------------
of this Agreement to the contrary, any Bank may, from time to time, make Market
Rate Loans denominated in Dollars or in any Alternate Currency to any Borrower
bearing interest at such rate (hereinafter called such Bank's "Market Rate") of
interest as may be agreed upon by the Borrower and such Bank. Each Bank may in
its sole discretion negotiate with any Borrower concerning the offering of Loans
at a Market Rate (hereinafter called "Market Rate Loans"); provided, that
--------
nothing contained in this Agreement shall be deemed to require any Bank to offer
Market Rate Loans to any Borrower. In the event that any Borrower and any Bank
agree to the making of a Market Rate Loan, such Market Rate Loan shall be made
severally by such Bank directly to such Borrower without participation in such
Market Rate Loan by any other Bank. Such Market Rate Loan may be on such
further terms and conditions, including the right of the Borrower to prepay such
Market Rate Loan, as may be agreed upon by the Borrower and such Bank.
(b) Notwithstanding anything to the contrary contained in this
Agreement, all payments or prepayments made in respect of Market Rate Loans made
by a Bank pursuant to Section 1.3(a) shall be made directly to such Bank, and
------- ------
such Bank shall not be subject to the provisions of Section 6.3 or 6.4 in
------- --- ---
respect of any such payments so received.
(c) Upon the making of, or any repayment of principal of, any Market
Rate Loan, Borrower shall give the Depositary Bank prompt written, facsimile or
telephonic notice of such Market Rate Loan or repayment, which notice shall
state the Borrower, the principal amount of such Market Rate Loan or the amount
of such repayment, the maturity date of such Market Rate Loan (if applicable)
and, if such Market Rate Loan is an Alternate Currency Loan, the Alternate
Currency, the Dollar equivalent of the principal amount thereof and the
Alternate Currency Payment Office.
-7-
(d) Market Rate Loans shall not be subject to the limitations on the
aggregate amount of the Credit as provided in Section 1.1.4 and shall not reduce
------- -----
the amount of any Bank's unused Commitment.
(e) The Company shall designate for each Alternate Currency in which
any Borrower proposes to borrow an Alternate Currency Loan an office of a bank
at which the proceeds of Alternate Currency Loans denominated in such Alternate
Currency will be made available to Borrower and payments in such Alternate
Currency will be made (an "Alternate Currency Payment Office") by written notice
to Depositary Bank. Any Borrower and any Bank making a Market Rate Loan that is
an Alternate Currency Loan may agree upon a different Alternate Currency Payment
Office with respect to such Market Rate Loan. The Company or Borrower shall
provide the Depositary Bank with written notice of any such designation.
SECTION 1.4. Conditions to Each Loan. Notwithstanding any other
-----------------------
provision of this Agreement, no Revolving Loan or Term Loan shall be required to
be made hereunder if the conditions precedent to the making of such Loan
specified in Article IX have not been satisfied.
ARTICLE II
NOTES EVIDENCING LOANS
SECTION 2.1. Revolving Notes. The Revolving Loans of each Bank shall
---------------
be evidenced by a promissory note (herein called a "Revolving Note")
substantially in the form set forth in Exhibit A, with appropriate insertions,
------- -
payable to the order of such Bank on the Revolver Expiration Date in the
principal amount equal to the amount of such Bank's Commitment or in the
aggregate unpaid principal amount of all of its Revolving Loans, whichever is
less. The date and amount of each Revolving Loan made by such Bank and of each
repayment of principal thereof received by such Bank, and, in the case of each
Eurodollar Loan or CD Loan, the dates on which each Interest Period as to such
Loan shall begin and end, shall be recorded by such Bank on the schedule
attached to the Revolving Note issued to such Bank, and the aggregate unpaid
principal amount shown on such schedule shall be conclusive evidence absent
demonstrable error of the principal amount owing and unpaid on such Revolving
Note. The failure to record any such amount on such schedule shall not,
however, limit or otherwise affect the obligations of Borrower hereunder or
-8-
under any Note to repay the principal amount of the Loans together with all
interest accruing thereon or any other amount owing hereunder. Each Revolving
Loan shall be repaid on the Revolver Expiration Date, subject to the right of
Borrower to prepay such Revolving Loan and, prior to the Revolver Expiration
Date, to reborrow hereunder, in accordance with the provisions of this
Agreement.
SECTION 2.2. Term Notes. The Term Loan of each Bank shall be
----------
evidenced by a promissory note (herein called a "Term Note") substantially in
the form set forth in Exhibit B, with appropriate insertions, dated the Revolver
------- -
Expiration Date, payable to the order of such Bank in the original principal
amount of such Term Loan on the date which is one year after the Revolver
Expiration Date.
SECTION 2.3. Market Rate Notes. A Market Rate Loan made by any Bank
-----------------
to Borrower shall be evidenced by a promissory note (herein called a "Market
Rate Note") substantially in the form set forth in Exhibit C, with appropriate
------- -
insertions, and containing such other terms as the Borrower and such Bank may
agree.
ARTICLE III
INTEREST AND FEES
SECTION 3.1. Interest. Subject to the provisions of Section 4.4, (i)
-------- ------- ---
interest prior to maturity (whether by acceleration or otherwise) on each Prime
Rate Loan shall be payable in arrears on the last day of each March, June,
September and December and on the Revolver Expiration Date (herein, subject to
the requirements of Section 3.4, and including the final maturities, by
------- ---
acceleration or otherwise, of all of the Revolving Loans, called a "Prime Rate
Interest Date"), and (ii) interest prior to maturity on each Eurodollar Loan and
CD Loan shall be payable on the last day of the Interest Period for such Loan
(herein called a "Fixed Rate Interest Date"). Interest from and after maturity
(whether by acceleration or otherwise) on all Loans shall be payable on demand.
Interest on each Loan shall accrue from and including the Borrowing Date thereof
but shall not accrue on any principal amount of such Loan for the day on which
such principal amount is paid. For purposes of the foregoing computations, a
conversion of Eurodollar Loans to Domestic Loans or of Domestic Loans to
Eurodollar Loans, or a
-9-
conversion of CD Loans to Prime Rate Loans or of Prime Rate Loans to CD Loans,
or a continuation of Eurodollar Loans or CD Loans, pursuant to Article V shall
------- -
be deemed to comprise a payment of principal together with the making of a
concurrent Loan.
SECTION 3.1.1. Interest on Domestic Loans. Interest on the unpaid
--------------------------
portion of the principal amount of Domestic Loans shall accrue until paid with
respect to each Bank at the following rates per annum:
SECTION 3.1.1.1. Revolving Loans and Term Loans. (i) Prior to
------------------------------
maturity, at a rate equal to the Prime Rate, from time to time in effect, or the
CD Rate, as the Borrower has specified in its notice of borrowing pursuant to
Section 1.2 hereof; and (ii) after maturity, whether by acceleration or
- - ------- ---
otherwise, until paid, at a rate equal to the sum of the Prime Rate, in effect
from time to time, plus 1%.
SECTION 3.1.1.2. Changes in Prime Rate. The applicable interest rate
---------------------
on Prime Rate Loans shall change simultaneously with the effectiveness of each
change in the Prime Rate.
SECTION 3.1.2. Interest on Eurodollar Loans. Interest on the unpaid
----------------------------
principal amount of each Eurodollar Loan shall accrue at a rate per annum
(herein called the "Eurodollar Interest Rate") calculated for each Eurodollar
Period as follows:
SECTION 3.1.2.1. Revolving Loans and Term Loans. The Eurodollar
------------------------------
Interest Rate for each Eurodollar Period shall be a rate per annum which is
equal to the sum of the Eurodollar Margin in effect on the first day of the
applicable Eurodollar Period plus the rate obtained by dividing (i) the
arithmetic average (rounded to the nearest whole multiple of 1/16 of 1%) of the
rates per annum calculated by Depositary Bank on the basis of notification from
the Reference Banks at which Dollar deposits are offered to each Reference Bank
by prime banks in the London Interbank Eurodollar market in immediately
available funds at 11:00 a.m., London time, two Eurodollar Days before the
beginning of such Eurodollar Period for a period comparable to such Eurodollar
Period and in a principal amount comparable to the Eurodollar Loan of such
Reference Bank for such Eurodollar Period divided (and rounded to the nearest
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including without limitation
any marginal, emergency, supplemental, special or other reserves)
-10-
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D of the Board of Governors of
the Federal Reserve System (herein called "Regulation D") or any successor
category of liabilities under Regulation D.
SECTION 3.1.2.2. After Maturity. In the event of default by any
--------------
Borrower in the payment when due (whether by acceleration or otherwise) of part
or all of the principal amount of any Eurodollar Loan, such Borrower shall pay
interest on such unpaid amount from the date such amount shall have become due
to the date of actual payment, accruing on a daily basis, at a rate per annum
(i) in the event such default shall occur prior to the scheduled expiration of
the Eurodollar Period for such Loan, then during the remaining portion of such
Eurodollar Period, equal to 1% plus the Eurodollar Interest Rate for such
Eurodollar Period of such Loan during which such default occurred and (ii) after
the expiration of the Eurodollar Period for such Loan (or expiring concurrently
with such default) equal to the Prime Rate, from time to time in effect, plus
1%.
SECTION 3.1.3. Notice of CD Rate or Eurodollar Interest Rate. The CD
------------------------------- -------------
Rate for each CD Interest Period and the Eurodollar Interest Rate for each
Eurodollar Period shall be determined by Depositary Bank as provided herein and
notice thereof (including a calculation in reasonable detail) shall be given by
Depositary Bank promptly to each Bank and to the Company.
SECTION 3.1.4. Rate Determination Conclusive. Each calculation of
-----------------------------
the Eurodollar Interest Rate or the CD Rate, furnished to the Banks and to the
Company by Depositary Bank pursuant to Section 3.1.3 shall, unless objected to
------- -----
by any Bank or the Company within 30 days thereafter, be conclusive and binding
upon the parties hereto, in the absence of demonstrable error. If any one or
more of the Reference Banks is unable or for any reason fails to notify
Depositary Bank of the applicable interest rate on the day specified in Section
-------
3.1.2.1, in the case of a Eurodollar Loan, or in the definition of "CD Rate", in
- - -------
the case of a CD Loan, by 9:00 p.m., London time in the case of a Eurodollar
Loan and 4:00 p.m., New York City time in the case of a CD Loan, the applicable
Eurodollar Interest Rate or CD Rate, as the case may be, shall be determined on
the basis of the rate or rates of which Depositary Bank is given notice by the
remaining Reference Bank or Banks by such time. If none of the Reference Banks
is able to notify Depositary Bank of such a rate,
-11-
the provisions of clauses (a), (b) and (c) of Section 5.5 shall apply.
------- --- --- --- ------- ---
SECTION 3.1.5. Increased Cost of Fixed Rate Loans. Borrower agrees
----------------------------------
to pay directly to each Bank additional amounts as will compensate such Bank for
(i.e., make such Bank whole against, but only to the extent and for the duration
---
of) (i) any increase in the cost to such Bank of making or maintaining any
Eurodollar Loan or CD Loan hereunder, or of its obligation to make or maintain
any Eurodollar Loans or CD Loans hereunder, or (ii) any reduction in the amount
of any sum receivable by such Bank hereunder in respect of any Eurodollar Loan
or CD Loan, from time to time, by reason of:
(a) any reserve, special deposit, or similar requirements against
assets of, deposits with or for the account of or credit extended by, such
Bank which are imposed on, or deemed applicable by, such Bank, under or
pursuant to any law, treaty, rule, regulation (including, without
limitation, Regulation D) or requirement in effect on or after the date
hereof, any change therein, or any interpretation thereof by any
governmental authority charged with administration thereof or by any
central bank or other fiscal, monetary or other authority having
jurisdiction over the CD Loans, the Eurodollar Loans, such Bank, or a
Eurodollar Office which is a foreign branch or affiliate of such Bank, or
any requirement imposed by any central bank or such other authority,
whether or not having the force of law; or
(b) any change in (including the introduction of any new) applicable
law, treaty, rule, regulation or requirement or in the interpretation
thereof by any official authority, or the imposition of any requirement of
any central bank, whether or not having the force of law, which shall
subject such Bank or Borrower to any tax (other than taxes on net income or
net worth or franchise taxes), levy, impost, charge, fee, duty, deduction
or withholding of any kind whatsoever or change the taxation of a
Eurodollar Office which is a foreign branch or affiliate of such Bank with
respect to any Eurodollar Loan of such Bank hereunder and the interest
thereon (other than any change which affects, and to the extent that it
affects, the taxation of net income);
-12-
provided, however, that no Bank shall seek compensation for any such increase in
- - -------- -------
cost, or for any such reduction in the amount of any sum receivable, for any
period when any Eurodollar Loan or CD Loan shall be outstanding if such Bank
shall, on or prior to the date of making such Eurodollar Loan or CD Loan, have
notified the Borrower that it will not seek compensation therefor and will not
give notice thereof in accordance with the following paragraph of this Section;
provided, further, that the Borrower shall not be required to pay any additional
- - -------- -------
amount on account of any taxes imposed by the United States pursuant to this
Section 3.1.5. to any Bank which (i) is not entitled, on the date hereof (or, in
- - ------- ------
the case of an assignee of a Bank, on the date on which the assignment to it
became effective), to submit Form 1001 or Form 4224 (or any successor forms) so
as to meet its obligations to submit such a form pursuant to Section 13.18 or
------- -----
Section 13.5, or (ii) shall have failed to submit any form or other
- - ------- ----
certification which it was required to file pursuant to Section 13.18 or Section
------- ----- -------
13.5 and entitled to file under applicable law, or (iii) shall have filed any
- - ----
such form which is incorrect or incomplete in any material respect.
In any such event, each Bank so affected shall promptly notify Borrower and
Depositary Bank (which shall give prompt notice thereof to each other Bank)
thereof by telephone, confirmed in writing, stating the reasons therefor and the
additional amounts required fully to compensate such Bank for such increased
cost or reduced amount. Such additional amounts shall be payable on the Fixed
Rate Interest Date of each Eurodollar Loan and CD Loan so affected, and upon
demand if such notice is not given to Borrower prior to such Fixed Rate Interest
Date or if there are no Eurodollar Loans or CD Loans outstanding when such
notice is given, provided that such compensation will cover a period beginning
--------
not more than 90 days prior to such notice. A certificate as to any such
increased cost or reduced amount (including calculations, in reasonable detail,
showing how such Bank computed such cost or reduction) shall be submitted by
each affected Bank to Borrower and Depositary Bank (which shall promptly furnish
copies thereof to each other Bank) and shall, in the absence of demonstrable
error, be conclusive and binding.
SECTION 3.1.6. Interest on Market Rate Loans. The applicable
-----------------------------
interest rate, and the time of payment therefor, for each Market Rate Loan shall
be as agreed upon by Borrower and the Bank making such Market Rate Loan.
-13-
SECTION 3.1.7. Additional Costs. Without limiting the effect of the
----------------
foregoing provisions of Section 3.1.5 (but without duplication), the Borrower
------- -----
shall pay directly to each Bank from time to time on demand such amounts as such
Bank may determine to be necessary to compensate such Bank for any costs which
such Bank determines are attributable to any Revolving Loan outstanding
hereunder or to its obligation to make any Revolving Loans hereunder and to
other loans or commitments of this type in respect of any amount of capital
maintained by such Bank or any of its affiliates pursuant to any law or
regulation of any jurisdiction, or any change therein, or any interpretation,
guidelines, directive or request (whether or not having the force of law) of any
court or governmental or monetary authority, whether in effect on the date of
this Agreement or thereafter. Without limiting the foregoing, such compensation
shall include an amount equal to any reduction in return on assets or return on
equity to a level below that which such Bank could have achieved but for such
law, regulation, change, interpretation, directive or request; provided,
--------
however, that no Bank shall seek compensation for any such increase in cost, or
- - -------
for any such reduction in the amount of any sum receivable, in respect of any
Revolving Loan outstanding hereunder for any period when any Revolving Loan
shall be outstanding if such Bank shall, on or prior to the date of making such
Revolving Loan, have notified the Borrower that it will not seek compensation
therefor and will not give notice thereof in accordance with the following
paragraph of this Section.
In any such event, each Bank so affected shall promptly notify the Company and
Depositary Bank (which shall give prompt notice thereof to each other Bank)
thereof by telephone, confirmed in writing, stating the reasons therefor and the
additional amounts required fully to compensate such Bank for such increased
cost or reduced amount. Such additional amounts shall be payable on the next
Interest Date, or upon demand if there are no Loans outstanding when such notice
is given, provided that such compensation will cover a period beginning not more
--------
than 90 days prior to such notice. A certificate as to any such increased cost
or reduced amount (including calculations, in reasonable detail, showing how
such Bank computed such cost or reduction) shall be submitted by each affected
Bank to Borrower and Depositary Bank (which shall promptly furnish copies
thereof to each other Bank) and shall, in the absence of demonstrable error, be
conclusive and binding.
-14-
SECTION 3.1.8. Applicable Margin. The "Eurodollar Margin" or "CD
-----------------
Margin" means, as of any date, with respect to any Eurodollar Loan or CD Loan,
respectively, the applicable percentage set opposite the Public Debt Rating in
effect on such date:
Public Debt Rating Eurodollar Margin CD Margin
------------------ ----------------- ----------
Level 1:
AA-/Aa3
or higher 0.1875% 0.3125%
Level 2:
A-/A3 or higher, but
less than Level 1 0.25% 0.375%
Level 3:
BBB-/Baa3 or higher,
but less than Level 2 0.40% 0.525%
Level 4:
Less than BBB-/Baa3 0.75% 0.875%
Any adjustment to the Eurodollar Margin or CD Margin pursuant to this
Section 3.1.8 shall become effective for Interest Periods commencing after a
- - ------- -----
public announcement of a change in debt rating which requires an adjustment to
be made hereunder.
SECTION 3.2. Facility Fee. Borrower agrees to pay the Banks a
------------
facility fee for the period from and including January 12, 1994 to the Revolver
Expiration Date equal to the percentage per annum set forth for the applicable
Public Debt Rating in the table below on the daily average amount of the Credit;
provided that no facility fee shall be payable to any Bank on that portion of
- - --------
the Credit then borrowed as Prime Rate Loans as a result of a conversion of any
Fixed Rate Loan pursuant to Section 4.2, 5.5, 5.6 or 5.7.
------- --- --- --- ---
Public Debt Rating Facility Fee Percentage
------------------ -----------------------
Level 1:
AA-/Aa3 or higher 0.1250%
-15-
Public Debt Rating Facility Fee Percentage
------------------ -----------------------
Level 1:
AA-/Aa3 or higher 0.1250%
Level 2:
A-/A3 or higher, 0.15%
but less than Level 1
Level 3:
BBB-/Baa3 or higher, 0.25%
but less than Level 2
Level 4:
Less than BBB-/Baa3 0.40%
If Term Loans are borrowed on the Revolver Expiration Date, Borrower
agrees to pay the Banks a Facility Fee from and including the Revolver
Expiration Date to the date all Term Loans are repaid in full equal to 0.125% on
the average daily principal balance of the Term Loans; provided that no Facility
Fee shall be payable to any Bank on that portion of the Term Loans that are
Prime Rate Loans as a result of a conversion of any Fixed Rate Loan pursuant to
Section 4.2, 5.5, 5.6 or 5.7.
- - ------- --- --- --- ---
Such facility fee shall be payable on the last day of March, June,
September and December for the period then ending for which such facility fee
shall not have been theretofore paid (the first such payment to be made on March
31, 1994) and on the earlier of the Revolver Expiration Date or the date of
termination of the Credit for any period then ending for which such facility fee
shall not have been theretofore paid.
SECTION 3.3. Basis of Computation. Interest on Prime Rate Loans and
--------------------
the facility fee shall be computed for the actual number of days elapsed on the
basis of a year consisting of 365 or, if applicable, 366 days. Interest on
Fixed Rate Loans shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Interest on each Market Rate Loan shall
be computed on the same basis as Fixed Rate Loans unless otherwise agreed upon
by Borrower and the Bank making such Market Rate Loan.
SECTION 3.4. Extension of Due Date. If any payment of principal of,
---------------------
or interest on, any Domestic Loan or any payment of a facility fee falls due on
a day which is not a Business Day, then such due date shall be extended to the
next following Business Day. If any payment of principal of, or interest on,
any Eurodollar Loan falls due on a day which is not a Eurodollar
-16-
Day, then such due date shall be extended to the next Eurodollar Day, unless
such Eurodollar Day falls in another calendar month, in which case the date for
payment thereof shall be the preceding Eurodollar Day. If the date for any
payment of principal is extended pursuant to this Section 3.4, additional
------- ---
interest shall accrue and be payable for the period of such extension.
SECTION 3.5. Interest Rate Determination. Each Reference Bank agrees
---------------------------
to furnish to the Depositary Bank timely information for the purpose of
determining each Prime Rate, CD Rate or Eurodollar Rate, as applicable. If any
one or more of the Reference Banks shall not furnish such timely information to
the Depositary Bank for determination of any such interest rate, the Depositary
Bank shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Depositary Bank shall give
prompt notice to the Borrower and, if different, the Company and the Banks of
the applicable interest rate determined by the Depositary Bank and of the
applicable rate, if any, furnished by each Reference Bank for determining the
applicable interest rate under Section 3.1.
------- ---
SECTION 3.6. Currency Equivalents. For purposes of the provisions of
--------------------
Articles I, II, III, IV and V, (i) the equivalent in Dollars of any Alternate
- - -------- - -- --- -- -
Currency shall be determined by using the quoted spot rate at which the
principal office in New York City of the pertinent Bank or the principal office
in New York City of any affiliate of such Bank offers to exchange Dollars for
such Alternate Currency in New York City at 11:00 a.m. (New York City time), two
Business Days prior to the date on which such equivalent is to be determined,
(ii) the equivalent in any Alternate Currency of any other Alternate Currency
shall be determined by using the quoted spot rate at which such Bank's principal
office in New York City or the principal office in New York City of any
affiliate of such Bank offers to exchange such Alternate Currency for the
equivalent in Dollars of such other Alternate Currency in New York City at 11:00
a.m. (New York City time), two Business Days prior to the date on which such
equivalent is to be determined, and (iii) the equivalent in any Alternate
Currency of Dollars shall be determined by using the quoted spot rate at which
such Bank's principal office in New York City or the principal office in New
York City of any affiliate of such Bank offers to exchange such Alternate
Currency for Dollars in New York City at 11:00 a.m. (New York City time), two
Business Days prior to the date on which such equivalent is to be determined.
-17-
ARTICLE IV
PREPAYMENTS
SECTION 4.1. Prepayment upon Reduction or Termination of the Credit.
------------------------------------------------------
On the effective date of any reduction of the Commitments pursuant to Section
-------
1.1.6 Borrower shall prepay the amount, if any, by which the aggregate unpaid
- - -----
principal amount of all Revolving Notes exceeds the then reduced amount of the
Credit; provided, that on the later of the termination of the Commitments in
--------
their entirety or the maturity of the Term Loan, if made, each Borrower shall
pay in full all of its obligations hereunder and under the Notes accrued or
payable through such date (all such obligations being herein collectively called
the "Liabilities").
SECTION 4.2. Change in Law Rendering Fixed Rate Loans Unlawful. In
---------------------------------------- --------
the event that any change in (including the introduction of any new) applicable
laws or regulations, or in the interpretation thereof by any governmental or
other regulatory authority charged with the administration thereof, shall make
it unlawful for any Bank to make or continue any Eurodollar Loan or CD Loan to
be made or continued by it hereunder, the obligation of such Bank pursuant to
which such Eurodollar Loan or CD Loan would otherwise be made shall, upon the
happening of such event, forthwith terminate and such Bank shall, by telephonic
notice confirmed in writing to Borrower (with a copy to Depositary Bank, which
shall give prompt notice thereof to each other Bank), declare that such
obligation has so terminated. If any such change shall make it unlawful for
any Bank to maintain any Eurodollar Loan or CD Loan made by it hereunder, such
Bank shall, upon the happening of such event, notify Borrower thereof by
telephone, confirmed in writing (with a copy to Depositary Bank, which shall
give prompt notice thereof to each other Bank), stating the reasons therefor and
Borrower shall, at such time as required by law and no later than at the end of
the Interest Period of such Loan, convert such Eurodollar Loan or CD Loan into a
Prime Rate Loan by such Bank pursuant to the provisions (other than as to prior
notice, to the extent that compliance therewith would violate applicable law) of
Article V. If prior to the Revolver Expiration Date circumstances subsequently
- - ------- -
change so that any such Bank shall no longer be so affected, such Bank shall
reinstate its Commitment to make Eurodollar Loans or CD Loans upon written
notice to Borrower thereof (with a copy to Depositary Bank, which shall give
prompt notice thereof to each other Bank).
-18-
SECTION 4.3. Optional Prepayment. Borrower may from time to time,
-------------------
upon at least three Eurodollar Days' prior written notice to each Bank, prepay
the Loans in whole or in part, subject to the provisions of Sections 6.1 and
-------- ---
6.3, without premium or penalty other than as provided in Section 4.5; provided
- - --- ------- --- --------
however, that such optional prepayment shall, if it occurs before the Revolver
- - -------
Expiration Date, not reduce the Credit and any partial prepayment shall be in an
aggregate principal amount of at least $5,000,000 and an integral multiple of
$1,000,000.
SECTION 4.4. Interest on Principal Prepaid. Any prepayment of
-----------------------------
principal of the Loans shall include accrued interest to the date of prepayment
on the principal amount being prepaid. Upon any conversion of a Fixed Rate Loan
pursuant to Section 4.2, 5.6 or 5.7, Borrower shall on the date of such
------- --- --- ---
conversion pay accrued interest on such Fixed Rate Loan to such date. Payments
of interest on account of a conversion pursuant to Section 4.2, 5.6 or 5.7 shall
------- --- --- ---
be made directly to each Bank so affected.
SECTION 4.5. Prepayment Compensation. If (i) any optional or
-----------------------
mandatory payment or prepayment of a Eurodollar Loan or CD Loan (including,
without limitation, on account of a reduction or termination of the Credit) or
any conversion of a Eurodollar Loan or CD Loan pursuant to Article V or Section
------- - -------
4.2 is made on a day which is not the originally scheduled last day (designated
- - ---
in Borrower's notice pursuant to Section 1.2 or 5.4) of an Interest Period of
------- --- ---
such Loan, or (ii) the Borrower fails to borrow, continue, or convert another
Loan into, a Eurodollar Loan or CD Loan on the date for such borrowing,
continuation, or conversion specified in the Borrower's notice pursuant to
Section 1.2 or 5.4, Borrower shall pay directly to the Bank having made such
- - ------- --- ---
Loan or which would have made such Loan such amount or amounts as will fully
compensate such Bank for any net losses and expenses incurred by it (or any
branch or affiliate thereof) in connection with its repayment or reinvestment
in respect of funds borrowed by it or deposited with it for the purpose of
making or maintaining such Loan, it being understood that the amount of any such
-- ----- ----------
loss shall be determined with reference only to reduced earnings derived by such
Bank on, and shall not include any loss of, any principal amount of such funds
as the result of such Bank's reinvestment thereof. Any such payment by Borrower
to any Bank shall be payable on demand made by such Bank (accompanied by a
calculation in reasonable detail of such
-19-
payment which, in the absence of demonstrable error, shall be conclusive and
binding as to the amount thereof).
ARTICLE V
SPECIAL PROVISIONS WITH RESPECT TO
CONTINUATION OF FIXED RATE LOANS AND
CONVERSION OF LOANS BETWEEN
EURODOLLARS AND DOMESTIC DOLLARS
SECTION 5.1. Continuation of Eurodollar Loans. Borrower may elect to
--------------------------------
continue a group of Eurodollar Loans from any Eurodollar Period into a
subsequent Eurodollar Period, provided that such continuation shall take place
--------
on the last day of the prior Eurodollar Period (herein, in such case, called a
"Continuation Date"). Such election shall be subject to the notice requirements
of Section 5.4. If no such election is made in compliance with the requirements
------- ---
hereof and Borrower does not pay in full the outstanding principal amount of any
Eurodollar Loan on the last day of the Eurodollar Period thereof, such
Eurodollar Loan shall automatically, without any notice from or to Borrower, be
converted into a Prime Rate Loan in accordance with the other provisions of this
Article V (other than as to prior notice) at the end of such Eurodollar Period.
- - ------- -
SECTION 5.1.1. Continuation of CD Loans. Borrower may elect to
------------------------
continue a group of CD Loans from any CD Interest Period into a subsequent CD
Interest Period, provided that such continuation shall take place on the last
--------
day of the prior CD Interest Period (herein, in such case, called a
"Continuation Date"). Such election shall be subject to the notice requirements
of Section 5.4. If no such election is made in compliance with the requirements
------- ---
hereof and Borrower does not pay in full the outstanding principal amount of any
CD Loan on the last day of the CD Interest Period thereof, such CD Loan shall
automatically, without any notice from or to Borrower, be converted into a Prime
Rate Loan in accordance with the other provisions of this Article V (other than
------- -
as to prior notice) at the end of such CD Interest Period.
SECTION 5.2. Conversion. Borrower may elect (i) on any Eurodollar
----------
Day to convert any outstanding Domestic Loans into Eurodollar Loans or any
outstanding Eurodollar Loans into Domestic Loans and (ii) on any Business Day to
convert any outstanding CD Loans into Prime Rate Loans or any outstanding Prime
Rate Loans into CD Loans (herein, in such case, called a
-20-
"Conversion Date"), it being understood that any such conversion of a Eurodollar
-- ----- ----------
Loan or CD Loan into another type of Loan on a day other than the last day of
the Eurodollar Period or CD Interest Period, as the case may be, of such Loan
shall be subject to the applicable provisions of Section 4.5. Such election
------- ---
shall be subject to the notice requirements of Section 5.4.
------- ---
SECTION 5.3. Restrictions on Borrower's Continuation and Conversion
--------------------------------------- --------------
Rights. Notwithstanding any other provisions of this Article V, Banks shall not
- - ------ ------- -
be obligated to effect (i) any continuation or conversion under this Article V,
------- -
so long as any Event of Default or Credit Suspension Event has occurred and
remains continuing or (ii) any continuation of any type of Loan outstanding or
any conversion of any outstanding type of Loan into another type of Loan so long
as any of the circumstances described in Sections 4.2, 5.5, 5.6 and 5.7
-------- --- --- --- ---
affecting such continuation or conversion have occurred and remain continuing.
SECTION 5.4. Notice of Continuations and Conversions. Except as
---------------------------------------
otherwise provided in this Agreement, Borrower shall, at least three Eurodollar
Days prior to any Continuation Date or Conversion Date involving a Eurodollar
Loan, or at least two Business Days prior to any Continuation Date involving a
CD Loan or conversion of a CD Loan into a Prime Rate Loan or Prime Rate Loan
into a CD Loan, give notice to Depositary Bank (which shall give prompt notice
thereof to each other Bank) of such proposed continuation or conversion, and in
the case of any Eurodollar Loans or CD Loans to be continued or to be made by
conversion on such date, as the case may be, the duration of the subsequent
Eurodollar Period or CD Interest Period thereof.
SECTION 5.5. Interest Rates Unascertainable. In the event that,
------------------------------
prior to any Borrowing Date of any group of Eurodollar Loans or CD Loans, Banks
having, in the aggregate, a Percentage of 66 2/3% or more shall have determined
(which determination shall be conclusive and binding on all parties hereto) that
(i) with respect to Eurodollar Loans and CD Loans, the circumstances described
in the third sentence of Section 3.1.4 have occurred, or that, (ii) by reason of
----- -------- -------------
other circumstances affecting the London interbank eurodollar market or
certificate of deposit market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Interest Rate or CD Rate applicable to such group of
Eurodollar Loans or CD Loans, (a) such Banks shall give notice of such
determination promptly (and in any event within three Eurodollar Days after
making such
-21-
determination with respect to Eurodollar Loans and within two Business Days
after making such determination with respect to CD Loans) to the other parties
hereto and, (b) with respect to any new Eurodollar Loans or CD Loans, as the
case may be, Borrower's request for Eurodollar Loans or CD Loans, as the case
may be, shall be deemed a request for Prime Rate Loans and (c) with respect to
outstanding Eurodollar Loans or CD Loans, as the case may be, to be continued on
such Borrowing Date, such Loans shall be converted into Prime Rate Loans in
accordance with the provisions of this Article V on such Borrowing Date,
------- -
notwithstanding any failure of Borrower to comply with the notice provisions of
Section 1.2 or 5.4, as the case may be.
- - ------- --- ---
SECTION 5.6. Bank Unable to Make Eurodollar Loan. In the event that,
-----------------------------------
prior to any Borrowing Date of any Eurodollar Loan as Borrower shall request in
its relevant notice of borrowing pursuant to Section 1.2 or 5.4, any Bank
------- --- ---
requested to make or continue such Eurodollar Loan shall (i) have determined
(which determination if made in good faith shall be conclusive and binding on
all parties hereto) that Dollar deposits in the relevant amount and for the
relevant Eurodollar Period for such Eurodollar Loan are not available to such
Bank in the London interbank eurodollar market by reason of law or otherwise, or
(ii) learn of any change in (including the introduction of any new) applicable
laws or regulations, or in the interpretation thereof by any governmental or
other regulatory authority charged with the administration thereof, which shall
make it unlawful for such Bank to make or continue such Eurodollar Loan for the
proposed duration thereof, such Bank shall promptly give notice of such
determination to Borrower (with a copy to Depositary Bank, which shall give
prompt notice thereof to each other Bank) and (a) with respect to any new
Eurodollar Loan, Borrower's request for such Loan shall be deemed a request for
a Prime Rate Loan, and (b) with respect to any outstanding Eurodollar Loan to be
continued on such Borrowing Date, such Loan shall be converted into a Prime Rate
Loan in accordance with the provisions of this Article V on such Borrowing
------- -
Date, notwithstanding any failure of Borrower to comply with the notice
provisions of Section 1.2 or 5.4, as the case may be.
------- --- ---
SECTION 5.7. Conversions Affecting Some Banks. Within ten days of
--------------------------------
notification by any Bank that any of the circumstances described in Section
-------
3.1.5 or 3.1.7 shall have occurred and remain continuing with respect to any
- - ----- -----
outstanding Eurodollar Loan or CD Loan made by such Bank, Borrower may elect to
convert such Eurodollar Loan or CD Loan to a Prime Rate Loan.
-22-
Borrower shall, at least three Eurodollar Days prior to the proposed Conversion
Date in respect of such Eurodollar Loan or two Business Days prior to the
proposed Conversion Date in respect of such CD Loan, give notice of such
conversion to Depositary Bank (which shall give prompt notice to each other
Bank). The exemption from the ratability provisions of Section 1.1.3 shall
------- -----
apply to all Banks or Loans affected by conversions made pursuant to this
Section or Section 4.2 or 5.6 and so long as any of the circumstances which
- - ------- ------- --- ---
permitted or required such conversion shall remain continuing. Any Bank so
affected shall use all commercially reasonable efforts to cease being so
affected, it being understood that such obligation shall in no way reduce the
-- ----- ----------
rights of Banks hereunder nor require any Bank to take any action which would
have a material adverse effect on such Bank, to make any Eurodollar Loan at any
office located in the United States or to fund any Eurodollar Loan in domestic
Dollars.
ARTICLE VI
MAKING AND PRORATION OF PAYMENTS; OFFSET
SECTION 6.1. Making of Payments. All payments made by Borrower
------------------
hereunder shall be in immediately available funds and, except for payments
pursuant to Sections 1.3(b), 3.1.5, 3.1.7 and 4.5 and as otherwise indicated in
-------- ------ ----- ----- ---
Sections 3.2 and 4.4, shall be made to Depositary Bank at its address set forth
- - -------- --- ---
below its signature hereto not later than 12:30 p.m., New York City time, on the
date due; funds received after that hour shall be deemed to have been received
by Depositary Bank on the next Eurodollar Day or Business Day, as the case may
be. Depositary Bank shall remit in immediately available funds to each Bank or
other holder its share of all such payments received by Depositary Bank for the
account of such Bank or holder, as determined pursuant to Section 6.3, promptly
------- ---
(and, in the event of any payment received prior to 12:30 p.m., New York City
time, on any Business Day, on such Business Day).
SECTION 6.2. Payment on Revolver Expiration Date. Any Borrower may
-----------------------------------
effect payment of all or part of the Revolving Loans, together with accrued
interest thereon, on the Revolver Expiration Date by directing Depositary Bank,
in Borrower's notice of its proposed borrowing of the Term Loans pursuant to
Section 1.2, to apply the proceeds of the Term Loans to the extent necessary to
- - ------- ---
the concurrent payment of principal of and
-23-
interest on the Revolving Loans; provided, that the aggregate principal amount
--------
of the Term Loan shall not exceed the amount of the Credit.
SECTION 6.3. Allocation of Payments. All payments of principal of
----------------------
the Revolving Notes and Term Notes by Borrower shall be for the account of the
holders of the Revolving Notes and Term Notes pro rata according to the
respective unpaid principal amounts of the Revolving Notes and Term Notes held
by them, and shall be applied by each such holder (except as Borrower may, in a
manner not inconsistent with other terms and provisions hereof, otherwise elect
in a notice, furnished on or prior to the date of such payment, to Depositary
Bank, which shall give prompt notice thereof to each other Bank) first to its
then outstanding Domestic Loans other than Loans made by conversions pursuant to
Section 4.2, 5.6 or 5.7 (herein called an "Equivalent Domestic Loan"), second to
- - ------- --- --- ---
any then outstanding Equivalent Domestic Loans, and finally to its then
outstanding Eurodollar Loans. (For purposes of this Section, any Equivalent
Domestic Loan shall be deemed an ordinary Domestic Loan to the extent that the
Eurodollar Loan from which such Equivalent Domestic Loan was converted would
otherwise have been converted to any ordinary Domestic Loan.)
All payments of interest on Domestic Loans hereunder, except Equivalent Domestic
Loans made by an affected Bank pursuant to Section 4.2, 5.6 or 5.7, shall be for
------- --- --- ---
the account of the holders of the Revolving Notes and Term Notes pro rata
according to the respective unpaid principal amounts of Domestic Loans evidenced
by the Revolving Notes and Term Notes held by them; all payments of interest on
Equivalent Domestic Loans made by an affected Bank pursuant to Section 4.2, 5.6
------- --- ---
or 5.7 shall be for the account of the holders of the Revolving Notes and Term
---
Notes pro rata according to the respective unpaid principal amounts of
Equivalent Domestic Loans evidenced by the Revolving Notes and Term Notes held
by them; and all payments of interest on Eurodollar Loans hereunder, except
those pursuant to Section 4.4 on account of a conversion pursuant to Section
------- --- -------
4.2, 5.6 or 5.7, shall be for the account of the holders of the Revolving Notes
- - --- --- ---
and Term Notes pro rata according to the respective unpaid principal amounts of
Eurodollar Loans evidenced by the Revolving Notes and Term Notes held by them.
All payments of facility fees shall be for the account of all Banks pro rata
according to the daily average amount of each Bank's Commitment, provided that
any reduction of facility fees
-24-
in respect of Equivalent Domestic Loans that are Prime Rate Loans shall be borne
pro rata by each affected Bank under Section 4.2, 5.5, 5.6 or 5.7.
------- --- --- --- ---
Notwithstanding any other provision of this Section 6.3 payments of
------- ---
principal, interest, facility fees and other obligations hereunder to any Bank
upon termination of its Commitment pursuant to Section 1.1 or pursuant to
------- ---
Section 3.1.7 shall be solely for the account of such Bank.
- - ------- -----
SECTION 6.4. Proration of Other Recoveries. If any Bank or other
-----------------------------
holder of a Revolving Note or Term Note shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or
otherwise), other than a prepayment compensation pursuant to Section 4.5, on
------- ---
account of principal of or interest on any Revolving Note or Term Note, or
facility fees, in excess of its pro rata share, as determined pursuant to
Section 6.3, of payments and other recoveries obtained by all Banks or other
- - ------- ---
holders on account of principal of and interest on Revolving Notes or Term Notes
then held by them, or facility fees, such Bank or other holder shall purchase
from the other Banks or holders such participation in the Revolving Notes or
Term Notes held by them, or shall make such other payments, as shall be
necessary to cause such purchasing Bank or other holder to share the excess
payment or other recovery ratably with each of them; provided, however, that if
-------- -------
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
SECTION 6.5. Offset. In addition to and not in limitation of all
------
rights of offset that any Bank or other holder of a Note may have under
applicable law, each Bank or other holder of a Note shall, upon the occurrence
of any Event of Default described in Section 10.1.3 or any Credit Suspension
------- ------
Event which would constitute such an Event of Default described in Section
-------
10.1.3, have the right, subject to Section 6.4, to appropriate and apply to the
- - ------ ------- ---
payment of such Note any and all balances, credits, deposits, accounts or moneys
of Borrower then or thereafter with such Bank or other holder. If, in the
aggregate, the recovery by the Banks by offset, under applicable law, or
otherwise shall exceed the obligations of Borrower under the Notes and
hereunder, any Bank receiving such an excess agrees to promptly restore the same
to Borrower.
-25-
ARTICLE VII
WARRANTIES
To induce Banks to grant the Credit and to make Loans hereunder, the
Company warrants to Banks that:
SECTION 7.1. Organization, etc. The Company is a corporation duly
-----------------
existing and in good standing under the laws of the State of New York; and each
Significant Subsidiary is a corporation duly existing and in good standing under
the laws of the jurisdiction of its respective incorporation.
SECTION 7.2. Authorization; No Conflict. The execution and delivery
--------------------------
of this Agreement, the borrowings hereunder, the execution and delivery of the
Notes, and the performance by the Company of its obligations under this
Agreement and the Notes, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, have received all necessary
governmental approval (if any shall be required), and do not and will not
violate, contravene or conflict in any material respect with any provision of
law or of the charter or by-laws of the Company or of any judgment or any
material agreement or indenture binding upon or applicable to the Company the
contravention of or conflict with which would materially adversely effect the
consolidated financial condition or continued operations of the Company and its
Subsidiaries as a whole or materially impair the ability of the Company to
perform any of its obligations hereunder.
SECTION 7.3. Validity and Binding Nature. This Agreement is, and the
---------------------------
Notes when duly executed and delivered will be, legal, valid and binding
obligations of the Company enforceable against it in accordance with their
respective terms, subject only to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of rights of creditors
generally.
SECTION 7.4. Financial Statements. The Company's audited
--------------------
consolidated financial statements as at December 31, 1992 and unaudited
consolidated financial statements as at September 30, 1993, copies of which have
been furnished to each Bank, have been prepared in conformity with GAAP applied
on a basis consistent with that of the preceding fiscal year or nine-month
period, as the case may be, and fairly present the financial condition of the
Company and its Consolidated
-26-
Subsidiaries as at such date and the results of their operations for the period
covered by such statements subject, in the case of any unaudited interim
financial statements, to changes resulting from normal year-end adjustments.
SECTION 7.5. Litigation. No litigation or arbitration proceedings
----------
are pending or, to the knowledge of the Company, threatened against the Company
or any Significant Subsidiary as to which there is a reasonable likelihood of an
adverse determination and which would reasonably be expected to have a material
adverse effect on the consolidated financial condition or continued operations
of the Company and its Subsidiaries as a whole or materially impair the ability
of the Company to perform any of its obligations hereunder.
SECTION 7.6. Liens. None of the assets of the Company is subject to
-----
any mortgage, pledge, title retention lien, or other lien, encumbrance or
security interest which is not permitted by Section 8.6.
------- ---
SECTION 7.7. ERISA. Neither the Company nor any Significant
-----
Subsidiary has incurred any liability to the Pension Benefit Guaranty
Corporation in connection with any employee benefit plan which could reasonably
be expected to materially adversely affect the consolidated financial condition
or continued operations of the Company and its Subsidiaries as a whole or
materially impair the ability of the Company to perform any of its obligations
hereunder.
SECTION 7.8. Investment Company Act. The Company is not an
----------------------
"investment company," or a company "controlled" by or "controlling" an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 7.9. Public Utility Holding Company Act. Neither the Company
----------------------------------
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 7.10. Regulations G, U, and X. The Company will not use the
-----------------------
proceeds of the Loans in violation of Regulations G, U, and X of the Board of
Governors of the Federal Reserve System.
-27-
ARTICLE VIII
COVENANTS
Until the expiration or termination of the Credit and thereafter until
all Liabilities are paid in full, the Company agrees that, unless at any time
Banks having, in the aggregate, a Percentage of 66 2/3% or more shall otherwise
expressly consent in writing, it will:
SECTION 8.1. Reports, Certificates and Other Information.
------------------------------- -----------
Furnish to each Bank:
SECTION 8.1.1. Audit Report. Within 120 days after each fiscal year
------------
of the Company, a copy of an annual audit report of the Company and its
Subsidiaries prepared on a consolidated basis and in conformity with GAAP, duly
certified by, and containing an opinion of, Ernst & Young or other independent
certified public accountants of recognized national standing selected by the
Company, which opinion shall be unqualified (excepting any qualification
relating to any change in the application of GAAP concurred in by such
accountants). The requirements of this Section (other than the requirement that
any opinion shall be unqualified as aforesaid) shall be satisfied by the
Company's furnishing each Bank with a copy of its annual report on Form 10-K
filed with the Securities and Exchange Commission in accordance with the
instructions therefor.
SECTION 8.1.2. Interim Reports. Within 60 days after each quarter
---------------
(except the last quarter) of each fiscal year of the Company, a copy of an
unaudited financial statement of the Company and its Subsidiaries prepared on a
consolidated basis and in conformity with GAAP applied on a basis consistent
with the most recent audit report referred to in Section 8.1.1, signed by a
------- -----
proper accounting officer of the Company and consisting of at least a balance
sheet as at the close of such quarter, a statement of earnings for such quarter
and for the period from the beginning of such fiscal year to the close of such
quarter and a statement of cash flows for the period from the beginning of such
fiscal year to the close of such quarter. The requirements of this Section
shall be satisfied by the Company's furnishing each Bank with a copy of its
quarterly report on Form 10-Q filed with the Securities and Exchange Commission
in accordance with the instructions therefor.
-28-
SECTION 8.1.3. Certificates. Contemporaneously with the furnishing
------------
of a copy of each annual audit report and of each quarterly statement provided
for in Section 8.1.1 or 8.1.2, a certificate dated the date of such annual
------- ----- -----
report or such quarterly statement and signed by the Chairman of the Board, any
Senior Vice President, the chief financial officer or the Treasurer of Borrower
to the effect that no Event of Default or Credit Suspension Event has occurred
and is continuing or, if there is any such event, describing it and the steps,
if any, being taken to cure it.
SECTION 8.1.4. Reports to SEC and to Shareholders. Copies of each
----------------------------------
report on Form 10-K, 10-Q or 8-K (excluding exhibits thereto) made by any
Borrower with the Securities and Exchange Commission, and of each annual report,
quarterly report, special report or proxy statement from the Company to its
shareholders generally, promptly after the filing or making thereof.
SECTION 8.1.5. Notice of Default or Litigation. Forthwith upon
-------------------------------
learning of the occurrence of an Event of Default, or a Credit Suspension Event,
or of the institution of, or any adverse determination in, any litigation or
arbitration proceeding as to which there is a reasonable likelihood of an
adverse determination and which would reasonably be expected to have a material
adverse effect on the consolidated financial condition or continued operations
of the Company and its Subsidiaries as a whole or materially impair the ability
of the Company to perform any of its obligations hereunder, written notice
thereof describing the same and the steps being taken by the Company or the
Subsidiary affected with respect thereto.
SECTION 8.1.6. ERISA. As soon as practicable after the occurrence of
-----
any Reportable Event (as defined in the Employee Retirement Income Security Act
of 1974), which is material to the Company and its Significant Subsidiaries
taken as a whole, in connection with any employee pension benefit plan
maintained by the Company or any Significant Subsidiary, written notice thereof
describing the same.
SECTION 8.1.7. Other Information. From time to time such other
-----------------
information concerning the Company and its Subsidiaries as any Bank may
reasonably request.
SECTION 8.2. Books, Records and Inspections. Maintain, and cause
------------------------------
each Subsidiary to maintain, proper books and
-29-
records in the form customarily employed by them; permit, and cause each
Subsidiary to permit, upon reasonable notice and during normal business hours,
access by any Bank to the books and records of the Company and of any
Subsidiary; and permit, and cause each Subsidiary to permit, any Bank to inspect
upon reasonable notice and during normal business hours the properties and
operations of the Company and of any Subsidiary.
SECTION 8.3. Insurance. Maintain, and cause each Significant
---------
Subsidiary to maintain, such insurance as may be required by law and such other
insurance to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated.
SECTION 8.4. Taxes and Liabilities. Pay, and cause each Significant
---------------------
Subsidiary to pay, when due all taxes, assessments and other liabilities except
as contested in good faith and by appropriate proceedings.
SECTION 8.5. Purchase or Redemption of the Company's Securities;
--------------------------------------- -----------
Dividend Restrictions. Not purchase, prepay or redeem, or permit any Subsidiary
- - ---------------------
to purchase, any shares of the capital stock of the Company, not declare or pay
any dividends thereon (other than stock dividends), not make any distribution to
shareholders or set aside any funds for any such purpose, not prepay, and not
permit any Subsidiary to purchase or prepay, any subordinated indebtedness for
borrowed money of the Company if, after giving effect thereto, any Event of
Default or Credit Suspension Event shall have occurred and be continuing;
provided that the foregoing shall not prevent the payment of any dividend or
- - --------
distribution within 60 days of the declaration thereof if, on the date of such
declaration, such dividend or distribution would have complied with this Section
-------
8.5.
- - ---
SECTION 8.6. Liens. If the ratio of Consolidated Debt to
-----
Consolidated Capitalization of the Company is more than 0.35:1, not create,
incur, assume or suffer to exist any mortgage, pledge, lien or other encumbrance
of any kind (including the charge upon property purchased under conditional
sales or other title retention agreements) upon, or any security interest in,
any of its property or assets, whether now owned or hereafter acquired, except
(i) liens for taxes, assessments and governmental charges not delinquent or
being contested in good faith or by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP, (ii) existing
liens securing indebtedness, including mortgage
-30-
debt, as reflected in the Company's consolidated balance sheet as of September
30, 1993, (iii) liens arising in favor of the United States Government, any
state or local government or any subdivision or agency thereof in the ordinary
course of the Company's business with any of the foregoing for advances,
progress payments or partial prepayments, (iv) liens in connection with workers'
compensation, unemployment insurance or social security obligations, (v) liens
or deposits or pledges to secure bids, tenders, contracts (other than contracts
for repayment of borrowed money), leases, statutory obligations, surety and
appeal bonds, indemnity, performance and similar bonds and other obligations of
like nature arising in the ordinary course of business, (vi) mechanics',
workmen's, materialmen's, carriers', warehousemen's or other like liens arising
in the ordinary course of business with respect to obligations which are not due
or which are being contested in good faith or by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP, (vii)
liens arising out of judgments or awards with respect to which appeals are being
prosecuted, levy of execution pending such appeal having been stayed, (viii)
rights-of-way, easements, water rights, sewage and drainage rights, zoning or
use regulations or similar defects in title which do not materially impair the
use of any property for the purposes for which held, (ix) the lien or any right
or privilege reserved in leases for rent to secure compliance with the terms of
any lease, but not including any lien arising from a violation of any lease
provision other than one relating to conditional assignment of rents, (x) liens
of attachment not exceeding in the aggregate $15,000,000 outstanding at any one
time, (xi) liens of attachment exceeding in the aggregate $15,000,000 (but not
exceeding in the aggregate $150,000,000) outstanding at any one time, provided,
however, that any such liens shall be released, discharged or vacated by bonding
or otherwise within 30 days, (xii) deposits to obtain releases of liens imposed
by law and permitted hereunder, (xiii) any mortgage, encumbrance or other lien
upon, or security interest in, any property or asset (whether real, personal or
mixed) hereafter acquired created contemporaneously with or within 365 days
after such acquisition to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any mortgage,
encumbrance or lien upon, or security interest in, any such property or asset
hereafter acquired existing at the time of such acquisition, or the acquisition
of any such property or asset subject to any mortgage, encumbrance or other lien
or security interest without the assumption thereof (provided, at any one time
--------
that each such mortgage, encumbrance,
-31-
lien or security interest shall attach only to the property or asset so acquired
and improvements thereon), (xiv) other liens which do not, in the aggregate,
relate to or secure obligations exceeding 5% of Consolidated Capitalization,
(xv) any encumbrance or lien upon margin stock and (xvi) any renewal,
modification, extension, refinancing or replacement of any mortgage,
encumbrance, lien or security interest permitted under clause (ii), (xiii) or
(xiv), provided that the amount of indebtedness secured thereby is not increased
and that any such mortgage, encumbrance, lien, or security interest is limited
to all or part of the same property and any fixed improvement thereon; provided,
--------
that nothing in this Section 8.6 shall be construed as prohibiting (x)
------- ---
conveyances of property to a political subdivision pursuant to an industrial
revenue or pollution control bond financing whereby equitable title to such
property remains in the Company (provided, however, any mortgage, deed of trust
or other security interest in the facility in connection therewith shall not be
so excluded), or (y) the deposit of property or money with a trustee or other
entity, or the establishment of an escrow, trust or similar account, for the
purpose of defeasing indebtedness of the Company.
SECTION 8.7. Mergers and Consolidations. Not be a party to any
--------------------------
merger or consolidation unless (i) after giving effect to such merger or
consolidation, no Event of Default and no Credit Suspension Event shall have
occurred and be continuing, (ii) the corporation resulting from or surviving
such merger or consolidation (if other than the Company) shall expressly assume
in writing (in a form reasonably acceptable to Banks having, in the aggregate, a
Percentage of 66 2/3% or more) and agree to perform all the Company's
obligations under this Agreement and (iii) immediately after giving effect to
such merger or consolidation the surviving corporation shall have a Consolidated
Net Worth at least equal to the Consolidated Net Worth of the Company
immediately preceding such merger or consolidation; provided, that nothing in
--------
this Agreement shall prevent the merger of any Subsidiary with and into the
Company or into another Subsidiary or the liquidation of any Subsidiary.
SECTION 8.8. Sale or Other Disposition of Assets. Not, and not
-----------------------------------
permit any Subsidiary to, sell or otherwise dispose of, whether by merger or
otherwise, all or any substantial portion of its assets, except (i) to or with
any other Subsidiary or the Company, (ii) in the ordinary course of business,
(iii) all of the assets of, or the ownership interest in, any Subsidiary which
is not a Significant Subsidiary or (iv) on such
-32-
other terms and conditions as shall have been approved by the Company's Board of
Directors but, in the case of any transfer made pursuant to clause (iii) or
------ -----
(iv), only if, after giving effect thereto, no Event of Default or Credit
- - ----
Suspension Event shall have occurred and be continuing.
SECTION 8.9. Interest Coverage and Consolidated Debt to Consolidated
-------------------------------------------------------
Capitalization Ratio. Not permit, as of the end of any fiscal quarter, both (A)
- - --------------------
the ratio of Consolidated EBDIT to Consolidated Cash Interest Expense for the
twelve month period including such fiscal quarter and the three immediately
preceding fiscal quarters to be less than 2.50 to 1.0 and (B) the ratio of
Consolidated Debt to Consolidated Capitalization at the end of such fiscal
quarter to be more than .60 to 1.0.
ARTICLE IX
CONDITIONS OF LENDING
SECTION 9.1. Initial Revolving Loans. The obligation of each Bank to
-----------------------
make its initial Revolving Loan hereunder is subject to the receipt by such Bank
of all of the following, each duly executed:
SECTION 9.1.1. Revolving Note. The Revolving Note of the
--------------
Company payable to the order of such Bank.
SECTION 9.1.2. Resolutions. Copies of resolutions of the Board of
-----------
Directors of the Company authorizing or ratifying the execution, delivery and
performance, respectively, of this Agreement, the Notes, and other documents
provided for in this Agreement, certified by the Secretary or an Assistant
Secretary of the Company.
SECTION 9.1.3. Consents, etc. Copies of all documents evidencing any
-------------
necessary corporate action, consents and governmental approvals (if any) with
respect to this Agreement and the Notes, certified by the Secretary or an
Assistant Secretary of the Company.
SECTION 9.1.4. Incumbency and Signatures. A Certificate of the
-------------------------
Secretary or an Assistant Secretary of the Company certifying the names of the
officer or officers of the Company authorized to sign this Agreement and the
Notes and other documents provided for in this Agreement, together with a sample
of the true signature of each such officer.
-33-
SECTION 9.1.5. Opinion of Counsel to Borrower. The opinion of
------------------------------
Messrs. Cahill Gordon & Reindel, counsel for the Company, addressed to Banks,
substantially in the form of Exhibit D.
SECTION 9.1.6. Other. Such other documents as any Bank may
-----
reasonably request.
SECTION 9.2. All Revolving Loans. The obligation of each Bank to
-------------------
make each Revolving Loan (including, without limitation, its initial Revolving
Loan but excluding, however, any Loan made by a continuation or conversion
pursuant to Article V and any repayment and reborrowing deemed to have been
------- --
made pursuant to Section 1.1.8) is subject to the following further conditions
------- -----
precedent that:
SECTION 9.2.1. No Default. After giving effect to all Loans then
----------
being made (a) no Event of Default, or Credit Suspension Event, shall have
occurred and be continuing, (b) the warranties of the Company contained in
Sections 7.1, 7.2, 7.3, 7.6, 7.7, 7.8, 7.9 and 7.10 shall be true and correct in
- - -------- --- --- --- --- --- --- --- ----
all material respects with the same effect as though made on such date and (c)
if the Borrower of such Loan is a Designated Subsidiary, the warranties of such
Borrower in its Designation Letter shall be true and correct in all material
respects with the same effect as though made on such date.
SECTION 9.2.2. Confirmatory Certificate. Depositary Bank shall have
------------------------
received (in sufficient number of signed counterparts to provide, and Depositary
Bank shall provide, one to each Bank) a certificate dated the date of such
requested Loan and signed by the Chairman of the Board, any Senior Vice
President, the Chief Financial Officer or the Treasurer of the Company as to the
matters set out in Sections 9.2.1 and 9.2.3.
-------- ----- -----
SECTION 9.2.3. Litigation. No litigation, arbitration proceedings or
----------
governmental investigation or proceedings not disclosed in writing by the
Company to Banks prior to the date of the immediately preceding Revolving Loan
hereunder (or in the case of the initial Revolving Loan, prior to the date of
execution and delivery of this Agreement) is pending or known to be threatened
against the Company or any Subsidiary and no material development not so
disclosed has occurred in any litigation, arbitration proceeding or governmental
proceeding so disclosed, which in the opinion of Banks having, in the aggregate,
a Percentage of 66 2/3% or more, is likely to materially adversely affect the
consolidated financial condition or continued operations of the Company and its
Subsidiaries as a
-34-
whole or materially impair the ability of the Company to perform its obligations
hereunder.
SECTION 9.3. Initial Loan to Any Designated Subsidiary. The
-----------------------------------------
obligation of each Bank to make the initial Loan to each Designated Subsidiary
hereunder is subject to the further conditions precedent that such Bank shall
have received:
SECTION 9.3.1. Basic Documents. The Revolving Note of such
---------------
Designated Subsidiary payable to the order of the Bank and, with respect to such
Designated Subsidiary the documents contemplated by Sections 9.1.2, 9.1.3 and
-------- ----- -----
9.1.4.
- - -----
SECTION 9.3.2. Designation. The Designation Letter of such
-----------
Designated Subsidiary, substantially in the form of Exhibit E.
SECTION 9.3.3. Opinion of Counsel. A signed copy of an opinion of
------------------
counsel to such Designated Subsidiary, substantially in the form of Exhibit F.
------- -
SECTION 9.4. Term Loans. The obligation of each Bank to make Term
----------
Loans is subject to the conditions precedent (i) that such Bank shall have
received the Term Note of Borrower payable to the order of such Bank, duly
executed and dated the date of such Term Loan, and that the principal of and
accrued interest on all Revolving Notes shall have been or be paid in full prior
to or concurrently with the making of such Term Loan and (ii) that, if the
original principal amount of such Bank's Term Notes exceeds the principal amount
of its Revolving Notes outstanding immediately prior thereto, each of the
conditions precedent set forth in Sections 9.2.1 through 9.2.3 shall have been
-------- ----- -----
satisfied as if such Term Loan were a Revolving Loan.
ARTICLE X
GUARANTEE
SECTION 10.1. Unconditional Guarantee. For valuable consideration,
-----------------------
receipt whereof is hereby acknowledged, and to induce each Bank to make Loans to
the Designated Subsidiaries, the Company, as principal and not merely as surety,
hereby unconditionally and irrevocably guarantees to each Bank that: (i) the
principal of and interest on each Loan to each Designated Subsidiary shall be
promptly paid in full when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms hereof, and, in case of any extension of
time of
-35-
payment, in whole or in part, of such Loan, that all such sums shall be promptly
paid when due (whether at stated maturity, by acceleration or otherwise) in
accordance with the terms of such extension; and (ii) all other amounts payable
hereunder by any Designated Subsidiary to any Bank shall be promptly paid in
full when due in accordance with the terms hereof (the obligations of the
Designated Subsidiaries under these subsections (i) and (ii) of this Section
-------
10.1 being the "Obligations").
- - ----
In addition, the Company hereby unconditionally and irrevocably agrees that upon
default in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal of, or interest on, any Loan to any Designated
Subsidiary or such other amounts payable by any Designated Subsidiary to any
Bank, the Company will forthwith pay the same, without further notice or demand.
SECTION 10.2. Guarantee Absolute. The Company guarantees that the
------------------
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Bank with
respect thereto. The liability of the Company under this guarantee shall be
absolute and unconditional irrespective of: (i) any lack of validity or
enforceability of this Agreement or any other agreement or instrument relating
thereto; (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations,or any other amendment or waiver of
or any consent to departure from this Agreement (including, without limitation,
any extension of the Revolver Expiration Date or any Commitment Increase); (iii)
any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or (iv) any other circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Company, any Borrower or a guarantor.
The guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any of the Banks upon the insolvency, bankruptcy or
reorganization of the Company or any Borrower or otherwise, all as though such
payment had not been made.
SECTION 10.3. Waivers. The Company hereby expressly waives
-------
diligence, notice of acceptance of this guarantee, presentment, demand for
payment, protest, any requirement that any right or power be exhausted or any
action be taken against any Designated Subsidiary or against any other guarantor
of all
-36-
or any portion of the Loans, and all other notices and demands whatsoever.
The Company irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon the making of any payment under
the guarantee contained in this Article X to be subrogated to the rights of the
------- -
payee against any Designated Subsidiary with respect to such payment or to
otherwise be reimbursed, indemnified or exonerated by a Designated Subsidiary in
respect thereof.
SECTION 10.4. Remedies. Each of the Banks may pursue its respective
--------
rights and remedies under this Article X and shall be entitled to payment
------- -
hereunder notwithstanding any other guarantee of all or any part of the Loans to
the Designated Subsidiaries, and notwithstanding any action taken by any such
Bank to enforce any of its rights or remedies under such other guarantee, or any
payment received thereunder. The Company hereby irrevocably waives any claim or
other rights that it may now or hereafter acquire against the Designated
Subsidiary that arise from the existence, payment, performance or enforcement of
the Company's obligations under this Article X, including, without limitation,
------- -
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Banks
against the Designated Subsidiary, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Designated Subsidiary,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right. If any
amount shall be paid to the Company in violation of the preceding sentence at
any time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Banks and shall forthwith be paid
to the Depositary Bank for the accounts of the respective Banks to be credited
and applied to the Obligations, whether matured or unmatured, in accordance with
the terms of this Agreement, or to be held as collateral for any Obligations or
other amounts payable under this Agreement thereafter arising. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and that the waiver set
forth in this section is knowingly made in contemplation of such benefits.
SECTION 10.5. Survival. This guarantee is a continuing guarantee and
--------
shall (i) remain in full force and effect until payment in full after the
Termination Date of the Obligations and all other amounts payable under this
guarantee,
-37-
(ii) be binding upon the Company, its successors and assigns, (iii) inure to the
benefit of and be enforceable by each Bank and its successors, transferees and
assigns and (iv) be reinstated if at any time any payment to a Bank hereunder is
required to be restored by such Bank.
ARTICLE XI
EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 11.1. Events of Default. Each of the
-----------------
following shall constitute an Event of Default under this Agreement:
SECTION 11.1.1. Non-Payment of Notes, etc. Default, and continuance
-------------------------
thereof for five days after the due date thereof, in the payment when due of any
interest on any Note or any facility fee, or default in the payment when due of
any principal of any Note or other amounts payable by any Borrower hereunder
(excluding, however, to the extent disputed by Borrower in good faith, amounts
payable pursuant to Section 3.1.5, 3.1.7 or 4.5 in an aggregate amount not
------- ----- ----- ---
exceeding $1,000,000 for all Banks).
SECTION 11.1.2. Non-Payment of Other Indebtedness. Default in the
---------------------------------
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any other indebtedness for borrowed money or other
obligations evidenced by a note, debenture, or similar instrument (including
capitalized lease obligations) in an aggregate principal amount exceeding
$50,000,000 of, or guaranteed by, the Company or any Significant Subsidiary or
default in the performance or observance of any obligation or condition with
respect to any such other indebtedness if the effect of such default in the
performance or observance is to accelerate the maturity of any such indebtedness
or to permit the holder or holders thereof, or any trustee or agent for such
holders, to cause such indebtedness to become due and payable prior to its
expressed maturity.
SECTION 11.1.3. Bankruptcy, Insolvency, etc. The Company or any
---------------------------
Significant Subsidiary becomes insolvent or admits in writing its inability to
pay its debts or fails to pay its debts, generally as they become due; or the
Company or any Significant Subsidiary applies for, consents to, or acquiesces in
the appointment of, a trustee, custodian or receiver for the Company or such
Significant Subsidiary or any property thereof, or makes a general assignment
for the benefit of creditors; or, in the absence of such application, consent or
acquiescence, a trustee, custodian or receiver is appointed for the Company or
-38-
any Significant Subsidiary or for a substantial part of the property of any
thereof and is not discharged within 60 days; or any bankruptcy, reorganization,
debt arrangement, or other proceeding or case under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding (except the voluntary
dissolution, not under any bankruptcy or insolvency law, of a Significant
Subsidiary), is commenced in respect of the Company or any Significant
Subsidiary, and if such proceeding is not commenced by the Company or
Significant Subsidiary, it is consented to or acquiesced in by the Company or
Significant Subsidiary or remains for 60 days undismissed; or any corporate
action is taken by the shareholder(s) or board of directors of the Company or
any Significant Subsidiary to authorize or further any of the actions described
in this Section 11.1.3.
------- ------
SECTION 11.1.4. Non-Compliance with This Agreement. Failure by the
----------------------------------
Company to comply with or to perform any provision of this Agreement (and not
constituting an Event of Default under any of the preceding provisions of this
Article XI) and continuance of such failure for 30 days, after notice thereof to
- - ------- --
the Company from any Bank or the holder of any Note stating that such Bank or
holder is of the opinion that such failure is material; provided, that, any
failure by the Company to comply with any provision of this Agreement solely as
a result of a change in GAAP shall not constitute an Event of Default.
SECTION 11.1.5. Warranties. Any warranty made by the Company herein
----------
is breached in any material respect, or any schedule, certificate, financial
statement or report furnished by the Company to any Bank is false or misleading
in any material respect on the date as of which the facts therein set forth are
stated or certified.
SECTION 11.1.6. ERISA. The Company or any Significant Subsidiary
-----
incurs any liability to the Pension Benefit Guaranty Corporation or any
successor thereto in excess of $50,000,000.
SECTION 11.2. Effect of Event of Default. If any Event of Default
--------------------------
described in Section 11.1.3 shall occur, the Credit (if it has not theretofore
------- ------
terminated) shall immediately terminate and all Notes and all other amounts
payable hereunder shall become immediately due and payable, all without
presentment or notice of any kind, all of which are hereby waived; and, in the
case of any other Event of Default which shall have occurred and remain
continuing, Banks having, in the aggregate, a Percentage of 66 2/3% or more may,
by the giving of notice in writing to the Company, declare the Credit (if it has
not theretofore terminated) to be terminated and/or all Notes and all other
amounts payable hereunder to be immediately due and
-39-
payable, whereupon the Credit shall immediately terminate and/or all Notes and
all other amounts payable hereunder shall become immediately due and payable,
all without presentment or notice of any kind, all of which are hereby waived.
Notwithstanding the foregoing, the effect as an Event of Default of any event
described in Section 11.1.1 or Section 11.1.3 may be waived by the written
------- ------ ------- ------
concurrence of Banks having, in the aggregate, a Percentage of 100%, and the
effect as an Event of Default of any other event described in Section 11.1 may
------- ----
be waived by the written concurrence of Banks having, in the aggregate, a
Percentage of 66 2/3% or more.
SECTION 11.3. Defaults by Designated Subsidiaries. If any of the
-----------------------------------
following defaults with respect to any Designated Subsidiary have occurred and
are continuing then Section 11.4 shall apply:
SECTION 11.3.1. Warranties. Any warranty made by such Designated
----------
Subsidiary herein or in the Designation Letter pursuant to which it is
designated as a Borrower hereunder is breached in any material respect or any
schedule, certificate, financial statement or report furnished by such
Designated Subsidiary to any Bank is false or misleading in any material respect
on the date as of which the facts therein set forth are stated or certified.
SECTION 11.3.2. Non-Payment of Other Indebtedness. Default in the
---------------------------------
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any other indebtedness for borrowed money or other
obligations evidenced by a note, debenture, or similar instrument (including
capitalized lease obligations) in a principal amount exceeding $50,000,000 of,
or guaranteed by, a Designated Subsidiary or default in the performance or
observance of any obligation or condition with respect to any such other
indebtedness if the effect of such default in the performance or observance is
to accelerate the maturity of any such indebtedness or to permit the holder or
holders thereof, or any trustee or agent for such holders, to cause such
indebtedness to become due and payable prior to its expressed maturity.
SECTION 11.3.3. Bankruptcy, Insolvency, etc. A Designated Subsidiary
---------------------------
becomes insolvent or admits in writing its inability to pay its debts or fails
to pay its debts, generally as they become due; or the Designated Subsidiary
applies for, consents to, or acquiesces in the appointment of, a trustee,
custodian or receiver for such Designated Subsidiary or any property thereof, or
makes a general assignment for the benefit of creditors; or, in the absence of
such application, consent or
-40-
acquiescence, a trustee, custodian or receiver is appointed for any Designated
Subsidiary or for a substantial part of the property of any thereof and is not
discharged within 60 days; or any bankruptcy, reorganization, debt arrangement,
or other proceeding or case under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding is commenced in respect of the Company or
any Significant Subsidiary, and if such proceeding is not commenced by such
Designated Subsidiary, it is consented to or acquiesced in by such Designated
Subsidiary or remains for 60 days undismissed; or any corporate action is taken
by the shareholder(s) or board of directors of any Designated Subsidiary to
authorize or further any of the actions described in this Section 11.3.3.
------- ------
SECTION 11.3.4. Non-Compliance with This Agreement. Failure by
----------------------------------
Designated Subsidiary to comply with or to perform any provision of this
Agreement (and not constituting an Event of Default under any of the preceding
provisions of this Section 11.3) and continuance of such failure for 30 days,
------- ----
after notice thereof to the Company and the Designated Subsidiary from any Bank
or the holder of any Note stating that such Bank or holder is of the opinion
that such failure is material.
SECTION 11.4. Effect of Default by Designated Subsidiary. If any
------------------------------------------
default described in Section 11.3.2 or 11.3.3 shall occur, without any action by
------- ------ ------
the Bank, the Banks shall have no obligation to make Loans to such Designated
Subsidiary under this Agreement and all Loans under this Agreement to such
Designated Subsidiary and all other amounts payable hereunder by such Designated
Subsidiary shall become immediately due and payable, all without presentment or
notice of any kind; and, in the case of any other default described in Section
-------
11.3 which shall have occurred and remain continuing, Banks having, in the
- - ----
aggregate, a Percentage of 66 2/3% or more may, by the giving of notice in
writing to the Company, decline to make further Loans to such Designated
Subsidiary and/or declare all Loans under this Agreement to such Designated
Subsidiary and all other amounts payable hereunder by such Designated Subsidiary
to be immediately due and payable, without presentment or notice of any kind.
Notwithstanding the foregoing, the effect of any event described in Section 11.3
------- ----
may be waived by the written concurrence of Banks having, in the aggregate, a
Percentage of 66 2/3% or more.
-41-
ARTICLE XII
CERTAIN DEFINITIONS
When used herein, the following terms shall have the following
meanings (which shall be equally applicable to the singular and plural forms
thereof):
"Alternate Currency" means any currency other than Dollars which is
------------------
freely transferable and convertible into Dollars.
"Alternate Currency Loan" see the definition below of "Loan."
-----------------------
"Alternate Currency Payment Office" has the meaning specified
---------------------------------
in Section 1.3(e).
------- ------
"Alternate Rating Agency" shall mean (i) Fitch Investors Service,
-----------------------
Inc., (ii) Duff & Phelps Credit Rating Co. or (iii) another nationally
recognized rating agency selected by the Borrower to rate its senior debt
securities, which, in the case of clause (iii), shall be approved by Banks
having, in the aggregate, a Percentage of at least 66 2/3%.
"Assuming Bank" shall mean, at any time, a Person which proposes
-------------
to become a Bank hereunder pursuant to Section 1.1.8.
------- -----
"Assumption Agreement" shall mean an agreement by which an institution
--------------------
agrees to become a Bank party to this Agreement pursuant to Section 1.1.8.
------- -----
"Bank" shall mean the Banks listed on the signature pages hereof and
----
each institution that becomes a party hereto pursuant to Section 1.1.8 or 13.5.
------- ----- ----
"Bank Indemnitees" -- see Section 13.9.
---------------- ------------
"Borrower" shall mean the Company or any Designated Subsidiary,
--------
as the context may require.
"Borrowing Date" shall mean, with respect to each Loan, the date upon
--------------
which a Bank makes such Loan hereunder to Borrower.
"Business Day" shall mean a day on which banks are not authorized or
------------
required by law to close for business in New York City.
-42-
"CD Interest Period" shall mean as to each CD Loan, the period which
------------------
shall begin on (and include) the most recent Borrowing Date with respect to such
Loan and shall end, as Borrower shall elect in its notice pursuant to Section
-------
1.2 or 5.4, as the case may be, on (and include) the day 30, 60, 90 or 180 days
- - --- ---
thereafter, as selected by Borrower; provided that no CD Interest Period
--------
commencing prior to the Revolver Expiration Date or the final maturity, by
acceleration or otherwise, of all of the Term Loans shall end later than such
Revolver Expiration Date or date of maturity of the Term Loans, as the case may
be, and further provided that any CD Interest Period which would otherwise end
------- --------
on a day which is not a Business Day shall be extended to the next succeeding
Business Day.
"CD Loan" -- see definition below of "Loan".
-------
"CD Margin" -- see Section 3.1.8.
--------- ------- -----
"CD Rate" shall mean for each CD Interest Period a rate per annum
-------
which is equal to the CD Margin as of the first day of the applicable Interest
Period plus the sum (rounded if necessary to the nearest 1/20 of 1%) of (i) the
rate obtained by dividing (x) the arithmetic mean as calculated by the
Depositary Bank of the respective rates per annum (rounded if necessary to the
nearest 1/20 of 1%) of the Reference Banks, in each such case determined by each
Reference Bank to be the average of the bid rates quoted to it at its principal
office at approximately 10:00 a.m. New York City time (or as soon thereafter as
practicable) on the first day of the CD Interest Period for such Loan by New
York certificate of deposit dealers of recognized standing selected by such
Reference Bank for the purchase at face value in the secondary certificate of
deposit market of certificates of deposit of such Reference Bank for a period,
and in an amount, comparable to such CD Interest Period and the principal amount
of the CD Loan which shall be made by such Reference Bank and outstanding during
such CD Interest Period, provided, that, if such quotations from such dealers
are not available to any Reference Bank, such Reference Bank shall determine a
reasonably equivalent rate on the basis of another source or sources selected by
it, by (y) a percentage equal to 100% minus the stated maximum rate of all
reserve requirements as specified in Regulation D (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable on the first day of such CD Interest Period to a negotiable
certificate of deposit in excess of $100,000 with a maturity equal to such CD
Interest Period of any member bank of the Federal Reserve System, plus (ii) the
daily net annual assessment rate as estimated by the Depositary Bank on the
first day of such CD Interest Period for determining the current annual
assessment
-43-
payable by the Depositary Bank to the Federal Deposit Insurance Corporation for
insuring such certificates of deposit.
"Commitment" shall mean the amount set forth opposite each Bank's
----------
signature hereto, as such amount may be reduced or increased from time to time
pursuant to Sections 1.1.6, 1.1.7 and 1.1.8 or Section 13.5.
-------- ----- ----- ----- ------- ----
"Commitment Increase" has the meaning specified in Section 1.1.8.
------------------- ------- -----
"Consolidated Capitalization" shall mean the sum of Consolidated Debt
---------------------------
and Consolidated Net Worth.
"Consolidated Cash Interest Expense" means, with respect to the
----------------------------------
Company for any period, total interest expense deducted in calculating
Consolidated Net Income (including that attributable to capitalized lease
liabilities of the Company and Consolidated Subsidiaries in accordance with
GAAP, but excluding interest expense not payable in cash (including
amortization of discount)), with respect to all outstanding Consolidated Debt,
as determined on a consolidated basis for the Company and Consolidated
Subsidiaries in conformity with GAAP.
"Consolidated Debt" shall mean the sum of all indebtedness for
-----------------
borrowed money of the Company and Consolidated Subsidiaries, all indebtedness
secured by assets of (and whether or not assumed by) the Company or any
Consolidated Subsidiary (which indebtedness shall be valued at the lesser of the
outstanding principal amount thereof or the book value of such assets), all
capitalized lease liabilities of the Company and Consolidated Subsidiaries and
all outstanding obligations under guarantees and similar undertakings with
respect to any such indebtedness or liabilities of Persons other than the
Company and Consolidated Subsidiaries which is required to be reflected on the
Company's balance sheet (excluding any notes thereto) in accordance with GAAP;
provided, that there shall be excluded from Consolidated Debt any such
- - --------
indebtedness which by its terms is presently convertible into or exchangeable
for capital stock of the Company at a price per share at least 15 percent below
the Current Market Price per share of such capital stock.
"Consolidated EBDIT" shall mean, without duplication, with respect to
------------------
the Company and Consolidated Subsidiaries for any period, the sum of the amounts
for such period of (i) Consolidated Net Income, (ii) provision for taxes based
on income, (iii) depreciation expense, (iv) amortization expense, (v) total
interest expense deducted in calculating Consolidated Net Income, and (vi) other
non-cash items reducing Consolidated
-44-
Net Income all as determined on a consolidated basis for the Company and
Consolidated Subsidiaries in conformity with GAAP.
"Consolidated Net Income" shall mean with respect to the Company for
-----------------------
any period, the net income (or loss) of the Company and Consolidated
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; provided that there shall
--------
be excluded (i) the income (or loss) of any Person (other than a Subsidiary of
the Company) in which any other Person (other than the Company or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any of its
Subsidiaries by such Person during such period and (ii) the income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary of the Company or
is merged into or consolidated with any of the Company's Subsidiaries or that
Person's assets are acquired by the Company or any of its Subsidiaries.
"Consolidated Net Worth" shall mean the par value (or value stated on
----------------------
the books of the Company) of the capital stock of all classes of the Company and
Consolidated Subsidiaries issued and outstanding, plus (or minus in the case of
a surplus deficit), the amount of the consolidated surplus, whether capital or
earned, of the Company and its Subsidiaries plus the principal amount of any
indebtedness of the Company and the Consolidated Subsidiaries which by its terms
is presently convertible into or exchangeable for capital stock of the Company
at a price per share at least 15 percent below the Current Market Price per
share of such capital stock.
"Consolidated Subsidiary" shall mean any Subsidiary the accounts of
-----------------------
which are consolidated with those of the Company in accordance with GAAP.
"Continuation Date" -- see Section 5.1.
----------------- ------- ---
"Conversion Date" -- see Section 5.2.
--------------- ------- ---
"Credit" shall mean the sum of (i) the aggregate unused Commitments of
------
all Banks hereunder to make Revolving Loans or Term Loans plus (ii) the
aggregate principal amount of Revolving Loans or Term Loans outstanding
hereunder.
"Credit Suspension Event" shall mean any event which if it continues
-----------------------
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
-45-
"Current Market Price" shall mean for any class of capital stock of
--------------------
the Company the average for any 20 consecutive Stock Trading Days ending within
30 days of the date of determination of the average of the high and low sale
prices per share, or if no sales are reported, the average of the bid and ask
prices per share or, if more than one in either case, the average of the average
bid and average ask prices per share) for each Stock Trading Day in such 20
consecutive Stock Trading Day period, as reported in the composite transactions
for the New York Stock Exchange, or if such capital stock is not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which such capital stock is listed or admitted to trading or, if such capital
stock is not listed or admitted to trading on a United States national or
regional securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or by the National
Quotation Bureau Incorporated. A "Stock Trading Day" means each day on which
the securities exchange or quotation system which is used to determine the
Current Market Price is open for trading or quotation.
"Depositary Bank" -- see Section 1.2.
--------------- ------- ---
"Designated Subsidiary" shall mean any corporate Subsidiary of the
---------------------
Company designated for borrowing privileges under this Agreement pursuant to
Section 13.10 hereof.
- - ------- -----
"Designation Letter" shall mean, in respect of any Designated
------------------
Subsidiary, a letter in the form of Exhibit E hereto signed by such Designated
------- -
Subsidiary and the Company.
"Dollars" and the sign "$" shall mean lawful money of the United
-------
States of America.
"Domestic Loan" -- see definition below of "Loan."
-------------
"Equivalent Domestic Loan" -- see Section 6.3.
------------------------ ------- ---
"Eurodollar Day" shall mean a day on which dealings are carried on in
--------------
the London Interbank market in Dollars and on which banks are not authorized or
required by law to close for business in New York City.
"Eurodollar Interest Rate" -- see Section 3.1.2.
------------------------ ------- -----
-46-
"Eurodollar Loan" -- see definition below of "Loan."
---------------
"Eurodollar Margin" -- see Section 3.1.8.
----------------- ------- -----
"Eurodollar Office" -- see Section 1.1.3.
----------------- ------- -----
"Eurodollar Period" shall mean, as to each Eurodollar Loan, the
-----------------
period which shall begin on (and include) the most recent Borrowing Date with
respect to such Loan and shall end, as Borrower shall elect in its notice
pursuant to
Section 1.2 or 5.4, as the case may be, on (and include) the day one, two, three
- - ------- --- ---
or six months thereafter, as selected by Borrower; provided that no Eurodollar
--------
Period commencing prior to the Revolver Expiration Date or the final maturity,
by acceleration or otherwise, of all of the Revolving Loans or Term Loans shall
end later than such Revolver Expiration Date or date of maturity, as the case
may be. Subject to the proviso in the preceding sentence, any Eurodollar Period
which would otherwise end on a day which would not be a Eurodollar Day shall
instead continue to and end on the next succeeding Eurodollar Day, unless such
next succeeding Eurodollar Day would be the first Eurodollar Day in a calendar
month, in which case such Eurodollar Period shall instead end on the next
preceding Eurodollar Day, and any Eurodollar Period which begins on the last
Eurodollar 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
Eurodollar Period) shall end on the last Eurodollar Day of a calendar month.
"Event of Default" shall mean any of the events described
----------------
in Section 11.1.
------- ----
"Federal Funds Rate" shall mean for any period, a fluctuating interest
------------------
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for each day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Depositary Bank from three Federal Funds brokers of
recognized standing selected by the Depositary Bank.
"Fixed Rate Interest Date" -- see Section 3.1.
------------------------ ------- ---
"Fixed Rate Loan" -- see definition below of "Loan".
---------------
-47-
"GAAP" shall mean generally accepted accounting principles set forth
----
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Increase Date" has the meaning assigned to that term in
-------------
Section 1.1.8.
- - ------- -----
"Indemnified Liabilities" -- see Section 13.9.
----------------------- ------- ----
"Interest Date" shall mean Fixed Rate Interest Date and/or Prime Rate
-------------
Interest Date, as the case may be.
"Interest Period" shall mean a CD Interest Period or a Eurodollar
---------------
Period, as the context requires, or both.
"Liabilities" -- see Section 4.1.
----------- ------- ---
"Loan" shall mean each lending by any Bank
----
hereunder. Particular types of Loans are as follows:
(i) "Alternate Currency Loan" shall mean any Loan denominated in an
-----------------------
Alternate Currency;
(ii) "CD Loan" shall mean any Loan which bears interest at the CD
-------
Rate;
(iii) "Domestic Loan" shall mean any Loan which is a Prime
-------------
Rate Loan or a CD Loan;
(iv) "Eurodollar Loan" shall mean any Loan which bears interest at
---------------
the Eurodollar Interest Rate;
(v) "Fixed Rate Loan" shall mean a CD Loan or a Eurodollar Loan;
---------------
(vi) "Market Rate Loan" -- see Section 1.3;
---------------- ------- ---
(vii) "Prime Rate Loan" shall mean any Loan bearing interest
---------------
at the Prime Rate;
-48-
(viii) "Revolving Loan" shall mean any Loan made pursuant to the
--------------
unused Commitments contained in Section 1.1.1 but shall exclude any Market Rate
------- -----
Loan; and
(ix) "Term Loan" shall mean any Loan made pursuant to the
---------
commitments contained in Section 1.1.2.
------- -----
"Market Rate" -- see Section 1.3(a).
----------- ------- ------
"Market Rate Loan" -- see definition above of "Loan."
----------------
"Market Rate Note" -- see Section 2.3.
---------------- ------- ---
"Notes" shall mean the Revolving Notes, Market Rate Notes and Term
-----
Notes, or any of them.
"Obligations" see Section 10.1.
----------- ------- ----
"Percentage" with respect to any Bank shall mean at any time the
----------
percentage of the Credit represented by such Bank's Commitment.
"Person" shall mean any corporation, partnership, association,
------
trust, individual or other entity.
"Prime Rate" shall mean the greater of: (a) the average of the rates
----------
per annum from time to time announced by each of the Reference Banks at the
address set forth below its signature hereto as such Bank's prime commercial
lending rate and (b) the effective Federal Funds Rate for overnight funds plus
1/2 of 1% per annum.
"Prime Rate Interest Date" -- see Section 3.1.
------------------------ ------- ---
"Prime Rate Loan" -- see definition of "Loan" above.
---------------
"Public Debt Rating" means, as of any date, the highest rating that
------------------
has been most recently announced by either Moody's Investors Service, Inc.
("Moody's") or Standard & Poor's Corporation ("S&P") or an Alternate Rating
Agency in substitution for Moody's or S&P (but not both), for any class of long-
term unsecured senior debt issued by the Company; provided, that if the ratings
--------
determined by Moody's or S&P (or an Alternate Rating Agency) differ by more than
one rating category the Public Debt Rating shall be the average of the two
ratings. For purposes of the foregoing, (a) if an Alternate Rating Agency is
used, the
-49-
ratings provided by such Alternate Rating Agency shall be converted into an
equivalent of Moody's or S&P, as nearly as practicable, for purposes of
determining the Eurodollar Margin or CD Margin; and (b) if any rating
established or deemed to have been established by Moody's or S&P shall be
changed (other than as a result of a change in the rating system of either
Moody's or S&P), such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such change. Any
change in the Eurodollar Margin or CD Margin due to a change in the Public Debt
Rating shall be effective for Interest Periods commencing after the public
announcement of the change in debt rating. If the rating system of either
Moody's or S&P shall change, the Company and the Banks shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system.
"Reference Banks" shall mean Chemical Bank, NationsBank of North
---------------
Carolina N.A. and The Chase Manhattan Bank, N.A. or, with respect to Eurodollar
Loans, the Eurodollar Office of any of them.
"Regulation D" -- see Section 3.1.2.1.
------------ ------- -------
"Revolver Expiration Date" means the earlier of January 11, 1998 or
------------------------
the date of termination in whole of the Commitments.
"Revolving Loan" -- see definition above of "Loan."
--------------
"Revolving Note" -- see Section 2.1.
-------------- ------- ---
"Significant Subsidiary" shall have the meaning assigned to such term
----------------------
in Regulation C (S) 230.405 promulgated by the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, as such
definition is in effect as of the date of this Agreement.
"Subsidiary" shall mean a corporation of which the Company and its
----------
other Subsidiaries own directly or indirectly more than 50% of the ordinary
voting power for the election of directors.
-50-
"Term Loan" -- see definition above of "Loan."
---------
"Term Note" -- see Section 2.2.
--------- ------- ---
ARTICLE XIII
GENERAL
SECTION 13.1. Waiver; Amendments. No delay on the part of any Bank
------------------
or the holder of any Note in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by any of
them of any right, power or remedy preclude other or further exercise thereof,
or the exercise of any other right, power or remedy. No amendment, modification
or waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing
(including telegram or telex) and signed and delivered by the Company and Banks
having an aggregate Percentage of not less than the Percentage expressly
designated herein with respect thereto or, in the absence of such designation as
to any provision of this Agreement or the Notes, by Banks having, in the
aggregate, a Percentage of 66 2/3% or more, and then any such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No amendment, modification,
waiver or consent (i) shall extend or increase the amount of the Credit, the
scheduled maturity of the Notes, or the scheduled date for the payment of
interest or fees, or reduce the fees or the rate of interest payable with
respect to the Notes or modify the provisions of Section 3.1.5, 3.1.7, 4.5, 6.3,
------- ----- ----- --- ---
6.4, or 13.9 or modify the provisions of Article X in a manner adverse to the
- - --- ---- ------- -
Banks or impose an additional obligation on any of the Banks or reduce the
aggregate Percentage required to effect an amendment, modification, waiver or
consent without the consent of all of the Banks or (ii) shall extend the
scheduled maturity of, or the scheduled date for the payment of interest or fees
on, or reduce the principal amount of, or rate of interest on, any Note without
the consent of the holder of such Note. The provisions of this Section 13.1 may
------- ----
not be amended or modified without the consent of all of the Banks.
SECTION 13.2. Confirmations. Borrower and each holder of a Revolving
-------------
Note agree from time to time, upon written request received by it from the
other, to confirm to the other in writing the aggregate unpaid principal amount
of the Revolving
-51-
Loans then outstanding under such Revolving Note; and each such holder agrees
from time to time, upon written request received by it from Borrower, to make
the Revolving Note held by it (including the schedule attached thereto)
available for reasonable inspection by Borrower at the office of such holder.
Each Bank shall, promptly upon request by Borrower, furnish Borrower with a
photocopy of the schedule attached to such Bank's Revolving Note.
SECTION 13.3. Notices. Any notice from Borrower to any Bank
-------
(including Depositary Bank) under Section 1.2, 1.1.6, 1.1.8 or 5.4 may be (i)
------- --- ----- ----- ---
telephonic if confirmed, prior to the date for taking (or for the effectiveness
of) the action specified in such notice, by a writing received by such Bank or
(ii) by facsimile if confirmed, prior to the date for taking (or for the
effectiveness of) the action specified in such notice, by telephone. Any other
notice hereunder to Borrower or any Bank (or other holder) shall, except as
otherwise expressly provided, be in writing and, if mailed shall be deemed to
have been given (i) three days after the date when sent by first class mail,
postage prepaid, (ii) one day after sent by overnight delivery service and, in
each case, addressed to Borrower or such Bank (or other holder) at its address
shown below its signature hereto, or at such other address as it may, by written
notice received by the other parties to this Agreement, have designated as its
address for such purpose. Any Bank or the holder of any Note giving any waiver,
consent or notice to, or making any request upon, Borrower hereunder shall
promptly notify the Depositary Bank thereof.
SECTION 13.4. 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
("GAAP"), applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
--------
Depositary Bank that it wishes to amend any covenant in Article VIII to
eliminate the effect of any change in generally accepted accounting principles
on the operation of such covenant, then compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
-52-
immediately before the 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 Company and Banks holding,
in the aggregate, a Percentage of 66 2/3% or more.
SECTION 13.5. Participations; Transfers of Notes. A Bank may assign
----------------------------------
or sell participations in all or any part of its Commitment or any Loan to
another bank or other entity; provided that an assignment or participation shall
--------
be in a minimum aggregate amount of $10,000,000; and provided, further, (a)
-------- -------
except in the case of assignments of or participations in Market Rate Loans,
that the Company shall have consented in writing to the proposed assignment or
participation, which consent shall not be unreasonably withheld; and (b) in the
case of a participation, no such participation shall in any way affect such
Bank's obligations under this Agreement, and provided, that all amounts payable
by any Borrower under Article III shall be determined as if such Bank had not
------- ---
sold such participation. Upon execution and delivery of an approriate
instrument and payment by any assignee to the 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 Commitments 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 Section 13.5, the transferor Bank and the Borrower shall make
------- ----
appropriate arrangements so that, if required, a new Note is issued to the
assignee.
The agreement executed by the Bank in favor of any participant shall
not give the participant the right to require such Bank to take or omit to take
any action hereunder except action directly relating to (i) the extension of a
payment date with respect to any portion of the principal of or interest on any
amount outstanding or any fees payable hereunder allocated to such participant,
(ii) the reduction of the principal amount of any Loan outstanding hereunder,
(iii) the reduction of the rate of interest payable on such amount or any amount
of fees payable hereunder to a rate or amount, as the case may be, below that
which the participant is entitled to receive under its agreement with such Bank,
or (iv) an extension of the Revolver Expiration Date in accordance with the
terms hereof. Each Bank may furnish to participants (including prospective
participants and
-53-
prospective assignees) any information in the possession of such Bank from time
to time concerning any Borrower; provided, that such Bank shall require any such
--------
participant or assignee (prospective or otherwise) to agree in writing to
maintain the confidentiality of such information; and provided, further, that
--- -------- -------
such Bank may not furnish to the participant or assignee any information which
the Borrower has identified in writing to such Bank to be trade secrets or
proprietary information.
If, pursuant to this Section 13.5, any interest in this Agreement or
------- ----
any Note is transferred to any assignee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Bank shall cause such assignee concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Bank (for the benefit of the
transferor Bank and the Company) that it is either (x) entitled to the benefits
of an income tax treaty with the United States which provides for an exemption
from United States withholding tax on interest and other payments which may be
made by the Company to such Bank pursuant to the terms of this Agreement or any
other credit document; or (y) engaged in a trade or business within the United
States, (ii) to furnish to the transferor Bank and the Company either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such assignee claims entitlement to complete exemption from U.S.
federal withholding tax on all payments hereunder) and (iii) to agree (for the
benefit of the transferor Bank and the Company) to provide to the transferor
Bank and the Company a new Form 4224 or Form 1001 upon the obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such assignee, and to comply from time to time with all applicable U.S. laws
and regulations with regard to such withholding tax exemption.
Notwithstanding anything to the contrary in this Section 13.5, any
------- ----
Bank may pledge and assign its rights hereunder and under the Notes held by it
to a Federal Reserve Bank as collateral.
SECTION 13.6. Regulation U. Each Bank represents that it is not
------------
relying, either directly or indirectly, upon any margin stock (as such term is
defined in Regulation U promulgated by the Board of Governors of the Federal
Reserve System) as collateral security for the extension or maintenance by it of
any credit provided for in this Agreement.
-54-
SECTION 13.7. Confidentiality of Information. Each Bank understands
------------------------------
that some of the information furnished pursuant to this Agreement or obtained by
such Bank pursuant to any inspection made in accordance with Section 8.2 may, at
------- ---
the time furnished or obtained, not have been made public, and each Bank agrees
to keep confidential all such information and will make no use of such
information until it shall have become public except in connection with this
Agreement and with such Bank's outside counsel and accountants, subject however
to each Bank's obligations under law or pursuant to subpoenas or other process
to make information available to governmental agencies and examiners or to
others.
SECTION 13.8. Limitation on Interest. No provision of this Agreement
----------------------
or any Note shall require the payment or permit the collection of interest in
excess of the maximum rate permitted by applicable law.
SECTION 13.9. Costs, Expenses and Taxes. The Company shall pay all
-------------------------
reasonable out-of-pocket expenses of the Depositary Bank and the Banks (but
excluding the fees and disbursements of counsel to the Depositary Bank and the
Banks) in connection with the preparation of this Agreement and all instruments
and documents relating thereto or necessary to satisfy the conditions to lending
hereunder. The Company agrees to pay on demand all out-of-pocket costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
each Bank and the Depositary Bank in connection with the enforcement of this
Agreement, the Notes, any such other instruments or documents or any collateral
security. In addition, each Borrower agrees (i) to pay, and to save the
Depositary Bank and the Banks harmless from all liability for, any stamp or
other taxes which may be payable in connection with the execution or delivery of
this Agreement, the borrowings hereunder, or the issuance of the Notes or of any
other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith and (ii) to indemnify, exonerate
and hold each of the Depositary Bank and the Banks and each of the officers,
directors, employees and agents of such Banks (herein called collectively the
"Bank Indemnitees") free and harmless from and against any and all actions,
causes of action, suits, losses, liabilities, damages and expenses, including,
without limitation, reasonable attorneys' fees and disbursements incurred by any
Bank Indemnitee as a result of, or arising out of, or relating to any
transaction financed with proceeds of any of the Loans or the execution,
delivery, performance, enforcement or administration
-55-
of this Agreement (herein called collectively the "Indemnified Liabilities"),
except for any such Indemnified Liabilities arising on account of any such Bank
Indemnitee's negligence or willful misconduct, and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
SECTION 13.10. Designated Subsidiaries. (i) Designation. The
----------------------- -----------
Company may at any time, and from time to time, by delivery to the Depositary
Bank of a Designation Letter duly executed by the Company and the respective
Subsidiary, designate such Subsidiary as a "Designated Subsidiary" for purposes
of this Agreement and such Subsidiary shall thereupon become a "Designated
Subsidiary" for purposes of this Agreement. The Depositary Bank shall promptly
notify each Bank of each such designation by the Company and the identity of the
respective Subsidiary.
(ii) Termination. Upon the payment and performance in full of all of
-----------
the Obligations of any Designated Subsidiary then, so long as at the time no
request for a Fixed Rate Loan to such Designated Subsidiary is outstanding, such
Subsidiary's status as a "Designated Subsidiary" shall terminate upon notice to
such effect from the Company to the Depositary Bank (which notice the Depositary
Bank shall deliver to each Bank). Thereafter, the Banks shall be under no
further obligation to make any Loan hereunder to such Designated Subsidiary.
SECTION 13.11. Captions. Captions used in this Agreement are for
--------
convenience only and shall not affect the construction of this Agreement.
SECTION 13.12. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and each Note shall be a contract made under and governed by the
internal laws of the State of New York. All obligations of Borrower and rights
of the Banks and any other holders of the Notes expressed herein or in the Notes
shall be in addition to and not in limitation of those provided by applicable
law. The Borrowers hereby submit 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 Borrowers irrevocably waive, to the fullest extent permitted by
law, any objection which they may now or hereafter have to the laying of the
venue of any such
-56-
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 13.13. Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the different parties on separate counterparts
(provided, however, that each such counterpart shall be executed by the Company)
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
SECTION 13.14. Effectiveness. When counterparts executed by all the
-------------
Banks shall have been lodged with the Company and counterparts executed by the
Company shall have been lodged with each Bank this Agreement shall become
effective as of January 12, 1994.
SECTION 13.15. Successors and Assigns. This Agreement shall be
----------------------
binding upon Borrower and the Banks and their respective successors and assigns,
and shall inure to the benefit of the Borrower and the Banks and the respective
successors and assigns of the Banks, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Banks having, in the aggregate, a Percentage of at least
100%.
SECTION 13.16. Duties of Depositary Bank. The Depositary Bank shall
-------------------------
have no duties or responsibilities except those expressly set forth in this
Agreement and neither the Depositary Bank nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith, except
for its or their own gross negligence or willful misconduct. In addition, the
Banks agree to indemnify the Depositary Bank, ratably in accordance with the
aggregate unpaid principal amount of the Loans made by the Banks (or, if no
Loans are at the time outstanding, ratably in accordance with their respective
Percentages), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Depositary Bank in any way relating to or arising out of the duties
and responsibilities of the Depositary Bank expressly set forth in this
Agreement; provided that (i) the Banks shall only be liable to the extent the
Borrower fails to
-57-
indemnify and pay the Depositary Bank pursuant to Section 13.9 hereof, and (ii)
------- ----
no Bank shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Depositary Bank.
SECTION 13.17. Severability. In case any one or more of the
------------
provisions contained in this Agreement or the Notes should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
SECTION 13.18. Representation of the Banks. Each Bank represents and
---------------------------
warrants to the Borrower that it is (x) a United States person (as defined in
Section 7701(a) (30) of the Internal Revenue Code of 1986, as amended (the
"Code")); (y) entitled to the benefits of an income tax treaty with the United
States which provides for an exemption from United States withholding tax on
interest and other payments which may be made by the Borrower to such Bank
pursuant to the terms of this Agreement; or (z) engaged in a trade or business
within the United States. Each Bank that is organized under the laws of any
jurisdiction other than the United States or any State thereof (including the
District of Columbia) agrees to furnish to the Borrower, prior to the date of
the first interest payment hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such Bank
claims entitlement to complete exemption from U.S. federal withholding tax on
all payments hereunder) and to provide to the Borrower a new Form 4224 or Form
1001 upon the obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Bank, and to comply from time to
time with all applicable U.S. laws and regulations with regard to such
withholding tax exemptions. Notwithstanding any other provisions of this
Agreement, the representations, warranties and obligations of the Banks set
forth in Section 13.5 and this Section 13.18 shall survive the borrowing of the
------- ---- ------- -----
Loans and the assignment, sale, repayment or other disposition of the Loans or
any interest therein.
SECTION 13.19. Survival. The obligations of the Borrower under
--------
Sections 3.1.5, 3.1.7, 4.5 and 13.9 shall survive the termination of this
- - -------- ----- ----- --- ----
Agreement and the payment of all Loans.
-58-
SECTION 13.20. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
-----------------------
APPLICABLE LAW, THE BORROWER AND EACH OF THE BANKS HEREBY IRREVOCABLY WAIVE ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
-59-
IN WITNESS WHEREOF, the Company and each Bank have caused this
Agreement to be executed, as of the day and year first above written, by one of
its officers thereunto duly authorized.
GENERAL SIGNAL CORPORATION
By /s/ Julian B. Twombly
----------------------------
Vice President and Treasurer
High Ridge Park
Stamford, Connecticut 06904
Attention: Treasurer
Telecopier No.: (203) 329-4365
Amount of
Commitment
- - ----------
$22,222,222 THE CHASE MANHATTAN BANK, N.A.
By: /s/ Edward F. McNulty
-------------------------------
Title: Vice President
Lending Office for Loans
The Chase Manhattan Bank, N.A.
One Chase Plaza, 17th Floor
New York, New York 10081
Attn: Edward F. McNulty
Telecopy No.: (212) 552-1457
Amount of
Commitment
- - ----------
$22,222,222
CHEMICAL BANK
By: /s/ Robert C. Kennedy
------------------------------
Title: Vice President
Lending Office for Loans
Chemical Bank
270 Park Avenue
New York, New York 10017
Attn: Robert C. Kennedy
Telecopy No: (212) 270-7138
Amount of
Commitment
- - ----------
$22,222,222
NATIONSBANK OF NORTH CAROLINA, N.A
By: /s/ Margaret K. Vandenberg
------------------------------
Title: Vice President
Lending Office for Loans
NationsBank of North Carolina, N.A.
NationsBank Plaza
Charlotte, North Carolina 28255
Attn: Lisa McClelland, NCI-002-17-21
Telecopy No: (704) 386-8694
cc: Margaret K. Vandenberg
NationsBank of North Carolina, N.A.
767 Fifth Avenue
New York, New York 10153
Telecopy No: (212) 593-1083
Amount of
Commitment
- - ----------
$22,222,222
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Linda M. Harris
------------------------------
Title: Senior Vice President
Lending Office for Loans
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Walter R. Gillikin
Telecopy No: (404) 332-6898
Amount of
Commitment
- - ----------
$13,888,889
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Brian E. O'Callahan
------------------------------
Title: Senior Vice President
Lending Office for Loans
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attn: Brian E. O'Callahan
Telecopy No: (212) 856-3991
Amount of
Commitment
- - ----------
$13,888,889
COMMERZBANK A.G.
By: /s/ Juergen Boysen
------------------------------
Title: Senior Vice President
By: /s/ Christian Jagenberg
------------------------------
Title: Vice President
Lending Office for Loans
CommerzBank A.G.
2 World Financial Center
New York, New York 10281-1050
Attn: J.F. Christian Jagenberg
Telecopy No: (212) 266-7235
Amount of
Commitment
- - ----------
$13,888,889
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ James W. Petersen
------------------------------
Title: Vice President
Lending Office for Loans
The First National Bank of Chicago
153 West 51st Street
New York, New York 10019
Attn: James W. Peterson
Telecopy No: (212) 373-1388
Amount of
Commitment
- - ----------
$13,888,889
THE HONG KONG & SHANGHAI BANKING
CORPORATION
By: /s/ Jeffry S. Dykes
------------------------------
Title: Vice President
Lending Office for Loans
The Hong Kong & Shanghai Banking
Corporation
140 Broadway, 4th Floor
New York, New York 10015
Attn: Jeffry S. Dykes
Telecopy No: (212) 658-5109
Amount of
Commitment
- - ----------
$13,888,889
NATIONAL WESTMINSTER BANK Plc
By: /s/ Anthony G. Muller
------------------------------
Title: Vice President
Lending Office for Loans
National Westminster Bank Plc
Corporate and Institutional Finance
175 Water Street
New York, New York 10038-4924
Attn: Anthony G. Muller
Telecopy No: (212) 602-4500
Amount of
Commitment
- - ----------
$13,888,889
THE NORTHERN TRUST COMPANY
By: /s/ Gregory Werd
------------------------------
Title: Vice President
Lending Office for Loans
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attn: Gregory F. Werd, Jr.
Telecopy No: (312) 444-3508
Amount of
Commitment
- - ----------
$13,888,889
THE SANWA BANK LIMITED
By: /s/ Stephen C. Small
------------------------------
Title: Vice President
Lending Office for Loans
The Sanwa Bank Limited
New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attn: Stephen C. Small
Telecopy No: (212) 754-1304
Amount of
Commitment
- - ----------
$13,888,889
SHAWMUT BANK
By: /s/ John F. Wood
------------------------------
Title: Senior Vice President
Lending Office for Loans
Shawmut Bank
777 Main Street
MSN 203
Hartford, Connecticut 06115
Attn: Christopher Mango
Telecopy No: (203) 722-9378
EXHIBIT A
REVOLVING NOTE
$ ,199
The undersigned, for value received, promises to pay to
the order of
on
or before the Revolver Expiration Date, as defined in the Four Year Credit
Agreement referred to below, the principal sum of
Dollars or, if less, the aggregate unpaid
principal amount of all Revolving Loans made by the payee to the undersigned
pursuant to the Four Year Credit Agreement (as hereinafter defined) as shown on
the schedule attached hereto (and any continuation thereof), together, from time
to time, with interest on the unpaid principal amount hereof from time to time
outstanding as provided in Article III of the Four Year Credit Agreement
hereinafter referred to (but in no event higher than the maximum rate permitted
by applicable law).
Payments of both principal and interest are to be made in lawful money
of the United States of America for the account of the payee at the office of
The Chase Manhattan Bank, N.A., at One Chase Manhattan Plaza, New York, New York
10081 in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a Four Year Credit Agreement dated as of January 12,
1994, (and, all further amendments thereto, if any) among the undersigned and
certain banks (including the payee) to which Four Year Credit Agreement
reference is hereby made for a statement of said terms and provisions, including
those under which this Note may be paid, or may be declared to be due and
payable, prior to its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By__________________________________________
Title____________________________________
Schedule Attached to Revolving Note dated , 199 of [Borrower]
payable to the order of
LOANS AND PRINCIPAL PAYMENTS
Beginning
and End
Eurodollar
or CD Amount of Unpaid
Amount of Interest Principal Principal Notation
Date Loan Made Period Repaid Balance Made By
- - ---- --------- ---------- --------- --------- -------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT B
---------
TERM NOTE
$ , 199
The undersigned, for value received, promises to pay to the order of the
principal sum of the
Dollars
payable on January 11, 1998 together, from time to time, with interest on the
unpaid principal amount hereof from time to time outstanding as provided in
Article III of the Four Year Credit Agreement hereinafter referred to
- - ------- ---
(but in no event higher than the maximum rate permitted by law).
Payments of both principal and interest are to be made in lawful money
of the United States of America for the account of the payee at the office of
The Chase Manhattan Bank, N.A., at One Chase Manhattan Plaza, New York, New York
10081 in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a Four Year Credit Agreement dated as of January 12,
1994, (and, all further amendments thereto, if any) among the undersigned and
certain banks (including the payee), to which Four Year Credit Agreement
reference is hereby made for a statement of said terms and provisions, including
those under which this Note may be paid, or may be declared to be due and
payable, prior to its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By____________________________________
Title
EXHIBIT C
Market Rate Promissory Note
$ , 199
The undersigned, for value received, promises to pay to
the order of
on
or before the Revolver Expiration Date, as defined in the Four Year Credit
Agreement referred to below, the principal sum of
Dollars or the equivalent in any Alternate Currency shown on the
schedule attached hereto or, if less, the aggregate unpaid principal amount of
all Market Rate Loans made by the payee to the undersigned pursuant to the Four
Year Credit Agreement (as hereinafter defined) as shown on the schedule attached
hereto (and any continuation thereof), together, from time to time, with
interest on the unpaid principal amount hereof from time to time outstanding as
provided in Article III of the Four Year Credit Agreement hereinafter referred
to (but in no event higher than the maximum rate permitted by applicable law).
Payments of both principal and interest are to be made in lawful money
of the United States of America or an Alternate Currency if so specified with
respect to any Market Rate Loan on the schedule attached hereto in immediately
available funds to, in the case of loans in Dollars the account specified by the
payee and, in the case of Alternate Currency Loans, the Alternate Currency
Payment Office.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, a Four Year Credit Agreement dated as of January 12,
1994, (and, all further amendments thereto, if any) among the undersigned and
certain banks (including the payee) to which Four Year Credit Agreement
reference is hereby made for a statement of said terms and provisions, including
those under which this Note may be paid, or may be declared to be due and
payable, prior to its due date.
This Note is made under and governed by the internal laws of the State
of New York.
[BORROWER]
By__________________________________
Title____________________________
SCHEDULE ATTACHED TO MARKET RATE PROMISSORY NOTE
DATED AS OF FROM
[BORROWER] TO
____________________
ALTERNATE AMOUNT OF UNPAID
AMOUNT CURRENCY MATURITY PRINCIPAL PRINCIPAL
DATE OF LOAN (if applicable) DATE RATE REPAID BALANCE
- - ---- --------- -------------- --------- ---- ------ -------
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
EXHIBIT D
---------
FORM OF ATTORNEY'S OPINION OF COUNSEL TO BORROWER
Per Section 9.1.5
-------------
[Letterhead of Messrs. Cahill Gordon & Reindel]
Each of the Commercial Banking Institutions
listed on Schedule I hereto
Re: General Signal Corporation Four Year Credit
Agreement, Dated as of January 12, 1994
-------------------------------------------
Gentlemen:
We have acted as counsel to General Signal Corporation, a New York
corporation (the "Company"), in connection with the Four Year Credit Agreement,
dated as of January 12, 1994 ("Agreement"), between you and the Company,
covering loans by you to Borrower to be evidenced by the Notes. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Four Year Credit Agreement.
We have examined originals, photocopies or conformed copies of such
records of the Company and its subsidiaries and such agreements, certificates of
public officials, certificates of officers and representatives of the Company
and its subsidiaries and such other documents as we have deemed relevant and
necessary as a basis for the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all copies submitted to us as
conformed or photocopies. As to various questions of fact material to the
opinions expressed herein, we have relied upon representations, statements or
certificates of public officials, officers and representatives of the Company
and its subsidiaries and others.
We are of the opinion that:
(1) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and in good
standing in the State of Connecticut.
(2) The execution, delivery and performance of the Agreement and the
Notes, and the borrowings by the Company
-2-
pursuant thereto, are within the Company's corporate powers and have been
duly authorized by all necessary corporate action.
(3) No governmental approval of the actions referred to in (2) above
is required.
(4) The actions referred to in (2) above do not contravene or
conflict with any provision of law, the Articles of Incorporation or By-
laws of the Company, or any material agreement, indenture or instrument
which is binding on or applicable to the Company of which we have
knowledge.
(5) The Agreement is, and each of the Notes, when executed and
delivered for the consideration as contemplated by the Agreement will be,
the legally valid and binding obligation of the Company, enforceable
against Borrower in accordance with their respective terms, except that (i)
such enforceability may be limited by generally applicable bankruptcy,
insolvency, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (ii) no
opinion has been requested or is being rendered as to the availability of
equitable remedies, such as, for example, specific performance or
injunctive relief, which are within the discretion of courts of applicable
jurisdiction.
(6) The Company is not (i) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a public utility or a
public utility holding company as defined in the Public Utility Holding
Company Act of 1935.
Our opinion in (4) above is based, in part, upon the accuracy of the
representations contained in Section 13.6 of the Agreement.
------------
We are members of the Bar of the State of New York and we express no
opinion herein with respect to any law other than the laws of the State of New
York and the federal law of the United States.
Very truly yours,
EXHIBIT E
FORM OF DESIGNATION LETTER
, 199
To each of the Banks party to the
Four Year Credit Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of January 12,
1994, among General Signal Corporation (the "Company") and the Banks named
therein (the "Credit Agreement"). Terms used herein and defined in the Credit
Agreement shall have the respective meanings ascribed to such terms in the
Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ("Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Bank's agreement
to extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Bank as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of .
2. The delivery of this Designation Letter, the borrowings under the
Credit Agreement, the execution and delivery of the Notes, and the
performance by the Designated Subsidiary of its obligations under the
Credit Agreement, the Designation Letter and the Notes, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, have received all necessary governmental approval (if any
shall be required), and do not and will not violate, contravene
-2-
or conflict in any material respect with any provision of law or of the
charter or by-laws of the Designated Subsidiary or of any judgment or any
material agreement or indenture binding upon or applicable to the
Designated Subsidiary the contravention of or conflict with which would
materially adversely affect the consolidated financial condition or
continued operations of the Designated Subsidiary as a whole or materially
impair the ability of the Designated Subsidiary to perform any of its
obligations hereunder.
This Designation Letter and the Credit Agreement, and the Notes when
duly executed and delivered by the Designated Subsidiary will be, legal,
valid and binding obligations of the Designated Subsidiary enforceable
against it in accordance with their respective terms, subject only to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of rights of creditors generally.
3. No litigation or arbitration proceedings are pending or, to the
knowledge of the Designated Subsidiary, threatened against the Designated
Subsidiary as to which there is a reasonable likelihood of an adverse
determination and which would reasonably be expected to have a material
adverse effect on the ability of the Designated Subsidiary to pay its debts
(including the Loans made to it under the Credit Agreement) as the same
become due and payable.
4. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required in connection with the execution, delivery or performance by
the Designated Subsidiary of this Designation Letter and the Credit
Agreement except for such authorizations, consents, approvals, licenses,
filings or registrations as have heretofore been made, obtained or effected
and are in full force and effect.
5. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Loan will
not be, (a) an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (b) a
-3-
"holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
Very truly yours,
GENERAL SIGNAL CORPORATION [THE DESIGNATED SUBSIDIARY]
By________________________ By_________________________
Title: Title:
EXHIBIT F
FORM OF ATTORNEY'S OPINION OF
COUNSEL TO A DESIGNATED SUBSIDIARY
Each of the Commercial Banking Institutions
listed on Schedule I hereto
Re: General Signal Corporation Four Year Credit
Agreement Dated as of January 12, 1994
-------------------------------------------
Gentlemen:
We have acted as counsel to [Designated Subsidiary], a
_____________________ corporation (the "Designated Subsidiary"), in connection
with the Four Year Credit Agreement, dated as of January 12, 1994 ("Agreement"),
betweenbppppppppa you and the Company, covering loans by you to Borrower to be
evidenced by the Notes. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Agreement.
We have examined originals, photocopies or conformed copies of such
records of the Designated Subsidiary and such agreements, certificates of public
officials, certificates of officers and representatives of the Designated
Subsidiary and its subsidiaries and such other documents as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In
such examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all copies submitted to us as
conformed or photocopies. As to various questions of fact material to the
opinions expressed herein, we have relied upon representations, statements or
certificates of public officials, officers and representatives of the Designated
Subsidiary and others.
We are of the opinion that:
(1) The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of
_________________________________.
(2) The execution, delivery and performance by the Designated
Subsidiary of the Designation Letter, and the Notes to be executed by the
Designated Subsidiary, and the borrowings by the Designated Subsidiary
pursuant thereto, are within the Designated Subsidiary's corporate powers
-2-
and have been duly authorized by all necessary corporate action.
(3) No governmental approval of the action referred to in (2) above is
required.
(4) The actions referred to in (2) above to not contravene or conflict
with any provision of law, the Charter or By-laws of the Designated
Subsidiary, or any material agreement, indenture or instrument which is
binding on or applicable to the Designated Subsidiary of which we have
knowledge.
(5) The Designation Letter is, and each of the Notes to be executed by
the Designated Subsidiary, when executed and delivered for the
consideration as contemplated by the Agreement will be, the legally valid
and binding obligation of the Designated Subsidiary, enforceable against
Borrower in accordance with their respective terms, except that (i) such
enforceability may be limited by generally applicable bankruptcy,
insolvency, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (ii) no
opinion has been requested or is being rendered as to the availability of
equitable remedies, such as, for example, specific performance or
injunctive relief, which are within the discretion of courts of applicable
jurisdiction.
(6) The Company is not (i) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a public utility or a
public utility holding company has defined in the Public Utility Holding
Company Act of 1935.
Our opinion in (4) above is based, in part, upon the accuracy of the
representations contained in Section 13.6 of the agreement.
------------
Very truly yours,