[EXECUTION COPY]
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AMENDED AND RESTATED
FACILITY A (364-DAY) CREDIT AGREEMENT
Dated as of October 17, 2001
Amended and Restated as of October 16, 2002
between
THE STANLEY WORKS
as Borrower
THE LENDERS REFERRED TO HEREIN,
as Lenders
and
CITIBANK, N.A.
as Administrative Agent
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Runner
and
FLEET NATIONAL BANK
MELLON BANK, N.A.
BNP PARIBAS
as Co-Syndication Agents
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AMENDMENT AND RESTATEMENT dated as of October 16, 2002, relating to the
Amended and Restated Facility A (364-Day) Credit Agreement dated as of October
17, 2001, among THE STANLEY WORKS (the "Borrower"); each of the lenders that is
a signatory hereto (the "Lenders"); and CITIBANK, N.A., as administrative agent
for the Lenders (together with its successors in such capacity, the
"Administrative Agent").
The Borrower, certain Lenders and the Administrative Agent are parties
to a Facility A (364-Day) Credit Agreement dated as of October 17, 2001 (as
heretofore amended and modified, the "Existing Facility A (364-Day) Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by the making of loans) by the Lenders to the Borrower in
an aggregate principal amount not exceeding $250,000,000 at any one time
outstanding. The Borrower, the Lenders and the Administrative Agent wish to
extend the Termination Date as defined in the Existing Facility A (364-Day)
Credit Agreement by 364 days to October 15, 2003 and to amend and restate the
Existing Facility A (364-Day) Credit Agreement in certain other respects; and
accordingly, the parties hereto hereby agree to amend the Existing Facility A
(364-Day) Credit Agreement as set forth herein and to restate the Existing
Credit Agreement as so amended (as so amended and restated, the "Amended and
Restated Credit Facility A (364-Day) Agreement"):
Section 1. Definitions. Terms used but not otherwise defined herein have
the meanings given them in the Existing Facility A (364-Day) Credit Agreement.
Section 2. Amendments. Effective on the Effective Date (as defined
below), the Existing Facility A (364-Day) Credit Agreement is hereby amended as
set forth below, and the Existing Facility A (364-Day) Credit Agreement is
restated to read in its entirety as set forth in the Existing Facility A
(364-Day) Credit Agreement, which is hereby incorporated herein by reference, as
amended as set forth below:
A. References in the Existing Facility A (364-Day) Credit Agreement to
"this Agreement" and words of similar import (including indirect references)
shall be deemed to be references to the Existing Facility A (364-Day) Credit
Agreement as amended and restated hereby.
B. The definition of "Termination Date" in Section 1.01 of the Existing
Facility A (364-Day) Credit Agreement is amended to read in its entirety as
set forth below:
""Termination Date" means the earlier of (a) October 15, 2003 or (b)
the date of termination in whole of the Commitments pursuant to Section
2.01(b) or Section 6.01."
C. Schedule I of the Existing Facility A (364-Day) Credit Agreement is
amended to read in its entirety as set forth in Schedule I hereto.
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
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Section 3. Representations and Warranties. The Borrower represents and
warrants to the Lenders as of the Effective Date that (i) the representations
and warranties set forth in Section 4.01 of the Existing Facility A (364-Day)
Credit Agreement are true and correct on and as of the Effective Date as though
made on and as of the Effective Date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such specific
date) and as if each reference in said Section 4.01 to "this Agreement" included
reference to the Amended and Restated Facility A (364-Day) Credit Agreement and
as if each reference in said Sections 4.01(f) and 4.01(h) to "December 31,
2000" were instead a reference to "December 29, 2001" and as if each reference
in said Sections 4.01(f) and 4. 01(h) to "July 1, 2001" were instead a
reference to "June 29, 2002" and as if each reference in said Sections 4.01(e)
and 4.01(g) to "December 31, 2000" were instead a reference to "December 31,
2001" and (ii) no event has occurred and is continuing that constitutes a
Default or Event of Default (and the parties agree that breach of any of the
representations and warranties in this Section 3 shall constitute an Event of
Default under Section 6.01(b) of the Amended and Restated Facility A (364-Day)
Credit Agreement).
Section 4. Conditions to Effectiveness. The amendment and restatement set
forth in Section 2 hereof shall become effective on the date (the "Effective
Date") on which the Administrative Agent shall notify the Borrower that the
following conditions precedent have been satisfied (and the Administrative Agent
shall promptly notify the Lenders of the occurrence of the Effective Date):
(a) Documents. The Administrative Agent shall have received the following
documents (with sufficient copies for each Lender), each of which shall be
satisfactory to the Administrative Agent in form and substance:
(1) Execution by All Parties. Counterparts of this Amendment and
Restatement, duly executed and delivered by the Borrower, the
Administrative Agent and the Lenders.
(2) Authority and Approvals. Certified copies of the resolutions of
the Board of Directors of the Borrower (or equivalent documents)
authorizing and approving this Amendment and Restatement, authorizing
Borrowings under the Amended and Restated Facility A (364-Day) Credit
Agreement in an aggregate principal amount up to but not exceeding
$250,000,000 at any one time outstanding, and certified copies of all
documents evidencing other necessary action (corporate, partnership or
otherwise) and governmental approvals, if any, with respect to this
Amendment and Restatement.
(3) Secretary's or Assistant Secretary's Certificate. A certificate
of the Secretary or an Assistant Secretary of the Borrower, dated the
Effective
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
-3-
Date, certifying the names and true signatures of the officers of the
Borrower authorized to execute and deliver this Amendment and Restatement
and the other documents to be delivered hereunder.
(4) Opinion of Borrower's Counsel. A favorable opinion of counsel to
the Borrower, in substantially the form of Exhibit A hereto, and as to
such other matters as the Administrative Agent or any Lender acting
through the Administrative Agent may reasonably request.
(5) Closing Certificate. A certificate of a senior financial officer
of the Borrower, dated the Effective Date, certifying the representations
and warranties set forth in Section 3 hereof are true on such date as if
made on and as of such date.
(b) Approvals. The Administrative Agent shall have received evidence
satisfactory to it of receipt of all third party consents and approvals
necessary in connection with this Amendment and Restatement (without the
imposition of any conditions except those that are acceptable to the
Lenders) and that the same remain in effect.
(c) Fees and Expenses. The Administrative Agent shall have received
evidence satisfactory to it that (i) the Borrower shall have paid in full
all accrued fees, expenses and interest due and payable to the
Administrative Agent and the Lenders under the Existing Facility A (364-Day)
Credit Agreement, (ii) the Borrower shall have paid all accrued fees and
expenses of the Administrative Agent (including the reasonable fees and
expenses of counsel to the Administrative Agent) in connection with this
Amendment and Restatement and (iii) the Borrower shall have paid to the
Administrative Agent for account of the Lenders such up-front fees in
connection with the execution of this Amendment and Restatement as the
Borrower and the Administrative Agent shall have agreed upon.
Section 5. Pro Rata Adjustments. The Borrower shall, on the Effective
Date (but only if any Advances are outstanding on said date), borrow Advances
from certain of the Lenders and/or (notwithstanding (i) the second sentence of
Section 2.07(a) of the Amended and Restated Facility A (364-Day) Credit
Agreement requiring that prepayments be made in accordance with said Section
2.07(a) and (ii) Section 2.09(a) of the Amended and Restated Facility A
(364-Day) Credit Agreement requiring that payments be made ratably in accordance
with the principal amounts of the Advances held by the Lenders) prepay Advances
(together with all accrued and unpaid interest thereon) such that, after giving
effect thereto, the Advances (including, without limitation, the principal
amounts and Interest Periods thereof) shall be held by the Lenders ratably in
accordance with their respective Commitments (after giving effect to this
Amendment and Restatement).
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
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Section 6. Miscellaneous. Except as herein provided, the Existing
Facility A (364-Day) Credit Agreement shall remain unchanged and in full force
and effect. This Amendment and Restatement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Amendment and
Restatement by signing any such counterpart. This Amendment and Restatement
shall be governed by, and construed in accordance with, the law of the State of
New York.
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed and delivered as of the day and year first above
written.
THE STANLEY WORKS
By /s/ Craig A. Douglas
-----------------------------
Name: CRAIG A. DOUGLAS
Title: VICE PRES & TREASURER
CITIBANK, N.A., as Administrative
Agent and as Lender
By
-----------------------------
Name:
Title:
FLEET NATIONAL BANK
By
-----------------------------
Name:
Title:
BNP PARIBAS
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed and delivered as of the day and year first above
written.
THE STANLEY WORKS
By
-----------------------------
Name:
Title:
CITIBANK, N.A., as Administrative
Agent and as Lender
By /s/ Carolyn A. Kee
-----------------------------
Name: CAROLYN A. KEE
Title: Vice President
FLEET NATIONAL BANK
By
-----------------------------
Name:
Title:
BNP PARIBAS
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed and delivered as of the day and year first above
written.
THE STANLEY WORKS
By
-----------------------------
Name:
Title:
CITIBANK, N.A., as Administrative
Agent and as Lender
By
-----------------------------
Name:
Title:
FLEET NATIONAL BANK
By /s/ Jeffrey C. Lynch
-----------------------------
Name: JEFFREY C. LYNCH
Title: Managing Director
BNP PARIBAS
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed and delivered as of the day and year first above
written.
THE STANLEY WORKS
By
-----------------------------
Name:
Title:
CITIBANK, N.A., as Administrative
Agent and as Lender
By
-----------------------------
Name:
Title:
FLEET NATIONAL BANK
By
-----------------------------
Name:
Title:
BNP PARIBAS
By /s/ Christopher Criswell
-----------------------------
Name: CHRISTOPHER CRISWELL
Title: Managing Director
By /s/ Arnaud Collin du Bocage
-----------------------------
Name: Arnaud Collin du Bocage
Title: Managing Director
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
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MELLON BANK, N.A.
By /s/ J. Wade Bell
-----------------------------
Name: J. Wade Bell
Title: Vice President
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By
-----------------------------
Name:
Title:
BARCLAYS BANK PLC
By
-----------------------------
Name:
Title:
RBC CENTURA BANK
By
-----------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
MELLON BANK, N.A.
By
-----------------------------
Name:
Title:
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By /s/ Robert P. Kellas
-----------------------------
Name: ROBERT P. KELLAS
Title: VICE PRESIDENT
BARCLAYS BANK PLC
By
-----------------------------
Name:
Title:
RBC CENTURA BANK
By
-----------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
MELLON BANK, N.A.
By
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By
--------------------------------
Name:
Title:
BARCLAYS BANK PLC
By /s/ Nicholas A. Bell
--------------------------------
Name: NICHOLAS A. BELL
Title: DIRECTOR LOAN TRANSACTION
MANAGEMENT
RBC CENTURA BANK
By
--------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
--------------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
MELLON BANK, N.A.
By
-----------------------------
Name:
Title:
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By
-----------------------------
Name:
Title:
BARCLAYS BANK PLC
By
-----------------------------
Name:
Title:
RBC CENTURA BANK
By /s/ E. Mark Stubblefield
-----------------------------
Name: E. MARK STUBBLEFIELD
Title: MARKET MANAGER
THE NORTHERN TRUST COMPANY
By
-----------------------------
Name:
Title:
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
MELLON BANK, N.A.
By
-----------------------------
Name:
Title:
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank)
By
-----------------------------
Name:
Title:
BARCLAYS BANK PLC
By
-----------------------------
Name:
Title:
RBC CENTURA BANK
By
-----------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By /s/ Ross Rockenbach
-----------------------------
Name: Ross Rockenbach
Title: Vice President
AMENDED AND RESTATED FACILITY A (364-DAY) CREDIT AGREEMENT
SCHEDULE I
Lenders and Commitments
-----------------------
Lenders Commitment
- ------- ----------
CITIBANK, N.A. $45,000,000.00
FLEET NATIONAL BANK $40,952,382.00
BNP PARIBAS $40,952,382.00
MELLON BANK, N.A. $40,952,382.00
JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank) $28,571,428.00
BARCLAYS BANK PLC $17,857,142.00
RBC CENTURA BANK $17,857,142.00
THE NORTHERN TRUST COMPANY $17,857,142.00
EXHIBIT A
[FORM OF OPINION OF COUNSEL TO THE BORROWER]
October 16, 2002
To each of the Lenders listed on
Schedule I hereto and
to Citibank, N.A., as
Administrative Agent for the Lenders
Re: The Amended and Restated Facility A (364 Day) Credit Agreement among
The Stanley Works, the Lenders party thereto and Citibank, N.A., as
Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to The Stanley Works, a Connecticut
corporation (the "Borrower"), in connection with the Amendment and Restatement
dated as of even date herewith (the "Amendment and Restatement") of the Facility
A (364-Day) Credit Agreement dated as of October 17, 2001 (the "Facility A
(364-Day) Credit Agreement" and, as amended by the Amendment and Restatement,
the "Amended and Restated Facility A (364-Day) Credit Agreement"), among the
Borrower, the lenders party thereto (the "Lenders") and Citibank, N.A., as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders. This opinion is being delivered pursuant to Section 4(a)(4) of the
Amendment and Restatement. Capitalized terms used herein but not otherwise
defined shall have the meaning set forth in the Amended and Restated Facility A
(364-Day) Credit Agreement.
In rendering the opinions set forth herein, we have examined and relied
on originals or copies of (i) the Amendment and Restatement, (ii) the
certificate executed by the General Counsel of the Borrower dated as of the date
hereof, a copy of which is attached hereto as Exhibit A (the "Borrower's
Certificate"), (iii) a copy of the Borrower's Annual Report on Form 10-K for the
year ended December 29, 2001 (the "Form 10-K") filed with the Securities and
Exchange Commission, (iv) a copy of the Borrower's Quarterly Report on Form 10-Q
for the period ended June 29, 2002 filed with the Securities and Exchange
Commission, (v) the Restated Certificate of Incorporation of the Borrower dated
September 11, 1998, filed with the Connecticut Secretary of the State's office
on September 15, 1998, (vi) the Bylaws of the Borrower as amended through
October 17, 2001, (vii) Resolutions of the Board of Directors of the Borrower
adopted on October 16, 2002, and (viii) a Certificate of Legal Existence of the
Borrower dated October 9, 2002 issued by the Connecticut Secretary of the State.
Furthermore, in rendering the opinions set forth herein we have, with your
consent, relied only upon examination of the documents described above and upon
statements and representations of the
Borrower and its officers and other representatives, including the facts and
conclusions set forth in the Borrower's Certificate and we have made no
independent verification or investigation of the factual matters set forth
therein.
In our examination we have assumed the genuineness of all signatures
including endorsements, the legal capacity of natural persons, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as facsimile, certified or
photostatic copies, and the authenticity of the originals of such copies.
We express no opinion as to the laws of any jurisdiction other than the
Applicable Laws of the States of Connecticut and New York and the United States
of America. "Applicable Laws" shall mean those laws, rules and regulations
which, in our experience, are normally applicable to transactions of the type
contemplated by the Amendment and Restatement without our having made any
special investigation as to the applicability of any specific law, rule or
regulation, and which are not the subject of a specific opinion herein referring
expressly to a particular law or laws. "Governmental Authorities" shall mean any
United States of America, Connecticut or New York executive, legislative,
judicial, administrative or regulatory body. "Governmental Approval" shall mean
any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that as of
the date hereof:
1. The Borrower has been duly incorporated in, and is validly existing
under the laws of, the State of Connecticut.
2. The Borrower has the corporate power and corporate authority to
execute, deliver, and perform its obligations under the Amendment and
Restatement.
3. The execution and delivery of the Amendment and Restatement has
been duly authorized by all requisite corporate action on the part of the
Borrower.
4. The Amendment and Restatement has been duly executed and delivered
by the Borrower and constitutes the valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms under the laws of
the State of New York.
5. Neither the execution, delivery or performance by the Borrower of
the Amendment and Restatement nor the compliance by the Borrower with the terms
and provisions thereof will contravene any provision of any Applicable Law of
the States of New York and Connecticut, or the federal laws of the United States
of America.
6. Based upon our review of Applicable Laws, but without our having
made any special investigation concerning any other law, rule or regulation, no
Governmental Approval which has not been obtained or taken and is not in full
force and effect is required to authorize or is required in connection with the
execution, delivery or performance of the Amendment and Restatement by the
Borrower.
7. Neither the execution, delivery or performance by the Borrower of
the Amendment and Restatement nor the compliance by the Borrower with the terms
and provisions thereof will conflict with, contravene, violate or constitute a
default under (i) to the best of our knowledge, after due investigation, any
provision of any Applicable Contract or any other agreement or instrument to
which the Borrower or the Borrower's property is subject, (ii) any provision of
any Applicable Law, (iii) to the best of our knowledge, after due investigation,
any judicial or administrative order or decree of any Governmental Authority, or
(iv) its Certificate of Incorporation and Bylaws. As used in this paragraph,
"due investigation" means solely that we have reviewed the Certificate of the
Borrower attached hereto as Exhibit A.
8. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
Our opinions are subject to the following assumptions and qualifications:
(a) since we do not represent the Borrower on a regular basis, we have
assumed the accuracy of the description of the Borrower's business set forth in
the Borrower's Form 10-K;
(b) enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, or other similar laws affecting
creditors' rights and remedies generally and by general principles of equity or
the exercise of judicial discretion (regardless of whether enforcement is sought
in equity or at law) including, but not limited to, principles relating to good
faith and fair dealing, commercial reasonableness and the like;
(c) we have assumed that the Amendment and Restatement constitutes the
valid and binding obligation of each party thereto (other than the Borrower)
enforceable against such other party in accordance with its terms;
(d) we express no opinion as to the effect on the opinions expressed
herein of (i) the compliance or non-compliance of the Administrative Agent or
any party (other than the Borrower to the extent expressly set forth herein) to
the Amendment and Restatement with any state, federal or other laws or
regulations applicable to them or (ii) the legal or regulatory status or the
nature of the business of the Administrative Agent;
(e) we express no opinion as to the enforceability of any rights to
contribution or indemnification provided for in the Amendment and Restatement
which are violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation); and
(f) we express no opinion with respect to any provision of the
Amendment and Restatement to the extent it authorizes or permits any purchaser
of a participation interest to setoff or apply any deposit, property or
indebtedness with respect to any participation interest.
In rendering the foregoing opinions, we have assumed, with your consent,
that (a) the execution, delivery, or performance by the Borrower of the
Amendment and Restatement does
not and will not conflict with, contravene, violate or constitute a default
under any rule, law, or regulation to which the Borrower is subject (other than
Applicable Laws, orders, and decrees as to which we express an opinion in
paragraph 7 herein) or any agreement or instrument to which the Borrower or the
Borrower's property is subject (except to the extent that we express an opinion
in paragraph 7 herein); and (b) no authorization, consent or other approval of,
notice to or filing with, any court, governmental authority or regulatory body
(other than Governmental Approvals as to which we express our opinion in
paragraph 6 herein) is required to authorize or is required in connection with
the execution, delivery or performance by the Borrower of the Amendment and
Restatement or the transactions contemplated thereby.
This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. The opinions set
forth herein are rendered as of the date hereof. We assume no obligation to
update any facts or circumstances which may hereafter come to our attention or
any changes in any laws, regulations or court decisions which may hereafter
occur.
This opinion is being furnished only to you in connection with the
Amendment and Restatement and is solely for your benefit and is not to be used,
circulated, quoted or otherwise referred to for any other purpose or relied upon
by any other Person for any purpose without our prior written consent, provided,
that any Person that becomes a Lender pursuant to Section 8.07(a) of the Amended
and Restated Facility A (364-Day) Credit Agreement may rely on this opinion as
if it were addressed to such Person and delivered on the date hereof.
Very truly yours,
Tyler Cooper & Alcorn, LLP
By:
-------------------------
A Partner
SCHEDULE I
Lenders
Citibank, N.A.
Fleet National Bank
BNP Paribas
Mellon Bank, N.A.
JPMorgan Chase Bank
Barclays Bank PLC
RBC Centura Bank
The Northern Trust Company
Exhibit A to
TC&A Opinion
Borrower's Certificate
----------------------
I, Bruce H. Beatt, am General Counsel of The Stanley Works (the
"Borrower"). I understand that pursuant to Section 4(a)(4) of that certain
Amendment and Restatement dated as of October 16, 2002 (the "Amendment and
Restatement") to the Facility A (364-Day) Credit Agreement dated as of October
17, 2001 (the "Facility A (364-Day) Credit Agreement", and, as amended by the
Amendment and Restatement, the "Amended and Restated Facility A (364-Day) Credit
Agreement"), among the Borrower, the lenders party thereto (the "Lenders") and
Citibank, N.A. as administrative agent for the Lenders, Tyler Cooper & Alcorn,
LLP is relying on this certificate and the statements made herein in rendering
certain legal opinions. Capitalized terms used herein but not otherwise defined
shall have the meaning set forth in the Amended and Restated Facility A
(364-Day) Credit Agreement.
With regard to the foregoing, on behalf of the Borrower I certify that:
A. Based solely and exclusively on conversations with Craig A.
Douglas, Treasurer of Borrower;
1. The value of all securities owned by the Borrower (excluding
those issued by majority-owned Subsidiaries of the Borrower) does
not exceed 10% of the value of the Borrower's total assets;
2. Less than 25 percent of the assets of the Borrower on a
consolidated basis and on an unconsolidated basis consist of the
margin stock (as such term is defined in Regulation U of the Board
of Governors of the Federal Reserve System); and
3. The Borrower (a) is primarily engaged, directly or through a
wholly-owned subsidiary or subsidiaries, in a business or
businesses other than that of investing, reinvesting, owning
holding or trading in securities and (b) is not engaged and does
not propose to engage in the business of investing, reinvesting,
owning, holding or trading in securities, and does not own or
propose to acquire investment securities having a value exceeding
40 percent of the value of the Borrower's total assets (exclusive
of government securities and cash items) on an unconsolidated
basis; and
B. Based solely and exclusively on a certain Statement by Holding
Company Claiming Exemption Under Rule U-3A-2 from the Provisions of the Public
Utility Holding Company Act of 1935 (the "Act"), filed by Borrower with the
United States Securities and Exchange Commission on February 28, 2002 (Accession
Number 0000093556-00-000003), Borrower is exempt from the provisions of the Act.
C. Based solely and exclusively on interviews of the officers of the
Borrower responsible for its financing activities and the lawyers under my
supervision, the execution, delivery and performance by the Borrower of any of
its obligations under the Amendment and Restatement and the Amended and Restated
Facility A (364-Day) Credit Agreement does not and will not conflict with,
contravene, violate or constitute a default under (i) any provision of any
Applicable Contract or any other agreement or instrument to which the Borrower
or the Borrower's property is subject, or (ii) any judicial or administrative
order or decree of any Governmental Authority.
IN WITNESS WHEREOF, I have executed this certificate this __ day of
October, 2002.
By:
----------------------------------
Name: Bruce H. Beatt
Title: Vice President, General Counsel
and Secretary