Exhibit 4(v)
CONFORMED COMPOSITE COPY
(See the next three pages for conforming
information and for notes about
Schedule I and Exhibit C-2)
FACILITY A (364 DAY) CREDIT AGREEMENT
dated as of November 15, 1994
between
The Stanley Works
as Borrower
and
The Lender
Named Herein
CONFORMING INFORMATION
Nine separate Facility A (364 Day) Credit Agreements, dated as of November
15, 1994, between The Stanley Works as Borrower and the Lenders named therein
(the "Credit Agreements") pursuant to which the Lenders are committed to loan
money to the Borrower under the terms and conditions set forth therein for a
period of 364 days after the date hereof were executed on page 50 thereof on
behalf of the Borrower by Richard Huck, Vice President, Finance and Chief
Financial Officer and on behalf of the Lenders as set forth below:
CITIBANK, N.A.
By: Paolo de Alessandrini
Title: Vice President
BANQUE NATIONALE DE PARIS
By: Eric Vigne
Title: Senior Vice President
By: Walter Kaplan
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF N.Y.
By: Stephen J. Kenneally
Title: Vice President
J.P. MORGAN DELAWARE
By: Philip S. Detjens
Title: Vice President
ROYAL BANK OF CANADA
By: T.L. Gleason
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: Terence A. Snellings
Title: Senior Vice President
BARCLAYS BANK PLC
By: J.L. Gray
Title: Associate Director
MELLON BANK, N.A.
By: Joseph F. Bond, Jr.
Title: Vice President
SHAWMUT BANK CONNECTICUT, N.A.
By: Paul Veiga
Title: Vice President
Schedule I included in this conformed composite copy is revised from
the version included in the Credit Agreements to reflect a change in phone
numbers for the Eurodollar Lending Office and Uncommiteed Lending Office at
Barclays Bank PLC.
Strikeout and underscoring to Exhibit C-2 show language which will
be deleted or added to each when those documents are issued by the Borrower.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . 2
SECTION 1.01 Certain Defined Terms . . . . . . . . . . . . . . . . 2
SECTION 1.02 Computation of Time Periods . . . . . . . . . . . . . 14
SECTION 1.03 Accounting Terms . . . . . . . . . . . . . . . . . . 14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES. . . . . . .. . . . . . . 14
SECTION 2.01 The Commitment. . . . . . . . . . . . . . . . . . . . 14
SECTION 2.02 Making the Committed Advances. . . . . . . . . . . . 15
SECTION 2.03 Facility Fee. . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.04 Continuation and Conversion. . . . . . . . . . .. . 18
SECTION 2.05 Interest on Advances . . . . . . . . . . . . . . . . 19
SECTION 2.06 Additional Interest on Eurodollar
Rate Advances. . . . . . . . . . . . . . . . . . . . 20
SECTION 2.07 Repayment and Prepayment of
Advances . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.08 Increased Costs. . . . . . . . . . . . . . . . . . . 21
SECTION 2.09 Payments and Computations. . . . . . . . . . . . . . 22
SECTION 2.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.11 Evidence of Debt . . . . . . . . . . . . . . . . . . . 25
SECTION 2.12 Use of Proceeds of Advances. . . . . . . . . . . . . . 25
SECTION 2.13 Uncommitted Advances . . . . . . . . . . . . . . . . . 25
ARTICLE III CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . 29
SECTION 3.01 Condition Precedent to Effectiveness . . . . . . . . . 29
SECTION 3.02 Conditions Precedent to Each Advance. . . . . . . . . 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES . . . . . . .. . . . . . . . 31
SECTION 4.01 Representations and Warranties of
the Borrower . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE V COVENANTS OF THE BORROWER. . . . . . . . . . . . . . . 33
SECTION 5.01 Affirmative Covenants. . . . . . . . . . . . . . . . . 33
SECTION 5.02 Negative Covenants . . . . . . . . . . . . . . . . . . 37
ARTICLE VI EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.01 Events of Default. . . . . . . . . . . . . . . . . . . 40
ARTICLE VII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.01 Amendments, etc. . . . . . . . . . . . . . . . . . . . 43
SECTION 7.02 Notices, etc.. . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.03 No Waiver; Remedies. . . . . . . . . . . . . . . . . . 44
SECTION 7.04 Costs and Expenses; Breakage Indemnifi-
cation . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.05 Sharing of Payments. . . . . . . . . . . . . . . . . . 45
SECTION 7.06 Binding Effect; Assignments . . . . . . . . . . . . . 46
SECTION 7.07 Participations . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.08 Limitation on Assignments and
Participations . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.09 Withholding. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.10 Mitigation . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.11 Governing Law; Waiver of Jury Trial. . . . . . . . . . 49
SECTION 7.12 Execution in Counterparts. . . . . . . . . . . . . . . 49
SECTION 7.13 Submission to Jurisdiction . . . . . . . . . . . . . . 49
SCHEDULE I ADDRESS AND APPLICABLE LENDING OFFICES
EXHIBIT A FORM OF PROMISSORY NOTE (COMMITTED ADVANCES)
EXHIBIT B-1 FORM OF RATE REQUEST
EXHIBIT B-2 FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT D FORM OF PROMISSORY NOTE (UNCOMMITTED ADVANCES)
EXHIBIT E FORM OF QUOTE REQUEST
EXHIBIT F FORM OF QUOTE
EXHIBIT G FORM OF ACCEPTANCE
EXHIBIT H FORM OF OPINION
EXHIBIT I FORM OF CERTIFICATE
FACILITY A (364 DAY) CREDIT AGREEMENT
This Facility A (364 Day) Credit Agreement ("Agreement") is made as of
this 15th day of November, 1994 between The Stanley Works, a Connecticut
corporation (the "Borrower") and the lender signatory hereto (the "Lender").
W I T N E S S E T H
WHEREAS, the Borrower and Citibank, N.A., Morgan Guaranty Trust Company of
New York, J.P. Morgan Delaware, Wachovia Bank of Georgia, N.A., Royal Bank of
Canada, Banque Nationale de Paris and Barclays Bank PLC are each parties to a
Credit Agreement, dated as of April 1, 1992 (each such credit agreement an
"Existing Credit Agreement" and collectively, the "Existing Credit Agreements");
and such parties agree that by their execution of this Agreement and the Other
Credit Agreements referred to herein, their Existing Credit Agreements shall be
terminated and of no further force and effect and that in connection therewith,
the banks named above have agreed to return promptly to the Borrower, the Notes
and the Uncommitted Advance Notes issued under the Existing Credit Agreements.
WHEREAS, the Borrower and Shawmut Bank Connecticut, N.A. are parties to a
credit agreement effective June 1, 1988 (the "Existing Shawmut Agreement") and
such parties agree that by their execution of this Agreement, the Existing
Shawmut Agreement shall be terminated and of no further force and effect.
WHEREAS, the Borrower and Mellon Bank, N.A. are parties to a credit agreement
effective June 1, 1991 (the "Existing Mellon Agreement") and such parties agree
that by their execution of this Agreement, the Existing Mellon Agreement shall
be terminated and of no further force and effect.
WHEREAS, each Existing Credit Agreement, the Existing Shawmut Agreement and
the Existing Mellon Agreement having been terminated, the Borrower desires to
enter into this Agreement and the Other Credit Agreements as well as the
Facility B (Five Year) Credit Agreements with the Lender and the Other Lenders
being executed simultaneously herewith.
NOW THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained herein the Borrower and the Lender hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquiring Person" means any person who is or becomes the beneficial
owner, directly or indirectly, of 10% or more of the Borrower's outstanding
common stock.
"Advance" means a Committed Advance or an Uncommitted Advance.
"Applicable Eurodollar Margin" means, with respect to any Interest
Period for each Eurodollar Rate Advance, (i) .2700% if on the date such
Eurodollar Rate Advance is made the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc. ("Standard and Poors") and A3 or higher by Moody's
Investors Service ("Moody's") and (ii) .2875% if on the date such Eurodollar
Rate Advance is made clause (i) is inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated lower than A- by Standard & Poor's or lower than
A3 by Moody's; provided that for purposes of this definition all references to
any rating agency shall be deemed to be deleted in the event that the Borrower's
outstanding Long-Term Indebtedness is no longer rated by such agency, and clause
(ii) shall be deemed to apply if such Long-Term Indebtedness is no longer rated
by either agency.
"Applicable Facility Fee Rate" means as of any date of payment of the
fee required by Section 2.03 (i) a rate per annum equal to .0800% if on such
date the Borrower's outstanding Long-Term Indebtedness is rated A- or higher by
Standard & Poor's and A3 or higher by Moody's and (ii) a rate per annum equal to
.1500% if on such date clause (i) is inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated lower than A- by Standard & Poor's or lower than
A3 by Moody's; provided that all references to any rating agency shall be deemed
to be deleted in the event that the Borrower's outstanding Long-Term
Indebtedness is no longer rated by such agency, and clause (ii) shall be deemed
to apply if such Long-Term Indebtedness is no longer rated by either agency.
"Applicable Lending Office" means the Lender's Domestic Lending Office
in the case of an Uncommitted Advance or a Base Rate Advance and the Lender's
Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by the Reference Bank in New
York, New York, from time to time, as its base rate;
(b) 1/2 of one percent per annum above the secondary market morning
offering rate in the United States for three-month certificates
of deposit of major United States money market banks, determined
by the Reference Bank, such rate being determined by the
Reference Bank on the basis of quotations for such rates
received by the Reference Bank from three New York certificate of
deposit dealers of recognized standing selected by the Reference
Bank adjusted to the nearest 1/4 of one percent or, if there is
no nearest 1/4 of one percent, to the next higher 1/4 of one
percent; or
(c) 1/2 of one percent above the Federal Funds Rate.
"Base Rate Advance" means an Advance which bears interest as provided
in Section 2.05(a) of this Agreement.
"Borrower" has the meaning provided in the first paragraph of
this Agreement.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings in Dollars are
carried on in the London interbank market.
"Capital Lease" means any lease of property, real or personal, the
obligations under which are capitalized on the consolidated balance sheet of the
Borrower and its Subsidiaries.
"Change of Control" means, with respect to the Borrower, the occurrence
of any event, act or condition which results in either (i) any Person other than
the ESOPs becoming the beneficial owner, directly or indirectly, of 30% or more
of the outstanding common stock of the Borrower or (ii) individuals who
constitute the Continuing Directors ceasing for any reason to constitute at
least the majority of the Board of Directors of the Borrower.
"Commitment" has the meaning set forth in Section 2.01 of this
Agreement.
"Committed Advance" means an advance by the Lender to the Borrower
under Section 2.01 of this Agreement and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of Committed Advance.
"Consolidated Cash Expenditures" has the meaning provided in
Section 5.01(f) of this Agreement.
"Consolidated Cash Flow" has the meaning provided in Section
5.01(f) of this Agreement.
"Consolidated Net Tangible Assets" means the excess over current
liabilities of all assets properly appearing on a consolidated balance sheet of
the Borrower and its Subsidiaries after deducting goodwill, trademarks, patents,
other like intangibles and the minority interests of others in Subsidiaries.
"Consolidated Subsidiary" has the meaning provided in Section
5.01(f) of this Agreement.
"Contingent Obligation" as to any Person means any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Director" means any member of the Board of Directors of the
Borrower who is not affiliated with an Acquiring Person and who is a member of
the Board of Directors of the Borrower immediately prior to the time that the
Acquiring Person became an Acquiring Person and any successor to a Continuing
Director who is not affiliated with the Acquiring Person and is recommended to
succeed a Continuing Director by a majority of Continuing Directors who are then
members of the Board of Directors of the Borrower.
"Default" means an event which would constitute an Event of Default but
for the giving of notice, the lapse of time or both.
"Dollars" and "$" mean lawful money of the United States of
America.
"Domestic Lending Office" means the office of the Lender specified as
its "Domestic Lending Office" opposite its name on Schedule I hereto or such
other office as the Lender may from time to time specify to the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successors thereto, and the regulations
promulgated and the rulings found thereunder.
"ERISA Controlled Group" means a group consisting of any ERISA Person
and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control with such Person
that, together with such Person, are treated as a single employer under
regulations of the PBGC.
"ERISA Person" has the meaning set forth in Section 3(9) of ERISA
for the term "person."
"ERISA Plan" means (i) any Plan that (x) is not a Multiemployer Plan
and (y) has Unfunded Benefit Liabilities in excess of $20,000,000 and (ii) any
Plan that is a Multiemployer Plan.
"ESOPs" means collectively The Savings Plan for Salaried
Employees of The Stanley Works and The Savings Plan for Hourly Paid
Employees of The Stanley Works.
"Eurocurrency Liabilities" has the meaning provided in Regulation
D of the Federal Reserve Board.
"Eurodollar Lending Office" means the office of the Lender specified as
its "Eurodollar Lending Office" opposite its name on Schedule I hereto (or, if
no such office is specified, its Domestic Lending Office), or such other office
as the Lender may from time to time specify to the Borrower.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance, an interest rate per annum equal to the offered rate for deposits
in Dollars as quoted by the British Banker's Association on Telerate page 3750
at 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Eurodollar Rate Advance
and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.05(b) of this Agreement.
"Eurodollar Rate Reserve Percentage" means at any time for any
Eurodollar Rate Advance the reserve percentage applicable at such time under
regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for the Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities.
"Events of Default" has the meaning specified in Section 6.01 of
this Agreement.
"Federal Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as amended from time to time, or any successor thereto.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve Board arranged by Federal fund brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Reference Bank from three Federal funds brokers of
recognized standing selected by the Reference Bank.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"Fixed Rate" has the meaning set forth in Section 2.13(c)(ii)(C)
of this Agreement.
"Fixed Rate Advance" means an Advance which bears interest as provided
in Section 2.05(d) of this Agreement.
"Fixed Rate Auction" means a solicitation of Quotes setting forth Fixed
Rates pursuant to Section 2.13 of this Agreement.
"Floating Rate" means, for any Interest Period for a Floating Rate
Advance, an interest rate per annum equal to the Base Rate in effect from time
to time minus the Floating Rate Margin for such Advance and Interest Period.
"Floating Rate Advance" means an Advance which bears interest as
provided in Section 2.05(c) of this Agreement.
"Floating Rate Auction" means a solicitation of Quotes setting forth
Floating Rate Margins based on the Base Rate pursuant to Section 2.13 of this
Agreement.
"Floating Rate Margin" has the meaning provided in Section
2.13(c)(ii)(B) of this Agreement.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Indebtedness" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business of such Person), (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument, (iii) the
principal component of all Capital Lease obligations of such Person, (iv) the
face amount of all letters of credit issued for the account of such Person and,
without duplication, all unreimbursed amounts drawn thereunder, (v) all
indebtedness of any other Person secured by any Lien on any property owned by
such Person, whether or not such indebtedness has been assumed, (vi) all
Contingent Obligations of such Person, and (vii) all payment obligations of such
Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements.
"Interest Period" means, for each Eurodollar Rate Advance, Floating
Rate Advance and Fixed Rate Advance, the period commencing on the date of such
Advance and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest Period
shall be (a) in the case of a Eurodollar Rate Advance, one, two, three or six
months, (b) in the case of a Fixed Rate Advance, from 14 to 180 days, and (c) in
the case of a Floating Rate Advance, from 30 to 180 days, in each case as the
Borrower may select in the Notice of Borrowing, Quote Request or Notice of
Conversion or Continuation for such Advance, as the case may be; provided, that:
(i) the Borrower may not select any Interest
Period which ends after the Termination Date;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day;
provided that if, in the case of any Interest Period with respect to
any Eurodollar Rate Advance, such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day;
(iii) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iv) below, end on the last Business
Day of a calendar month;
(iv) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date; and
(v) if upon the expiration of any Interest Period with respect to
a Eurodollar Rate Advance, the Borrower has failed to elect a new
Interest Period to be applicable to the respective Advance as provided
above, the Borrower shall be deemed to have elected to convert such
Advance into a Base Rate Advance effective as of the expiration date of
such current Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, or any successor thereto.
"Lender" has the meaning provided in the first paragraph
of this Agreement.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preferential payment arrangement, priority or other security agreement of any
kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same effect as any of the foregoing and the filing of any
financing statement or similar instrument under the Uniform Commercial Code
or comparable law of any jurisdiction, domestic or foreign.
"Long-Term Indebtedness" means the long-term Senior
Unsecured Indebtedness of the Borrower.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition or results of operations of the Borrower and
its Consolidated Subsidiaries taken as a whole.
"Multiemployer Plan" means a Plan which is a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA.
"Note" means the promissory note of the Borrower in substantially
the form of Exhibit A hereto.
"Notice of Borrowing" has the meaning provided in
Section 2.02(b) of this Agreement.
"Notice of Conversion or Continuation" has the meaning
provided in Section 2.04 of this Agreement.
"Obligations" means all obligations, liabilities and indebtedness
of every nature of the Borrower from time to time owing to the Lender under
or in connection with this Agreement, the Note or the Uncommitted Advance
Note.
"Other Commitment" means, in the case of each of the Other
Lenders, the amount of such Other Lender's commitment under Section 2.01(a)
of the Other Credit Agreement to which it is a party.
"Other Credit Agreements" has the meaning provided in
Section 2.01(c) of this Agreement.
"Other Lenders" means Citibank, N.A., Morgan Guaranty Trust
Company of New York, J.P. Morgan Delaware, Wachovia Bank of Georgia, N.A.,
Royal Bank of Canada, Banque Nationale de Paris, Barclays Bank PLC, Mellon
Bank, National Association and Shawmut Bank Connecticut, N.A. (but excluding
the Lender), and such other Persons as provided in Section 7.06 of the Other
Credit Agreements.
"Other Notes" means promissory notes of the Borrower issued
pursuant to Section 2.11 of each of the Other Credit Agreements in connection
with Committed Advances as defined therein.
"Other Taxes" has the meaning provided in Section 2.10
of this Agreement.
"Other Uncommitted Advance Notes" means promissory notes of the
Borrower issued pursuant to Section 2.11 of each of the Other Credit
Agreements in connection with Uncommitted Advances as defined therein.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA, or any successor thereto.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means any employee benefit plan covered by Title IV of
ERISA, the funding requirements of which:
(i) were the responsibility of the Borrower or a member of its
ERISA Controlled Group at any time within the five years immediately
preceding the date hereof,
(ii) are currently the responsibility of the Borrower
or a member of its ERISA Controlled Group, or
(iii) hereafter become the responsibility of the
Borrower or a member of its ERISA Controlled Group,
including any such plans as may have been, or may hereafter be,
terminated for whatever reason.
"Principal Property" means all real property and tangible
personal property constituting a manufacturing plant owned by the Borrower or
any of its Subsidiaries, exclusive of (i) motor vehicles, mobile materials
handling equipment and other rolling stock, (ii) office furnishings and
equipment, information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or
possession of the United States, or any political subdivision or
instrumentality of the foregoing, on which the interest cannot, in the
opinion of tax counsel of recognized standing or in accordance with a ruling
issued by the Internal Revenue Service, be included in gross income of the
holder under Section 103(a)(1) of the Internal Revenue Code (or any successor
to such provision) as in effect at the time of the issuance of such
obligations, (iv) any real property held for development or sale, or (v) any
property and equipment included therein without deduction of any depreciation
reserves which is less than 10% of Consolidated Net Tangible Assets or which
the Board of Directors of the Borrower determines is not material to the
operation of the business of the Borrower and its Subsidiaries taken as a
whole.
"Principal Subsidiary" means any Subsidiary of the Borrower which
has net sales which represent 15% or more of the consolidated net sales of
the Borrower and its Consolidated Subsidiaries taken as a whole.
"Pro Rata Share" means as to the Lender or any Other Lender a
fraction (expressed as a percentage), the numerator of which is such Person's
Commitment or Other Commitment, as the case may be, and the denominator of
which shall be the sum of the Commitment and the Other
Commitments.
"Quote" means an offer by the Lender or an Other Lender to make
an advance under Section 2.13 of this Agreement or Section 2.13 of an Other
Credit Agreement.
"Quote Request" has the meaning set forth in Section
2.13 of this Agreement.
"Ratable Share" has the meaning provided in Section 7.05
of this Agreement.
"Rate Notification" has the meaning set forth in Section
2.02(a).
"Rate Request" has the meaning set forth in Section
2.02(a).
"Reference Bank" means Citibank, N.A., or, if Citibank, N.A. is
no longer the Lender or an Other Lender, such Person (which shall be the
Lender or an Other Lender) as shall be designated by the Borrower with the
consent of the Required Lenders, which consent shall not be unreasonably
withheld.
"Reportable Event" has the meaning set forth in Section 4043(b)
of ERISA (other than a Reportable Event as to which the provision of 30 days
notice to the PBGC is waived under applicable regulations).
"Required Lenders" means the Lender and/or Other Lenders
representing in the aggregate at least 51% of the sum of the Commitment
hereunder and the Other Commitments under the Other Credit Agreements or, if
the Commitment and the Other Commitments shall have terminated, the Lender
and/or Other Lenders representing in the aggregate at least 51% of the sum of
the Advances hereunder and the Advances under the Other Credit Agreements (as
such term is defined therein).
"Senior Unsecured Indebtedness" means Indebtedness that is not
subordinated to any other Indebtedness and is not secured or supported by a
guarantee, letter of credit or other form of credit enhancement.
"Subsidiary" of any Person means (i) any corporation 50% or more
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person, directly or indirectly through
Subsidiaries, is either a general partner or has a 50% or more equity
interest at the time.
"Taxes" has the meaning provided in Section 2.10 of this
Agreement.
"Termination Date" means the date which is 364 days after the
date hereof or such earlier date as the Commitment shall have been terminated
pursuant to this Agreement.
"Termination Event" means (i) a Reportable Event, or (ii) the
initiation of any action by the Borrower, any member of the Borrower's ERISA
Controlled Group or any ERISA Plan fiduciary to terminate an ERISA Plan or
the treatment of an amendment to an ERISA Plan as a termination under ERISA,
or (iii) the institution of proceedings by the PBGC under Section 4042 of
ERISA to terminate an ERISA Plan or to appoint a trustee to administer any
ERISA Plan.
"Type" has the meaning provided in the definitions of
Committed Advance and Uncommitted Advance.
"Uncommitted Advance" means advances made to the Borrower under
Section 2.13 of this Agreement and Section 2.13 of the Other Credit
Agreements and refers to a Floating Rate Advance or a Fixed
Rate Advance, each of which shall be a Type of Uncommitted Advance.
"Uncommitted Advance Note" means the promissory note of the
Borrower in substantially the form of Exhibit D hereto.
"Unfunded Benefit Liabilities" means with respect to any Plan at
any time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA,
exceeds (ii) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan (on the basis of assumptions prescribed by the PBGC for the purpose of
Section 4044 of ERISA).
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment. (a) General. The Lender agrees, on
the terms and conditions hereinafter set forth, to make Committed Advances to
the Borrower from time to time on any Business Day during the period from the
date hereof until the Termination Date not to exceed at any time the amount
specified opposite the Lender's name in Section 3.01(e) (the "Commitment")
minus the Lender's Pro Rata Share of the aggregate principal amount of all
Uncommitted Advances then outstanding. Subject to the terms of this
Agreement, during such period the Borrower may borrow, repay, prepay (as
provided in Section 2.07) and reborrow such amount or any portion thereof.
The Borrower shall not borrow under this Section 2.01(a) unless
contemporaneous borrowings are made under Section 2.01(a) of the Other Credit
Agreements in amounts equal to each Other Lenders' Pro Rata Share of the
aggregate amount to be borrowed on any given day. Except for borrowings which
exhaust the full remaining amount of the Commitment and the Other
Commitments, each borrowing under this Section 2.01(a) or Section 2.01(a) of
the Other Credit Agreements shall be in an aggregate amount of at least
$10,000,000 or a larger whole multiple of $1,000,000.
(b) Termination and Reduction. The Borrower shall have the
right, upon at least two Business Days' notice to the Lender, to terminate in
whole or reduce in part any unused portion of the Commitment. The Borrower
shall not terminate in whole or reduce in part any Other Commitment pursuant
to subsection (b) of Section 2.01 of any Other Credit Agreement unless the
Commitment is simultaneously terminated or reduced on a pro rata basis. Each
partial reduction to the Commitment and the Other Commitments shall be in the
aggregate amount of at least $10,000,000 or a larger whole multiple of
$1,000,000.
(c) Other Credit Agreements. Contemporaneously- with
entering into this Agreement, the Borrower is entering into separate Facility
A (364 Day) Credit Agreements (the "Other Credit Agreements") substantially
identical to this Agreement (the only differences being those relating to the
identity, description and amount of the commitment of the lender thereunder)
with each of the Other Lenders, with each such Other Credit Agreement
establishing the Other Commitment specified opposite the name of the
applicable Other Lender in Section 3.01(e).
SECTION 2.02. Making the Committed Advances. (a) Determination of
Eurodollar Rate. The Borrower may request the Reference Bank, no earlier than
9:00 A.M. (New York City time) and no later than 11:00 A.M. (New York City
time) on the third Business Day before a proposed Eurodollar Rate Advance, to
notify the Borrower of the Eurodollar Rate that would be applicable to a
Committed Advance in the principal amount and with the Interest Period as
described by the Borrower in such request, which request shall be
substantially in the form of Exhibit B-1 (a "Rate Request"). Upon such
request, the Reference Bank shall furnish such interest rate to the Borrower
no later than noon (New York City time) on the second Business Day before the
proposed Eurodollar Rate Advance by delivering to the Borrower a copy of the
related Rate Request setting forth such rate and executed by an authorized
officer of the Reference Bank in the space provided therefor (a "Rate
Notification"). The Borrower shall be entitled to rely on any such
notification and such rate shall be conclusive and binding on the Lender
absent manifest error.
(b) Notice of Borrowing. Each Committed Advance shall be
made on notice by the Borrower to the Lender, given not later than 11:00 A.M.
(New York City time) on the date of the proposed Committed Advance, if such
Committed Advance is to be a Base Rate Advance and no earlier than 9:00 A.M.
(New York City time) and no later than 4:00 P.M. (New York City time) on the
third Business Day prior to such date if such Committed Advance is to be a
Eurodollar Rate Advance. Each such notice of a Committed Advance (a "Notice
of Borrowing") shall be by telecopier, telex or cable, or by telephone
confirmed immediately in writing, in substantially the form of Exhibit B-2
hereto, specifying therein the requested (i) date of such Committed Advance,
(ii) Type of such Committed Advance, (iii) aggregate amount of such Committed
Advance and the other related advances from the Other Lenders pursuant to
Section 2.01 and (iv) in the case of a Eurodollar Rate Advance, the Interest
Period for such Committed Advance. The Lender shall, before 2:00 P.M. (New
York City time) on the date of such Committed Advance, upon fulfillment of
the applicable conditions set forth in Article III, make such Advance
available to the Borrower in same day funds to such account as the Borrower
shall have specified in the related Notice of Borrowing.
(c) Illegality, Etc. Anything in subsection (a)
or (b) above to the contrary notwithstanding,
(i) if the Lender shall, at least one Business Day
before the date of any requested Advance or the date of any
conversion to or continuation of a Eurodollar Rate Advance,
notify the Borrower that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or that any central bank or other governmental authority asserts
that it is unlawful, for the Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar
Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (A) the Lender shall have no obligation to make, or to
convert Advances into, Eurodollar Advances until the Lender shall
notify the Borrower that the circumstances causing such
suspension no longer exist and (B) the Borrower shall be deemed
to have converted all Eurodollar Rate Advances then outstanding
into Base Rate Advances in accordance with Section 2.04 on and as
of the date of the Borrower's receipt of such notice, unless and
to the extent such notice directs that one or more Eurodollar
Advances shall be so converted on the last day of the applicable
Interest Period;
(ii) if the Reference Bank cannot furnish the
Eurodollar Rate for any Eurodollar Rate Advance because of
conditions existing in the London interbank market, the right of
the Borrower to select Eurodollar Rate Advances shall be
suspended until the Reference Bank shall notify the Borrower that
the circumstances causing such suspension no longer exist; and
(iii) if the Required Lenders shall, at least one
Business Day before the date of any requested Eurodollar Rate
Advance, notify the Borrower that the relevant rate of interest
will not adequately reflect the cost to the Required Lenders of
making, funding or maintaining such Advance, the Lender shall
have no obligation to make such Advance until the Required
Lenders shall notify the Borrower that the circumstances causing
such suspension no longer exist.
(d) Effect of Failure to Fulfill Conditions. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Eurodollar Rate Advance, the Borrower shall indemnify the Lender against
any loss, cost or expense incurred by the Lender as a result of any failure
to fulfill on or before the date specified in such Notice of Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding anticipated profits), cost or expense
reasonably incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by the Lender to fund such Advance when such Advance,
as a result of such failure, is not made on such date, such indemnity to be
paid promptly upon receipt by the Borrower of a certificate of the Lender
setting forth the calculation of the amount of the indemnity claimed by the
Lender.
SECTION 2.03. Facility Fee. The Borrower agrees to pay to the
Lender a facility fee on the amount of the Commitment at the Applicable
Facility Fee Rate, payable quarterly in arrears on the last day of each
March, June, September and December during the term of the Commitment and on
the Termination Date. All computations of the facility fee shall be based on
a year of 365 or 366 days, as the case may be.
SECTION 2.04. Continuation and Conversion. (a) General. Subject
to the other provisions hereof, the Borrower shall have the option (i) to
convert all or any part of an outstanding Base Rate Advance to a Eurodollar
Rate Advance, (ii) to convert all or any part of an outstanding Eurodollar
Rate Advance to a Base Rate Advance, or (iii) to continue all or any part of
an outstanding Eurodollar Rate Advance as a Eurodollar Rate Advance for an
additional Interest Period; provided, that no Eurodollar Rate Advance shall
be so converted other than as contemplated by Section 2.02(c) or continued,
until the expiration of the Interest Period applicable thereto.
(b) Notice of Conversion or Continuation. In order to elect
to convert or continue a Committed Advance hereunder, the Borrower shall
deliver an irrevocable notice thereof (a "Notice of Conversion or
Continuation") to the Lender by telecopier, telex or cable or by telephone
confirmed immediately in writing, no later than (i) 11:00 A.M., (New York
City time) on the proposed conversion date in the case of a conversion to a
Base Rate Advance and (ii) no earlier than 9:00 A.M. (New York City time) and
no later than 4:00 P.M. (New York City time) on the third Business Day in
advance of the proposed conversion or continuation date in the case of a
conversion to, or a continuation of, a Eurodollar Rate Advance, substantially
in the form of Exhibit C hereto. A Notice of Conversion or Continuation shall
specify (w) the requested conversion or continuation date (which shall be a
Business Day), (x) the amount and Type of the Advance to be converted or
continued, (y) whether a conversion or continuation is requested, and (z) in
the case of a conversion to, or a continuation of, a Eurodollar Rate Advance,
the requested Interest Period. The relevant Eurodollar Rate for such Interest
Period in the case of a conversion to, or a continuation of, a Eurodollar
Rate Advance, shall be determined in the manner provided in Section 2.02(a)
as if such conversion or continuation is instead a new Eurodollar Advance for
in such amount, on such date and for such Interest Period). If the Borrower
fails to give a Notice of Conversion or Continuation with respect to an
outstanding Eurodollar Rate Advance as provided in clause (ii) above, the
Borrower shall be deemed to have converted such Eurodollar Rate Advance into
a Base Rate Advance in accordance with this Section 2.04 if such Advance is
outstanding after the last day of the Interest Period with respect thereto.
SECTION 2.05. Interest on Advances. The Borrower shall pay
interest on the unpaid principal amount of each Advance from the date of such
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate
Advance, a rate per annum equal to the Base Rate in effect from time to time,
payable on the last Business Day of each fiscal quarter during the period
such Base Rate Advance remains outstanding and on the date such Base Rate
Advance shall be paid in full;
(b) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during the
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Eurodollar Margin for such Advance,
payable on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day which occurs during
such Interest Period every three months from the first day of such Interest
Period;
(c) Floating Rate Advances. If such Advance is a Floating
Rate Advance, a rate per annum equal at all times during the Interest Period
for such Advance to the Floating Rate for such Interest Period quoted by the
Lender in accordance with Section 2.13, payable on the last Business Day of
such Interest Period and, if such Interest Period has a duration of more than
three months, on each day which occurs during such Interest Period every
three months from the first day of such Interest Period;
(d) Fixed Rate Advances. If such Advance is a Fixed Rate
Advance, a rate per annum equal at all times during the Interest Period for
such Advance to the Fixed Rate for such Interest Period quoted by the Lender
in accordance with Section 2.13, payable on the last day of such Interest
Period and, if such Interest Period has a duration of more than three months,
on each day which occurs during such Interest Period every three months from
the first day of such Interest Period; and
(e) Default Rate. In the event that, and for so long as,
any Event of Default shall have occurred and be continuing, the outstanding
principal amount of all Advances and, to the extent permitted by law, overdue
interest in respect of all Advances, shall bear interest at a rate per annum
equal to the sum of two percent (2%) plus the interest rate otherwise
applicable hereunder to such principal amount in effect from time to time. In
the event that, and for so long as, any Default under Section 6.01(a) shall
have occurred and be continuing, the outstanding principal amount of the
Advance with respect to which such Default has occurred and is continuing
shall bear interest at a rate per annum equal to the sum of two percent (2%)
plus the interest rate otherwise applicable hereunder to such principal
amount in effect from time to time.
SECTION 2.06. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to the Lender, during each period the Lender shall be
required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance outstanding during such period, from the later of the
date such reserves are required and the making of such Advance until the
earlier of the date such reserves are no longer required and such principal
amount is paid in full, at an interest rate per annum equal at all times to
the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period applicable to such Advance from (ii) the rates obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the average
Eurodollar Rate Reserve Percentage of the Lender during such period, payable
on each date on which interest is payable on such Advance. The Lender shall
determine the amount of such additional interest, if any, and promptly notify
the Borrower of the amount thereof.
SECTION 2.07. Repayment and Prepayment of Advances. (a) The
principal amount of all Advances shall mature and become due and payable, in
the case of Committed Advances, on the Termination Date, and in the case of
an Uncommitted Advance, on the last day of the Interest Period with respect
thereto. The Borrower shall have no right to prepay any principal amount of
any Advances other than as provided in this Section 2.07. Subject to Section
2.09(e), the Borrower may, upon at least two Business Days' notice to the
Lender stating the proposed date and principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding principal
amounts of any Committed Advance in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that the amount of any such prepayment, together with the
amount of prepayments required to be made in connection therewith under the
Other Credit Agreements and Section 2.09(e), shall be in the aggregate amount
of at least $10,000,000 or a larger whole multiple of $1,000,000 and, in the
case of a payment or prepayment of a Eurodollar Rate Advance other than on
the last day of the Interest Period for such Advance as provided herein,
shall have the consequences set forth in Section 7.04(b).
(b) The Borrower shall notify the Lender immediately upon
becoming aware of any Change of Control. Upon receipt of such notice and for
a period of 90 days thereafter, the Lender shall be entitled, by written
notice to the Borrower received within such period, to terminate the
Commitment in whole and require the Borrower to prepay all outstanding
Advances within 5 Business Days of its receipt of such notice, together with
any accrued and unpaid interest thereon to the date of such prepayment and
any other amounts due hereunder. In the event that any Other Lender exercises
its right to require such termination and prepayment under Section 2.07(b) of
any Other Credit Agreement, the Lender acknowledges and agrees that the
Borrower shall be entitled to enter into a credit agreement substantially
identical to this Agreement (the only differences being those relating to the
identity, description and amount of the commitment of the lender thereunder)
with any other Person (other than the Borrower or any affiliate of the
Borrower) providing for a commitment not to exceed the commitment of such
Other Lender, and such credit agreement, the related notes, such Person and
such commitment shall be deemed to constitute, respectively, an Other Credit
Agreement, Other Note, Other Uncommitted Advance Note, Other Lender and Other
Commitment hereunder. Notwithstanding any other provision contained herein, a
Change of Control shall not, in and of itself, constitute a Default
hereunder. Copies of notices delivered to the Borrower by any Other Lenders
pursuant to Section 2.07(b) of the Other Credit Agreements shall be delivered
by the Borrower to the Lender promptly upon receipt thereof.
SECTION 2.08. Increased Costs. (a) Changes in Law, Etc. If, due
to (i) the introduction of or any change in or in the interpretation of any
law or regulation on or after the date of this Agreement, or (ii) the
compliance with any guideline or request not applicable on the date of this
Agreement from any central bank or other governmental authority (whether or
not having the force of law), there shall be any increase in the cost to the
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances, then the Borrower shall from time to time, promptly upon demand by
the Lender accompanied by the certificate described in the next sentence, pay
to the Lender additional amounts sufficient to compensate the Lender for such
increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower by the Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) Capital Adequacy. If, due to (i) the introduction of or
any change in or in the interpretation of any law or regulation on or after
the date of this Agreement, or (ii) the compliance with any guideline or
request not applicable on the date of this Agreement from any central bank or
other governmental authority (whether or not having the force of law), the
Lender determines that the amount of capital required or expected to be
maintained by the Lender or any corporation controlling the Lender has been
or would be affected and that the amount of such capital is increased by or
based upon the existence of the Lender's commitment to lend hereunder and
other commitments of this type, then, upon demand by the Lender received by
the Borrower within such time from the relevant change or introduction
described above as is reasonably required in order to determine the effect
thereof accompanied by a certificate of the Lender as to the amounts
demanded, the Borrower shall pay to the Lender, from time to time as
specified by the Lender, additional amounts sufficient to compensate the
Lender or such corporation, as the case may be, to the extent that the Lender
reasonably determines such increase in capital to be allocable to the
existence of the Lender's commitment to lend hereunder, such amounts to be
due and payable within 2 days of the Lender's invoice therefor. A Certificate
as to such amounts submitted to the Borrower by the Lender shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.09. Payments and Computations. (a) Manner of
Payment. The Borrower shall make each payment hereunder not later
than 11:00 A.M. (New York City time) on the day when due in Dollars
in same day funds.
(b) Set-Off. The Borrower hereby authorizes the Lender, if
and to the extent payment owed to the Lender is not made when due hereunder,
to charge from time to time against any or all of the Borrower's accounts
with the Lender any amount so due.
(c) Interest. All computations of interest based on the
Base Rate shall be made by the Lender on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurodollar Rate or with respect to Uncommitted Advances and all computations
of interest pursuant to Section 2.06 shall be made by the Lender on the basis
of a year of 360 days, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest is payable. Each determination by the Reference Bank of an
interest rate for any Committed Advance hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Business Days. Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, that if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the
next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Pro Rata Payments, Etc. The Borrower shall not make any
payments or prepayments of principal of or interest on Committed Advances or
facility fees, or continue or convert any Committed Advance, in each case
under any Other Credit Agreement unless corresponding payments, prepayments,
continuations or conversions, as the case may be, are made hereunder
representing the Lender's Pro Rata Share of the total amount of such
payments, prepayments, continuations or conversions. No payments or
prepayments of Committed Advances or facility fees shall be made hereunder
unless the Borrower complies with Section 2.09(e) of each Other Credit
Agreement. No conversions or continuations shall be made under Section 2.04
unless the Borrower complies with Section 2.09(e) of each Other Credit
Agreement. This subsection (e) shall not apply to payments made in connection
with a prepayment pursuant to Section 2.07(b) or conversions pursuant to
Section 2.02(c).
(f) Rate Information. The Reference Bank shall notify the
Borrower of the Base Rate in effect on the first Business Day on which a Base
Rate or Floating Rate Advance is outstanding and each day on which a change in
the Base Rate occurs, each in sufficient detail to enable the Borrower to
calculate interest payments hereunder with respect to Base Rate Advances and
Floating Rate Advances, and shall provide such information to any Other Lender
promptly upon its request. The Borrower will provide to the Lender (i) (unless
the Lender is the Reference Bank) promptly upon receipt thereof copies of the
information received by the Borrower pursuant to the immediately preceding
sentence or any Rate Notification received pursuant to Section 2.02(a), (ii)
promptly upon the making of any interest payment with respect to a Base Rate
Advance or a Floating Rate Advance hereunder a schedule based on such
information setting forth the Base Rate for each day in the period in which such
Advance was outstanding, and (iii) promptly upon obtaining knowledge thereof,
notice of any change in the rating assigned by Standard & Poor's or Moody's to
the Borrower's Long-Term Indebtedness and the date of such change provided, that
the Borrower's failure to provide any of the foregoing information shall be
deemed not to be a Default or Event of Default hereunder.
SECTION 2.10. Taxes. (a) General. Any and all payments by the
Borrower hereunder shall be made in accordance with Section 2.09, free and clear
of and without deduction for any and all taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, not in effect
or not imposed on the date of this Agreement; excluding taxes imposed on the
Lender's income, and franchise taxes imposed on it by the jurisdiction under the
laws of which the Lender is organized or any political subdivision thereof and
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
(b) Other Taxes. In addition, the Borrower agrees to pay any
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement not in effect or not imposed on the date of this Agreement
(hereinafter referred to as "Other Taxes") upon notice from the Lender.
(c) Tax Indemnity. The Borrower will indemnify the Lender for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.10) paid by the Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Lender makes
written demand therefor.
(d) Receipt. Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Lender, at its address referred to in
Section 7.02, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.10 shall survive the payment in full of
principal and interest hereunder.
SECTION 2.11. Evidence of Debt. The Committed Advances shall be
evidenced by the Note and the Uncommitted Advances shall be evidenced by the
Uncommitted Advance Note, in each case delivered to the Lender pursuant to
Article III. The entries made in the Note and the Uncommitted Advance Note shall
be conclusive and binding for all purposes absent manifest error.
SECTION 2.12. Use of Proceeds of Advances. The
Borrower will use the proceeds of the Advances for general corporate
purposes.
SECTION 2.13. Uncommitted Advances.
(a) The Uncommitted Advances Option. In addition to Committed
Advances pursuant to Section 2.01, the Borrower may, as set forth in this
Section 2.13, request the Lender (and the Other Lenders) to make offers to make
Uncommitted Advances to the Borrower. The Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.13. The Uncommitted Advances may be Floating Rate Advances or Fixed Rate
Advances.
(b) Quote Request. When the Borrower wishes to request offers
to make Uncommitted Advances, it shall transmit to the Lender and the Other
Lenders a quote request substantially in the form of Exhibit E hereto (a "Quote
Request") so as to be received (x) no earlier than 9:00 A.M. (New York City
time) and no later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of borrowing proposed therein, in the case of a Fixed Rate
Auction or (y) no later than 11:00 A.M. (New York City time) on the Business Day
immediately preceding the proposed date of borrowing proposed therein, in the
case of a Floating Rate Auction, specifying:
(i) the proposed date of borrowing, which
shall be a Business Day;
(ii) the proposed aggregate amount of such
borrowing, which shall be $10,000,000 or a larger whole
multiple of $1,000,000; and
(iii) the duration of the proposed Interest Period
applicable thereto subject to the provisions of the definition of
Interest Period.
The Borrower may request offers to make Uncommitted Advances for more than one
Interest Period in a single Quote Request. No Quote Request shall be given
within five Business Days of any other Quote Request.
(c) Submission and Contents of Quotes.
(i) The Lender may but shall not be required to submit a
Quote containing an offer or offers to make an Uncommitted Advance
in response to any Quote Request. Each Quote must comply with the
requirements of this Section 2.13(c) and must be submitted to the
Borrower in writing (including by telecopy) no later than (A) 12:00
noon (New York City time) on the third Business Day prior to the
proposed date of borrowing in the case of a Fixed Rate Auction or
(B) 12:00 noon (New York City time) on the Business Day immediately
preceding the proposed date of borrowing, in the case of a Floating
Rate Auction. Any Quote so made shall be irrevocable except with the
written consent of the Borrower.
(ii) A Quote may set forth each separate offer by the
Lender with respect to each Interest Period specified in the related
Quote Request. Each Quote shall be in substantially the form of
Exhibit F hereto, and shall in any case specify:
(A) the principal amount of the Uncommitted
Advance for each such offer, which principal amount (1) may be
greater than or less than the Commitment of the Lender, (2) must be
a whole multiple of $1,000,000, (3) may not exceed (but may be less
than) the proposed principal amount of Uncommitted Advances set
forth in the related Quote Request, and (4) may be subject to an
aggregate limitation as to the principal amount of Uncommitted
Advances for which offers being made by the Lender may be accepted;
(B) in the case of a Floating Rate Auction, the
margin below the Base Rate (the "Floating Rate Margin") offered for
each such Uncommitted Advance expressed as a percentage (specified
to the nearest 1/1,000th of 1%) to be subtracted from such Base
Rate; and
(C) in the case of a Fixed Rate Auction, the
rate of interest per annum (specified to the nearest 1/1,000th of
1%) (the "Fixed Rate") offered for each such Uncommitted Advance.
(iii) Any Quote shall be disregarded if it:
(A) is not substantially in conformity with the
format described in the relevant Quote Request or does not specify
all of the information required by Section 2.13(c)(ii);
(B) contains qualifying, conditional
or similar language;
(C) proposes terms other than or in addition to those
set forth in the applicable Quote Request; or
(D) is received by the Borrower after the time
set forth in Section 2.13(c)(i).
(d) Acceptance and Notice by Borrower. Not later than (i) 1:00
p.m. (New York City time) on the third Business Day prior to the proposed date
of borrowing, in the case of a Fixed Rate Auction or (ii) 1:00 p.m. (New York
City time) on the Business Day immediately preceding the proposed date of
borrowing, in the case of a Floating Rate Auction, the Borrower shall notify the
Lender of its acceptance or non-acceptance of the offers so notified to it
pursuant to Section 2.13(c) substantially in the form of Exhibit G hereto;
provided that if the Borrower shall fail to so notify the Lender by the times
set forth above, the Borrower shall be deemed to have notified the Lender of its
non-acceptance of each such offer. In the case of acceptance, each such notice
shall specify the aggregate principal amount of offers that are accepted. The
Borrower may accept any such offer in whole or in part; provided that:
(i) the aggregate principal amount of each borrowing of
Uncommitted Advances may not exceed the applicable amount set forth
in the related Quote Request;
(ii) the principal amount of Uncommitted Advances made
on a single Business Day must be $10,000,000 or a larger whole
multiple of $1,000,000;
(iii) acceptance of offers from the Lender and the Other
Lenders may only be made on the basis of ascending Floating Rate
Margins or Fixed Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is
described in Section 2.13(c)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(e) Allocation. If offers are made by the Lender and one or
more Other Lenders with the same Floating Rate Margins or Fixed Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which such offers are accepted, the principal amount of Uncommitted Advances
in respect of which such offers are accepted shall be allocated by the Borrower
among the Lender and such Other Lenders as nearly as possible (in such
multiples, not less than $1,000,000, as it may deem appropriate) in proportion
to the aggregate principal amounts of such offers. Determinations by the
Borrower of the amounts of Uncommitted Advances shall be binding and conclusive
in the absence of manifest error. The Borrower shall promptly notify the Lender
of any allocation pursuant to this Section 2.13(e).
(f) Funding. In the case of an Uncommitted Advance as to which
the Borrower has accepted the Lender's offer under clause (d) above, before
12:00 noon (New York City time) on the date of such Uncommitted Advance, the
Lender shall, upon fulfillment of the applicable conditions set forth in Article
III, make such funds available to the Borrower in same day funds to such account
as the Borrower shall have specified in the related notice delivered pursuant to
Section 2.13(d).
(g) Lender Information. Promptly upon the Lender's request,
the Borrower shall inform the Lender as to the identity of any Other Lender and
the applicable rate of interest charged thereby with respect to Uncommitted
Advances made by any such Other Lender.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effectiveness. The
effectiveness of this Agreement is subject to the condition precedent that the
Lender shall have received the following, in form and substance satisfactory to
the Lender:
(a) Note. The Note and the Uncommitted Advance
Note;
(b) Resolutions, Etc. Certified copies of
documents evidencing all necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Note and the
Uncommitted Advance Note;
(c) Incumbency. A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement, the Note, the
Uncommitted Advance Note and the other documents to be delivered hereunder;
(d) Legal Opinion. An opinion of counsel to the
Borrower substantially in the form of Exhibit H; and
(e) Other Credit Agreements. Conformed copies (or a composite
conformed copy) of the Other Credit Agreements providing for the Other
Commitments by the Other Lenders in the amounts set forth below opposite the
name of such Other Lenders:
Name Amount
Citibank, N.A. $15,000,000
Banque Nationale de Paris $10,000,000
Morgan Guaranty Trust Company of
New York $ 5,000,000
J.P. Morgan Delaware $ 5,000,000
Royal Bank of Canada $10,000,000
Wachovia Bank of Georgia, N.A. $10,000,000
Barclays Bank PLC $ 3,000,000
Mellon Bank, N.A. $ 5,000,000
Shawmut Bank Connecticut, N.A. $ 5,000,000
together with a certificate of each Other Lender substantially in the form of
Exhibit I hereto.
SECTION 3.02. Conditions Precedent to Each Advance. The obligation
of the Lender to make each Advance (including the initial Advance) shall be
subject to the further conditions precedent that on the date of such Advance the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing or the notice of acceptance under Section 2.13(d), as the
case may be, and the acceptance by the Borrower of the proceeds of such Advance
shall constitute a representation and warranty by the Borrower that on the date
of such Advance the following statements shall be true): (i) the representations
and warranties contained in Section 4.01 are correct in all material respects on
and as of the date of such Advance, before and after giving effect to such
Advance and to the application of the proceeds therefrom, as though made on and
as of such date, and (ii) no event has occurred and is continuing, or would
result from such Advance or from the application of the proceeds therefrom,
which would constitute an Event of Default, or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) Corporate Existence. The Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Connecticut.
(b) Corporate Authorization, Etc. The execution, delivery and
performance by the Borrower of this Agreement, the Note and the Uncommitted
Advance Note are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) the
Borrower's charter or by-laws or (ii) any law or contractual restriction binding
on or affecting the Borrower or any of its Subsidiaries.
(c) No Approvals. No authorization, approval or action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of this
Agreement, the Note or the Uncommitted Advance Note.
(d) Enforceability. This Agreement is and upon issuance and
delivery thereof in accordance with Article III the Note and the Uncommitted
Advance Note will be the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms.
(e) Financial Information. The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of January 1, 1994 and the
related statements of income and retained earnings of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which have
been furnished to the Lender, fairly present in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries as of such
date and the results of the operations of the Borrower and its Consolidated
Subsidiaries for the period ended on such date, all in accordance with GAAP
consistently applied.
(f) No Litigation. Except as disclosed or otherwise reflected
in the Borrower's Annual Report on Form 10-K for the year ended January 1, 1994,
there is no pending or (to the best of the Borrower's knowledge) threatened
action or proceeding against the Borrower or any of its Subsidiaries or relating
to any of their respective properties before any court, governmental agency or
arbitrator, which could reasonably be expected to have a Material Adverse Effect
or which purports to affect the legality, validity or enforceability of this
Agreement, the Note, the Uncommitted Advance Note, any Other Credit Agreement or
any Other Note.
(g) No Material Adverse Effect. Since January 1,
1994, there has been no event, act or condition which has had a
Material Adverse Effect.
(h) Environmental Matters. Except as disclosed or otherwise
reflected in the Borrower's Annual Report on Form 10-K for the year ended
January 1, 1994, neither the Borrower nor any of its Subsidiaries has received
notice or otherwise obtained knowledge of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential or
actual liability which could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect arising in connection with (i) any
non-compliance with or violation of the requirements of any applicable federal,
state or local environmental health or safety statutes or regulations, or (ii)
the release or threatened release of any toxic or hazardous waste, substance or
constituent into the environment.
(i) Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(j) Disclosure. The information furnished in writing by or on
behalf of the Borrower to the Lender in connection with the negotiation,
execution and delivery of this Agreement does not contain any material
misstatements of fact or omit to state a material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(k) No Defaults. The Borrower (i) is not in default under or
with respect to this Agreement, the Note, the Uncommitted Advance Note, the
Other Credit Agreements, the Other Notes and the Other Uncommitted Advance Notes
and (ii) is not in default under or with respect to any other agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect which could reasonably be expected to result in
a Material Adverse Effect.
(l) Use of Proceeds. All proceeds of each Advance will be used
by the Borrower only in accordance with the provisions of Section 2.12. Neither
the making of any Advance nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulation G, U or X of the Federal Reserve
Board.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance or any other amount owing hereunder shall remain unpaid or
the Lender shall have any Commitment hereunder:
(a) Financial Information. The Borrower will
furnish to the Lender:
(i) Quarterly Financial Statements. Within 50 days after
the close of each quarterly accounting period in each fiscal year of
the Borrower, the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarterly period and
the related consolidated and consolidating statements of income,
retained earnings and cash flows for such quarterly period and for
the elapsed portion of the fiscal year ended with the last day of
such quarterly period, in each case setting forth comparative
figures for the related periods in the prior fiscal year.
(ii) Annual Financial Statements. Within 95 days after
the close of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as
at the end of such fiscal year and the related consolidated
statement of income, retained earnings and cash flows for such
fiscal year, setting forth comparative figures for the preceding
fiscal year and reported on without qualification by independent
certified public accountants of recognized national standing, in
each case together with a report of such accounting firm stating
that in the course of its regular audit of the consolidated
financial statements of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event of
Default, or if in the opinion of such accounting firm such a Default
or Event of Default has occurred and is continuing, a statement as
to the nature thereof.
(iii) Officer's Certificates. At the time of the
delivery of the financial statements under clauses (i) and (ii)
above, a certificate of the chief financial officer of the Borrower
which certifies (x) that such financial statements fairly present
the financial condition and the results of operations of the
Borrower and its Subsidiaries on the dates and for the periods
indicated, and (y) that such officer has reviewed the terms of this
Agreement and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the business and
condition of the Borrower and its Consolidated Subsidiaries during
the accounting period covered by such financial statements, and that
as a result of such review such officer has concluded that no
Default or Event of Default has occurred during the period
commencing at the beginning of the accounting period covered by the
financial statements accompanied by such certificate and ending on
the date of such certificate or, if any Default or Event of Default
has occurred, specifying the nature and extent thereof and, if
continuing, the action the Borrower proposes to take in respect
thereof. Such certificate shall set forth the calculations required
to establish whether the Borrower was in compliance with the
provisions of Section 5.01(f) for the twelve-month period ending as
at the end of the accounting period covered by the financial
statements accompanied by such certificate.
(iv) Notice of Default or Litigation. Promptly after the
Borrower obtains knowledge thereof, notice of (i) the occurrence of
any Default or Event of Default, or (ii) any litigation or
governmental proceeding pending or threatened against the Borrower
or other event, act or condition which could reasonably be expected
to result in a Material Adverse Effect.
(v) SEC Filings. Promptly upon transmission thereof,
copies of all regular and periodic financial information, proxy
materials and other information and reports, if any, which the
Borrower shall file with the Securities and Exchange Commission or
any governmental agencies substituted therefor or which the Borrower
shall send to its stockholders.
(vi) Other Information. From time to time,
and as soon as reasonably practicable, such other
information or documents (financial or otherwise) as the
Lender may reasonably request.
(b) Compliance with Law. The Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable laws, rules, statutes,
regulations, decrees and orders of all governmental bodies, domestic or foreign,
in respect of the conduct of their business and the ownership of their property,
except such non-compliance as could not reasonably be expected to result in a
Material Adverse Effect at the time of such noncompliance or in the foreseeable
future.
(c) Payment of Taxes. The Borrower shall pay or cause to be
paid, and shall cause each of its Subsidiaries to pay or cause to be paid, when
due, all taxes, charges and assessments and all other lawful claims required to
be paid by the Borrower or such Subsidiaries, except (x) as contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
have been established with respect thereto in accordance with GAAP and (y) where
such nonpayment could not reasonably be expected to result in a Material Adverse
Effect.
(d) Preservation of Corporate Existence. The Borrower shall,
and shall cause each of its Subsidiaries to, do all things necessary to
preserve, renew and keep in full force and effect its corporate existence and
the licenses, permits, rights and franchises necessary to the proper conduct of
its business, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the date of this Agreement.
(e) Maintenance of Books and Records. The Borrower will
maintain financial records in accordance with GAAP, consistently applied. The
representatives of the Lender shall have the right to visit and inspect any of
the properties of the Borrower and of any of its Subsidiaries, to examine their
books of account and records and take notes and make transcripts therefrom, and
to discuss their affairs, finances and accounts with, and be advised as to the
same by, their officers at such reasonable times and intervals as may be
requested.
(f) Financial Condition. The Borrower shall cause Consolidated
Cash Flow to equal or exceed 125% of Consolidated Cash Expenditures at the end
of each fiscal quarter for the twelve-month period then ended. The defined terms
used in this clause (f) shall be construed in accordance with GAAP and as
follows:
(i) "Consolidated Cash Flow" means for any fiscal period
the sum of (A) consolidated earnings before income taxes of the
Borrower and its Consolidated Subsidiaries for such fiscal period
(including any earnings representing net gain on disposition of
assets) before extraordinary items and their tax effects and before
income from discontinued operations; (B) to the extent such amount
is greater than zero, (x) consolidated interest expense for the
Borrower and its Consolidated Subsidiaries for such fiscal period,
minus (y) consolidated interest earnings for the Borrower and its
Consolidated Subsidiaries for such fiscal period; and (C)
consolidated depreciation and amortization for the Borrower and its
Consolidated Subsidiaries for such fiscal period; and
(ii) "Consolidated Cash Expenditures" means for any
fiscal period the sum of (A) consolidated interest expense of the
Borrower and its Consolidated Subsidiaries, (B) consolidated capital
expenditures of the Borrower and its Consolidated Subsidiaries and
(C) the aggregate amount of all dividends paid or declared by the
Borrower on any of its capital stock during such fiscal period; and
(iii) "Consolidated Subsidiary" means at any date any
Subsidiary or other entity the financial statements of which would,
under GAAP, be consolidated with those of the Borrower in its
consolidated financial statements as of such date.
SECTION 5.02. Negative Covenants. So long as any
Advance or any other amount owing hereunder shall remain unpaid or
the Lender shall have any Commitment hereunder:
(a) No Liens. The Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist, directly or
indirectly, any Lien on any Principal Property now owned or hereafter acquired
(unless the Borrower secures the Advances made hereunder and the advances made
under the Other Credit Agreements equally and ratably with such Lien), other
than:
(i) Liens existing and disclosed to the
Lender in writing prior to the date hereof;
(ii) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) Statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens
imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to
which adequate bonds have been posted;
(iv) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(v) Easements, rights-of-way, zoning and similar
restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries and which do not detract
materially from the value of the property to which they attach or
impair materially the use thereof by the Borrower or any of its
Subsidiaries;
(vi) Liens on property of any Person
existing at the time such Person becomes a Subsidiary of
the Borrower;
(vii) Liens securing Indebtedness owed by a
Subsidiary of the Borrower to the Borrower or another
Subsidiary of the Borrower;
(viii) any Lien arising solely by operation of law in
the ordinary course of business or which is contained in a contract
for the purchase or sale of goods or services entered into in the
ordinary course of business;
(ix) Liens on any property existing at the time of
acquisition but only if the amount of outstanding Indebtedness
secured thereby does not exceed the lesser of the fair market value
or the purchase price of the property as purchased;
(x) any Lien securing the purchase price of revenues or
assets purchased after the date hereof or the cost of repairing or
altering, constructing, developing or substantially improving all or
any part of such revenues or assets; provided, that such Lien
attaches only to such revenues or assets (including any
improvements) and the Indebtedness thereby secured does not exceed
the lesser of the fair market value or the purchase price of the
revenues or assets (including any improvements) as purchased;
(xi) any other Liens securing Indebtedness which in the
aggregate does not exceed 10% of Consolidated Net Tangible Assets at
any time outstanding; and
(xii) any extension, renewal or replacement of any of
the Liens referred to above; provided, that the Indebtedness secured
by any such extension, renewal or replacement does not exceed the
sum of the principal amount of the Indebtedness originally secured
thereby and any fee incurred in connection with such transaction.
(b) Merger, etc. The Borrower shall not (i) enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or suffer any
liquidation, wind-up or dissolution), discontinue its business or convey, lease,
sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of its business or property, whether now
or hereafter acquired, or (ii) permit any of its Subsidiaries to do so, if such
action could reasonably be expected to have a Material Adverse Effect, except
that any wholly-owned Subsidiary of the Borrower may merge into or convey, sell,
lease or transfer all or substantially all of its assets to, the Borrower or any
other wholly-owned Subsidiary of the Borrower and the Borrower or any of its
Subsidiaries may enter into any merger or consolidation so long as in the case
of a transaction involving the Borrower, the Borrower, or in the case of any
other transaction, a Subsidiary of the Borrower, is the surviving entity in such
transaction and, after giving effect thereto, no Default or Event of Default
shall have occurred or be continuing.
(c) Other Credit Agreements. The Borrower shall not amend,
modify or waive, or permit the amendment, modification or waiver of, any
provision of any Other Credit Agreement or Other Note unless such amendment is
made in accordance with Section 7.01 hereof.
(d) Sale-Leasebacks. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become liable, directly or indirectly, with
respect to any lease, whether an operating lease or a Capital Lease, of any
property (whether real or personal or mixed) whether now owned or hereafter
acquired (except for property the aggregate value of which at the time such
lease is entered into is less than 10% of Consolidated Net Tangible Assets), (i)
which the Borrower or such Subsidiary has sold or transferred or is to sell or
transfer to any other Person, or (ii) which the Borrower or such Subsidiary
intends to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by the Borrower or such Subsidiary to
any other Person in connection with such lease.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay when due any principal of
any Advance (or, if any such failure is due solely to technical or
administrative difficulties relating to the transfer of such amounts, within two
Business Days after its due date) or the Borrower shall fail to pay when due any
interest on any Advance, any fee (other than the facility fee) or any other
amount payable by it hereunder or under the Note or the Uncommitted Advance Note
and five (5) days shall have elapsed from the date such interest, fees or other
amounts were due; or with respect to the facility fee payable pursuant to
Section 2.03, the Borrower shall fail to pay the facility fee when due and two
Business Days shall have elapsed from the Borrower's receipt of notice of such
non-payment from the Lender; or
(b) Any representation or warranty made by the Borrower herein
or pursuant to this Agreement, the Note or the Uncommitted Advance Note shall
prove to have been incorrect in any material respect when made or deemed made;
or
(c) The Borrower shall fail to perform any term, covenant or
agreement contained in Section 5.01(a)(iv), 5.01(f) or 5.02 on its part to be
performed or observed; or
(d) The Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (except those described in clauses (a) and
(c) above) and such failure shall continue for 30 days; or
(e) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of its Principal
Subsidiaries in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other similar official
of the Borrower or such Principal Subsidiary or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 30
consecutive days; or
(f) The Borrower or any of its Principal Subsidiaries shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall consent to the entry of any
order for relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Borrower or such
Principal Subsidiary or for any substantial part of its property, or shall make
any general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action in
furtherance of any of the foregoing; or
(g) (A) The Borrower shall fail to make any payment in respect
of Indebtedness when due (whether by scheduled maturity, required prepayment,
acceleration or otherwise)if the aggregate amount of such payment is $5,000,000
or more, or (B) any breach, default or event of default shall occur and be
continuing (and applicable grace and notice periods shall have expired) under
any agreement or indenture relating to any Indebtedness in an aggregate amount
of $5,000,000 or more, and, except in the case of financial covenant defaults,
the maturity of any such Indebtedness has been accelerated in accordance with
the terms thereof or (C) an "Event of Default" as defined in any Other Credit
Agreement shall have occurred; or
(h) (A) Any Termination Event shall occur, or (B) any Plan
shall incur an "accumulated funding deficiency" (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived or (C) the Borrower or
any member of its ERISA Controlled Group shall fail to pay when due an amount
which it shall have become liable to pay to the PBGC, any Plan or a trust
established under Title IV of ERISA, or (D) a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that an ERISA
Plan must be terminated or have a trustee appointed to administer any ERISA
Plan, or (E) the Borrower or a member of its ERISA Controlled Group suffers a
partial or complete withdrawal from a Multiemployer Plan or is in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (F) a proceeding shall be instituted against the Borrower
or any member of its ERISA Controlled Group to enforce Section 515 of ERISA, or
(G) any other event or condition shall occur or exist with respect to any Plan,
if such events, transactions or conditions set forth in clauses (A) through (G)
above could singly or in the aggregate be reasonably expected to have a Material
Adverse Effect; or
(i) If there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 30 days, whether or not consecutive, any final
judgment against the Borrower or any of its Principal Subsidiaries which, when
added to any other outstanding final judgments which remain undischarged,
unsatisfied and unstayed for more than 30 days against the Borrower or any such
Principal Subsidiary, exceeds $5,000,000;
then, and in any such event, the Lender may, by notice to the Borrower, with the
written consent of the Required Lenders, except as provided in Section 7.03, (i)
declare the obligation of the Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate and (ii) declare all Advances, the
Note, the Uncommitted Advance Note, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon all
Advances, the Note, the Uncommitted Advance Note, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however that in the case of any of the Events
of Default specified in clauses (e) or (f) above with respect to the Borrower,
(A) the obligation of the Lender to make Advances shall automatically be
terminated and (B) the Advances, the Note, the Uncommitted Advance Note, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, etc. No amendment or waiver of any
provision of this Agreement, the Uncommitted Advance Note, or the Note, nor
consent to any departure by any party herefrom or therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Borrower and
the Required Lenders, or in the case of Section 2.13 and the Uncommitted Advance
Note, the Borrower and the Lender; provided, that the consent of the Borrower,
the Lender and each Other Lender shall be required in order to amend or waive
any provision of this Agreement other than Section 2.13 and the Uncommitted
Advance Note, or the Note which would have the effect of (a) a reduction in
principal, interest or fees payable to the Lender under this Agreement, (b) the
postponement of any date fixed for the payment of any principal, interest or
fees under this Agreement, (c) an increase in the Commitment, (d) amending or
waiving compliance with the last sentence of Section 2.01(a), the second
sentence of Section 2.01(b), Section 2.08, Section 2.09(e), Section 5.02(c) or
this Section 7.01, or (e) amending the definition of Required Lenders. No
amendment or waiver referred to in the preceding sentence (other than amendments
to or waivers of Section 2.13 and the Uncommitted Advance Note) shall be
effective unless each Other Agreement is similarly amended or waived.
Notwithstanding the foregoing, only the written consent of the Borrower and the
Lender shall be required in order to amend and restate this Agreement pursuant
to Section 7.06, and the Borrower shall, without the consent of any Person being
required therefor, amend and provide an amended copy of Schedule I hereto to the
Lender promptly upon being advised by the Lender or any Other Lender of any
changes in the information set forth therein (provided that the failure to
provide such Schedule I to the Lender shall be deemed not to be a Default or
Event of Default hereunder).
SECTION 7.02. Notices, etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier or telex
communication) and mailed, telecopied, telexed or delivered, if to the Borrower,
at its address at 1000 Stanley Drive, New Britain, Connecticut 06050, Attention:
Secretary, telecopy no. 203-827-3911 with a copy to Craig A. Douglas, Director,
Corporate Finance at the same address and telecopy no. 203-827-3848; if to the
Lender or any Other Lender at the address for notices set forth for such Person
on Schedule I hereto; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when telecopied or telexed, be effective when
telecopied (with receipt confirmed by telephone) or confirmed by telex
answerback, respectively, and when mailed or delivered, when received.
SECTION 7.03. No Waiver; Remedies. No failure on the part of the
Lender to exercise, and no delay in exercising, any right hereunder or under the
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law. The Lender agrees that it shall not
be entitled to exercise any of its remedies hereunder except with the prior
written consent of the Required Lenders, provided that the Lender may, without
such prior written consent, exercise its remedies hereunder with respect to any
Obligations as to which (a) pro rata payments are not required to be made under
Section 2.09(e) in the case of an Event of Default under Section 6.01(a) with
respect to any such payments or (b) a pro rata payment is required to be made
under Section 2.09(e) and the Lender does not receive its pro rata payment when
due and payable hereunder in the case of an Event of Default under Section
6.01(a). In the event that any Lender intends to exercise remedies pursuant to
the immediately preceding proviso, the Lender shall, prior to taking any action
with respect thereto, notify the Borrower and the Borrower shall immediately
notify each Other Lender to such effect. In the event that the prior written
consent of the Required Banks is required in connection with the exercise of
remedies hereunder, the Borrower shall, immediately upon the Lender's request,
furnish the then outstanding amounts of each Other Lender's Committed Advances
(as defined in the related Other Credit Agreement).
SECTION 7.04. Costs and Expenses; Breakage Indemnification. (a) The
Borrower agrees to pay on demand all reasonable costs and expenses, if any
(including, without limitation, counsel fees and expenses reasonably incurred),
of the Lender in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Uncommitted Advance Note
and the Note and the other documents to be delivered hereunder, including,
without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 7.04(a).
(b) If any payment, prepayment or conversion of any Eurodollar
Rate Advance or a Fixed Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of acceleration of the maturity of
the Advances, the Uncommitted Advance Note and the Note pursuant to Section 6.01
or for any other reason other than in connection with Section 2.02(c), the
Borrower shall, upon demand by Lender, pay to the Lender any amounts required to
compensate the Lender for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by the Lender to fund or maintain such Advance.
SECTION 7.05. Sharing of Payments. If the Lender shall receive
payment in respect of any Obligation through the exercise of any right of
set-off, bankers' lien, counterclaim or similar right or otherwise, such that
the amount so received is more than the Lender's Ratable Share (as defined
below) of payments simultaneously received by the Other Lenders in respect of
the Other Credit Agreements, the Lender shall promptly purchase from the Other
Lenders participations in the advances to the Borrower made by the Other Lenders
under the Other Credit Agreements in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that the Lender
and all the Other Lenders shall each receive its Ratable Share of the benefit of
such payment. To such end all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The Borrower agrees that any
Person so purchasing a participation in such advances made by other Persons may
exercise all rights of set-off, bankers' lien, counterclaim or similar rights
with respect to such participation as fully as if such Person were a direct
holder of such advances in the amount of such participation. Nothing contained
herein shall require any such Person to exercise any such right or shall affect
the right of any such Person to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness or obligation of the
Borrower. The Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in an Advance hereunder
or an advance under the Other Credit Agreement, if acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation. As used herein, "Ratable Share" for the Lender or any Other
Lender means a fraction (expressed as a percentage), (x) the numerator of which
is the amount of outstanding Obligations (as defined in this Agreement or the
Other Credit Agreement, as the case may be) owed to the Lender or the Other
Lender, as the case may be and (y) the denominator of which is the total amount
of outstanding Obligations (as defined in this Agreement and all Other Credit
Agreements).
SECTION 7.06. Binding Effect; Assignments. This Agreement shall
become effective when it shall have been executed and delivered by the Borrower
and the Lender and the condition precedents set forth in Section 3.01 shall have
been satisfied, and thereafter shall be binding upon and inure to the benefit of
the Borrower and the Lender and their respective successors and assigns, except
that the Borrower shall not have the right to assign its rights or obligations
hereunder or under the Note or Uncommitted Advance Note or any interest herein
or therein (other than as permitted by Section 5.02(b)) without the prior
written consent of the Lender and Other Lenders, and the Lender shall not have
the right to assign its rights and obligations hereunder or as holder of the
Note or the Uncommitted Advance Note or any interest herein or therein (other
than an assignment to an affiliate of the Lender) without the prior written
consent of the Borrower, which consent shall not be unreasonably withheld;
provided that the Lender shall not enter into any such assignment unless prior
thereto or simultaneously therewith the assignee agrees in writing with the
Borrower to be bound by the terms and provisions of this Agreement to the same
extent as if it were an original party hereto. Such instrument shall be deemed
to amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Person as a Lender and the resulting adjustment of
the Commitments, if any, arising from such assignment. Promptly after the
consummation of any such assignment, the transferor and the Borrower shall make
appropriate arrangements so that a replacement Note and Uncommitted Advance Note
are issued to such transferor and a new Note and Uncommitted Advance Note are
issued to such transferee, in each case in principal amounts reflecting such
transfer. Notwithstanding the foregoing provisions of this Section 7.06, in the
event that the Lender desires to assign its rights hereunder or any interest
herein prior to the time of any other such assignment, it shall so notify the
Borrower, and in connection therewith the original Lender shall agree to act as
the attorney-in-fact for the assignee and the assignee shall agree that the
original Lender shall so act as its attorney-in-fact and the Borrower shall
continue to deal solely and directly with the original Lender in connection with
the assignee's rights and obligations under this Agreement. Anything in this
Section 7.06 to the contrary notwithstanding, the Lender and each Other Lender
may assign and pledge all or any portion of its rights to payment of the
Advances owing to it hereunder or under any Other Credit Agreement as the case
may be to any Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any applicable Operating Circular issued by such Federal Reserve Bank. No
such assignment shall have the effect of releasing the Lender or such Other
Lender from its obligations hereunder or under such Other Credit Agreement, as
the case may be.
SECTION 7.07. Participations. The Lender may sell participations to
one or more banks or other financial institutions in all or a portion of its
rights and/or obligations under this Agreement (including, without limitation,
all or a portion of the Commitment and the Advances); provided, that (i) the
Lender's obligations under this Agreement (including, without limitation, the
Commitment) shall remain unchanged, (ii) the Lender shall remain solely
responsible to the Borrower for the performance of such obligations, (iii) the
Borrower shall continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations under this Agreement and
(iv) such participant's right to consent to any modification, waiver or release
of any of the provisions of this Agreement shall be limited to the right to
consent to (A) any reduction in principal, interest or fees payable to the
Lender under this Agreement, (B) the postponement of any date fixed for the
payment of any principal, interest or fees under this Agreement and (C) increase
in the Commitment, and (D) any amendments to the foregoing clauses (A), (B) and
(C).
SECTION 7.08. Limitation on Assignments and Participations. (a) The
Lender may, in connection with any actual or proposed assignment or
participation pursuant to Section 7.06 or 7.07, disclose to the actual or
proposed assignee or participant, any information relating to the Borrower
furnished to the Lender by or on behalf of the Borrower; provided, that the
actual or proposed assignee or participant shall have agreed prior to any such
disclosure to preserve the confidentiality of any confidential information
relating to the Borrower received by it from the Lender or the Borrower.
(b) Notwithstanding anything in Section 7.06 and 7.07 to the
contrary, the Lender shall not have the right to assign its rights and
obligations hereunder or any interest therein or to sell participations to one
or more banks or other financial institutions in all or a portion of its rights
hereunder or any interest therein where the result of such assignment or
participation would be reasonably expected to entitle the Lender to claim
additional amounts pursuant to Section 2.02(d), 2.06, 2.08, 2.10, or 7.04 or
would otherwise result in an increase in the Borrower's obligations.
SECTION 7.09. Withholding. If the Lender, or any Person that becomes
a party to this Agreement pursuant to Section 7.06, is not incorporated under
the laws of the United States of America or a state thereof, such Person agrees
that, prior to the first date on which any payment is due to it hereunder, it
will deliver to the Borrower (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the
case may be, certifying in each case that such Person is entitled to receive
payments under this Agreement and the Note payable to it, without deduction or
withholding of any United States federal income taxes, and (ii) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. Each
Person which delivers to the Borrower a Form 1001 or 4224 and Form W-8 or W-9
pursuant to the preceding sentence further undertakes to deliver to the Borrower
two further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower, and such extensions or renewals thereof as may
reasonably be requested by the Borrower, certifying in the case of a Form 1001
or 4224 that such Person is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Person from duly completing and delivering any such
form with respect to it and such Person advises the Borrower that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
SECTION 7.10. Mitigation. In the event that the Lender claims any
amounts under Sections 2.02(d), 2.06, 2.08, 2.10 or 7.04(b), it shall use all
reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to take actions (including, without limitation,
changing the jurisdiction of its Applicable Lending Office) so as to eliminate
such additional amounts; provided, that the Lender shall not be required to take
any action if, in its reasonable judgment, such action would be materially
disadvantageous to it.
SECTION 7.11. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT,
THE NOTE AND THE UNCOMMITTED ADVANCE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 7.13. Submission to Jurisdiction. The Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement, the Note or the Uncommitted Advance Note. The Borrower
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and a claim that such proceeding brought in such a court
has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective signatories thereunto duly authorized, as of the
date first above written.
THE STANLEY WORKS
By:___________________
Name: Richard Huck
Title: Vice President, Finance and Chief
Financial Officer
------------------------
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
SCHEDULE I
ADDRESS AND APPLICABLE LENDING OFFICES
Name of Lender
and Other Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
----------------- -------- ----------
Citibank, N.A. Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue 399 Park Avenue
New York, N.Y. 10022 New York, N.Y. 10022 New York, N.Y. 10022
Telecopy: 212-793-7712
Telephone: 212-559-7241/212-559-4424
Attn: Paolo de Alessandrini/
Aaron Kim
=====================================================
Banque Nationale BNP - New York BNP - Georgetown
de Paris 499 Park Avenue c/o BNP - N.Y.
499 Park Avenue New York, N.Y. 10022 499 Park Avenue
New York, N.Y. 10022 New York, N.Y. 10022
Telecopy: 212-415-9695
Telephone: 212-415-9785
Attn: Charmaine Robinson/
Jessie Griffiths
Payment instructions:
Federal Reserve Bank of
New York
ABA Routing No. 026007689
Acct. #70015370150
Reference: Stanley Works
SCHEDULE I-1
Name of Lender
and Other Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
----------------- -------- ----------
================================================================================
Morgan Guaranty Loan Department c/o J.P. Morgan
Trust Company of 60 Wall Street Services, Inc.
New York New York, New York Euro-Loan Servicing Unit
60 Wall Street 10260 902 Market Street
New York, N.Y. 10260 Wilmington, DE 19801
Telecopy: 212-648-6997
Attn: Martin Atkin
================================================================================
J.P. Morgan Delaware J.P. Morgan Delaware J.P. Morgan Delaware
902 Market Street 500 Stanton Christiana Rd 500 Stanton Christiana Rd
Wilmington, DE 19801 Newark, Delaware Newark, Delaware
Telecopy: 302-654-5336 19713-2107 19713-2107
Attn: George A. Kent Attn: Credit Support Attn: Credit Support
Vice President Services Services
Telephone:302-651-2387 Execution and/or Execution and/or
Conformed copies to: Conformed copies to:
George A. Kent George A. Kent
Vice President Vice President
J.P. Morgan Delaware J.P. Morgan Delaware
902 Market Street 902 Market Street
Wilmington, DE Wilmington, Delaware
19801 19801
===============================================================================
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
New York Branch New York Branch New York Branch
Financial Square Financial Square Financial Square
23rd Floor New York, New York New York, New York
New York, New York 10005-3531 10005-3531
10005-3531
Telecopy: (212) 428-2372
Attn: Manager, Credit
Administration
SCHEDULE I-2
Name of Lender
and Other Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
----------------- -------- ----------
Copy to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York
10005-3531
Attn: Sheryl L. Greenberg
Manager
Telephone: 212-428-6476
===============================================================================
Wachovia Bank of Wachovia Bank of Wachovia Bank of
Georgia, N.A. Georgia, N.A. Georgia, N.A.
191 Peachtree St., NE 191 Peachtree St.,NE 191 Peachtree St.,NE
Atlanta, GA 30303 Atlanta, GA 30303 Atlanta, GA 30303
Telecopy: 404-332-6898 Telecopy: 404-332-6898 Telecopy: 404-332-6898
Telephone: 404-332-1090 Telephone: 404-332-1090 Telephone: 404-332-1090
Attn: Terrence Snellings Attn: Terrence Snellings Attn: Terrence Snellings
MC370 MC370 MC370
================================================================================
Domestic Eurodollar Uncommitted
Name of Lender Lending Office Lending Office Lending Office
--------------
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
P.O. Box 544 London c/o Central Loan Admin. 8th Floor
34 Lombard Street Barclays Bank PLC Dept., 5th Floor 222 Broadway
London EC3V 9EX 75 Wall Street St. Swithins House New York, N.Y. 10038
New York, N.Y. 10265 11/12 St. Swithins Lane
Londaon EC4N 8AS
Telecopy:
171-699-2298 Ref: Stanley Works Ref: Stanley Works Ref: Stanley Works
Base Rate Advances Eurodollar Advances Uncommitted Bid Option
Contacts:
Jonathan Gray Telecopy:212-412-5002 Telecopy:171-621-4583 Contacts:
Tel. No. Telex: 8950821 Tom Connolloy
171-699-2301 Greg Hurley
Contacts: Contacts: 212-412-2091
Kevin Jones Tanya Bond
212-412-5022 171-621-4599 Telecopy:
212-412-4020
SCHEDULE I-3
Repayment instructions: Repayment Instructions:
Barclays Bank PLC, Barclays Bank PLC
New York New York
FEDWIRE ABA: 026002574 Account: CLAD
Credit: CLAD CONTROL No. 050-019104
ACCOUNT 050 019104.
Ref: CSU2/Stanley Works/
(Prin/Int/Repayment)
CHIPS ABA: 257
UID: 306393
Ref: CSU2/Stanley Works
(Prin/Int/Repayment)
Also send instructions
to Barclays Bank PLC,
Central Loan Administration Dept.
London
SCHEDULE I-4
Name of Lender
and Other Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=====================================================
Mellon Bank, N.A. Mellon Bank, N.A. Mellon Bank, N.A.
Three Mellon Center Three Mellon Center Three Mellon Center
Pittsburgh, Pa. Pittsburgh, Pa. Pittsburgh, Pa.
15259-0001 15259-0001 15259-0001
Telecopy: 412-236-2027 Telecopy: 412-236-2027 Telecopy: 412-236-2027
Telephone: 412-234-8347 Telephone: 412-234-8347 Telephone: 412-234-8347
Attn: Rhonda Ashbaugh Attn: Rhonda Ashbaugh Attn: Rhonda Ashbaugh
=====================================================
Shawmut Bank Shawmut Bank Shawmut Bank
Connecticut, N.A. Connecticut, N.A. Connecticut, N.A.
777 Main Street 777 Main Street 777 Main Street
Hartford, Ct. Hartford, Ct. Hartford, Ct.
06115 06115 06115
Telecopy: 203-722-9378 Telecopy: 203-722-9378 Telecopy: 203-722-9378
Telephone: 203-728-4426 Telephone: 203-548-7098 Telephone: 203-548-7098
Attn: Paul Veiga Attn: Zoraida Sanchez Attn: Zoraida Sanchez
SCHEDULE I-5
EXHIBIT A
PROMISSORY NOTE
(Committed Advances)
$ Dated: , 199_
FOR VALUE RECEIVED, the undersigned, The Stanley Works, a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of [NAME OF LENDER] (the "Lender") the principal sum of $
or, if less, the aggregate principal amount of all Committed
Advances made by the Lender to the Borrower pursuant to the Credit
Agreement referred to below outstanding on the Termination Date, and
such amount shall be paid on or prior to the Termination Date as
provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall
have the meanings provided in the Credit Agreement referred to
below.
The Borrower promises to pay interest on the principal amount
of each Committed Advance from the date of such Advance until such
principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement
referred to below.
Both principal and interest are payable in lawful money of the
United States of America to the Lender at the address set forth in
the Credit Agreement referred to below (or at such other place as
the Lender may specify to the Borrower in writing) in same day
funds. Each Committed Advance made by the Lender to the Borrower and
the maturity thereof, and all payments made on account of the
principal amount thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which
is a part of this Promissory Note, which recordation shall be
conclusive and binding absent manifest error but the failure to make
such recording shall not have any effect on the Lender's rights
hereunder.
This Promissory Note is the Note referred to in, and is
entitled to the benefits of, the Facility A (364 Day) Credit
Agreement dated as of November 15, 1994 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), between the
Borrower and the Lender. The Credit Agreement, among other things,
(i) provides for the making of Committed Advances by the Lender to
the Borrower from time to time in an aggregate amount not to exceed
the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Committed Advance being
evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions
therein specified.
THE STANLEY WORKS
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Date Amount of Amount of Principal Unpaid Notation
Advance Paid or Prepaid Principal Made By
Balance
EXHIBIT B-1
RATE REQUEST
[NAME AND
ADDRESS OF
REFERENCE BANK]
[Date]
Ladies and Gentlemen:
The undersigned, The Stanley Works, refers to the Facility A (364 Day)
Credit Agreement, dated as of November 15, 1994 (as amended, modified or
supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined) between you and the undersigned
and hereby requests notification from you pursuant to Section 2.02(a) thereof of
the Eurodollar Rate which is applicable to the Committed Advance to be made (or
converted or continued) on__ , 19__ in the principal amount of $__ with the
Interest Period of__ months.
Very truly yours,
The Stanley Works
By:_______________
Name:
Title:
_______________________________
TO BE COMPLETED AND RETURNED BY
REFERENCE BANK:
The rate requested above,
determined as required by
the Credit Agreement, is .
[NAME OF REFERENCE BANK]
By:
Authorized Officer
EXHIBIT B-2
NOTICE OF BORROWING
[NAME AND
ADDRESS OF LENDER]
[Date]
Ladies and Gentlemen:
The undersigned, The Stanley Works, refers to the Facility A (364 Day)
Credit Agreement, dated as of November 15, 1994 (as amended, modified or
supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), between you and the undersigned
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests [a] Committed Advance[s]* under
the Credit Agreement, and in that connection sets forth below the information
relating to such Advance[s] (the "Proposed Advance[s]") as required by Section
2.02(b) of the Credit Agreement:
(i) The Business Day of the Proposed Advance is________, 19__.
(ii) The Type of Advance is [Base Rate] [Eurodollar Rate].
(iii) The amount of the Proposed Advance is $ and the aggregate
amount of all Committed Advances requested from you and the Other Lenders with
respect to the Proposed Advance in accordance with Section 2.01 of the Credit
Agreement is $ .
[(iv)] The Interest Period for the Proposed Advance is___month[s]].
*Information required for an Advance may be repeated as necessary if more than
one Advance is being requested in one Notice of Borrowing.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Advance[s]:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement are correct in all material respects, before and after giving
effect to the Proposed Advance[s] and any other Committed Advances being made by
the Lender and the Other Lenders on the same day as the Proposed Advance[s] and
to the application of the proceeds therefrom, as though made on and as of such
date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Advance[s] or such other Advances from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
The Borrower's account information for funding purposes is Account
No. , [NAME OF BANK], ABA No. , [CITY], [STATE],
Ref. .
Very truly yours,
The Stanley Works
By:_____________________
Name:
Title:
EXHIBIT C
NOTICE OF CONVERSION OR CONTINUATION
[Date]
[NAME AND
ADDRESS OF LENDER]
Ladies and Gentlemen:
The undersigned, The Stanley Works, refers to the Facility A (364 Day)
Credit Agreement, dated as of November 15, 1994 (as amended, modified or
supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), between you and the undersigned
and hereby gives you notice, pursuant to Section 2.04(b) of the Credit Agreement
that the undersigned hereby elects to [convert][continue] the [Base
Rate][Eurodollar Rate] Advance:
(i) which is in the amount of $______;
(ii) which, in the case of a Eurodollar Rate Advance, has an
Interest Period of__ month(s);1 and
(iii) which was borrowed (or previously converted or
continued) on_____, 199_.
Such [conversion][continuation] shall become effective on , 199 , at which
time such Advance shall be [converted into][continued as] a [Base
Rate][Eurodollar Rate] Advance:
(1) Omit clause (ii) if Advance is a Base Rate Advance.
(i) which is in the amount of $__________;(2)
and
(ii) which has an Interest Period of__month(s).
The aggregate amount of all related Advances made by the Lender and Other
Lenders being [converted] [continued] in accordance with Section 2.01 of the
Credit Agreement and the Other Credit Agreements is $ .
Very truly yours,
The Stanley Works
By:___________
Name:
Title:
(2) Omit clause (i) if conversion or continuation is for entire amount of
Advance.
EXHIBIT D
PROMISSORY NOTE
(Uncommitted Advances)
$____ Dated:____________, 199_
FOR VALUE RECEIVED, the undersigned, The Stanley Works, a Connecticut
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of [NAME OF
LENDER] (the "Lender") the aggregate principal amount of all Uncommitted
Advances made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below and such amount shall be paid in the amounts and on the dates
provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall have the
meanings provided in the Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount of each
Uncommitted Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at the address set forth in the Credit Agreement
referred to below (or at such other place as the Lender may specify to the
Borrower in writing) in same day funds. Each Uncommitted Advance made by the
Lender to the Borrower and the maturity thereof, and all payments made on
account of the principal amount thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto which is a
part of this Promissory Note, which recordation shall be conclusive and binding
absent manifest error but the failure to make such recording shall not have any
effect on the Lender's rights hereunder.
This Promissory Note is the Uncommitted Advance Note referred to in, and
is entitled to the benefits of, the Facility A (364 Day) Credit Agreement dated
as of November 15, 1994 (as amended, modified or supplemented from time to time,
the "Credit Agreement"), between the Borrower and the Lender. The Credit
Agreement, among other things, (i) provides for the making of Uncommitted
Advances by the Lender to the Borrower from time to time, the indebtedness of
the Borrower resulting from each such Uncommitted Advance being evidenced by
this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
THE STANLEY WORKS
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Date Amount of Amount of Principal Maturity Notation
Advance Paid or Prepaid Date Made By
EXHIBIT E
FORM OF QUOTE REQUEST
[Date]
NAMES AND ADDRESSES OF LENDERS]
Ladies and Gentlemen:
The undersigned, The Stanley Works, refers to the substantially
identical Facility A (364 Day) Credit Agreements, dated as of November 15, 1994
(as amended, modified or supplemented from time to time, the "Credit
Agreements", the terms defined therein being used herein as therein defined),
between each of you and the undersigned, and hereby gives you notice pursuant to
Section 2.13 of the Credit Agreements that the undersigned hereby requests
offers to make an Uncommitted Advance[s]* under the Credit Agreements, and in
that connection sets forth the terms on which such borrowing[s] (the "Proposed
Uncommitted Advance[s]") [is] [are] requested to be made:
(i) The Business Day of the Proposed Uncommitted Advance is
_____________, 19___.
(ii) The proposed aggregate amount of the Proposed Uncommitted
Advance is $________.
(iii) The duration of the proposed Interest Period for the Proposed
Uncommitted Advance is ________.
(iv) The Type of Proposed Uncommitted Advance is [Fixed Rate]
[Floating Rate].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Uncommitted
Advance:
*Information required for an Advance may be repeated as necessary if more than
one Advance is being requested in one Form of Quote Request.
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement are correct in all material respects, before and after giving
effect to the Proposed Uncommitted Advance and any other Uncommitted Advances
being made by the Lender or any other Lender on the same day and to the
application of the proceeds therefrom, as though made on and as of such date;
and
(B) no event has occurred and is continuing, or would result from such
Proposed Uncommitted Advance or such other Uncommitted Advances or from the
application of the proceeds therefrom, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
Very truly yours,
The Stanley Works
By:________________
Name:
Title:
EXHIBIT F
FORM OF QUOTE
[Date]
THE STANLEY WORKS
[ADDRESS]
Re: Facility A (364 Day) Credit Agreement dated as of November 15, 1994
between the undersigned and The Stanley Works (as amended, modified or
supplemented from time to time, the "Credit Agreement")
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the above-referenced Credit
Agreement. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The
undersigned hereby makes [a] Quote[s] pursuant to Section 2.13 of the Credit
Agreement, in response to the Quote Request made by the Borrower on , 19 , and
in response thereto, sets forth below the terms on which such Quote[s] [is]
[are] made:
(i) The principal amount of the Uncommitted Advance is $_________.
(ii) The Type of Uncommitted Advance is
[Fixed Rate] [Floating Rate].
(iii) The Floating Rate Margin in the case of a Floating Rate
Advance, or the Fixed Rate in the case of a Fixed Rate Advance, is________.(3)
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this Quote in accordance with Section 2.13(d)
of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:______________
Name:
Title:
(3) Clauses (i) through (iii) should be repeated as to each additional offer
being made.
EXHIBIT G
FORM OF ACCEPTANCE
[Date]
[NAMES AND ADDRESSES OF LENDERS]
Re: Substantially identical Facility A (364 Day) Credit Agreements, dated as
of November 15, 1994 (as amended, modified or supplemented from time to time,
the "Credit Agreements") between each of the addressees and the undersigned
Ladies and Gentlemen:
The undersigned, The Stanley Works, refers to the above referenced Credit
Agreements. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreements. In accordance
with Section 2.13 of the Credit Agreements, we have received [a] Quote/Quotes in
connection with our Quote Request, dated______ , for [an] Uncommitted Advance[s]
to occur on__, and in accordance with Section 2.13(d) of the Credit Agreements,
we hereby accept the following offer/offers for the Interest Period of [ ]:
Principal Amount Fixed Rate/Floating Rate Lender
The Borrower's account information for funding purposes is Account
No. , [NAME OF BANK], ABA No. , [CITY], [STATE], Ref. .
Very truly yours,
The Stanley Works
By:______________
Name:
Title:
EXHIBIT H
FORM OF OPINION OF GENERAL COUNSEL
November 15, 1994
[Name and Address of Lender]
Ladies and Gentlemen:
I am the General Counsel of The Stanley Works, a Connecticut corporation
(the "Borrower"), and have acted as counsel to the Borrower in connection with
the Facility A (364 Day) Credit Agreement, dated as of November 15, 1994 (the
"Credit Agreement"), between the Borrower and the addressee (the "Lender").
This opinion is being delivered to you pursuant to Section 3.01(d) of the
Credit Agreement. Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Credit Agreement.
In rendering the opinions set forth herein, I have examined and relied on
originals or copies of the following:
(a) a counterpart executed by the Borrower of the Credit Agreement;
(b) the executed Note and the executed Uncommitted Advance Note;
(c) copies of the Certificate of Incorporation and By-laws of the
Borrower;
(d) a certified copy of certain resolutions of the Board of Directors
of the Borrower;
(e) certificates from public officials in the State of Connecticut
as to the good standing of the Borrower in the State of Connecticut; and
(f) such other documents as I have deemed necessary or appropriate
as a basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which I did not independently establish or verify, I have relied upon
written statements and certificates of the Borrower and its officers and other
representatives and of public officials.
Unless otherwise indicated, references in this opinion to the "Loan
Documents" shall mean the documents listed in clauses (a) and (b) above. In
addition, references to (i) "Applicable Laws" shall mean the laws and
regulations of the States of Connecticut and New York and the United States of
America (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System) which are applicable to the
transactions contemplated by the Loan Documents; (ii) the term "Governmental
Authorities" means any Connecticut, New York and federal executive, legislative,
judicial, administrative or regulatory body; (iii) the term "Applicable
Contracts" shall mean the agreements and instruments set forth in the index of
exhibits to the Borrower's Annual Report on Form 10-K for the year ended January
1, 1994 filed with the Securities and Exchange Commission and (iv) the term
"Governmental Approval" means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any Governmental
Authority pursuant to any Applicable Law.
I am admitted to the bar in the States of Connecticut and New York. This
opinion is limited to the laws of the State of Connecticut, the State of New
York and the United States of America to the extent specified therein.
In rendering this opinion, I have assumed, with your consent, that:
(a) the execution, delivery or performance by the Borrower of the
Loan Documents 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 I express my
opinion in paragraph 5 herein) or any agreement or instrument to which the
Borrower or the Borrower's property is subject (except and to the extent that I
express my opinion in paragraph 5 herein);
(b) and 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 I express my opinion in paragraph 6 herein)
is required to authorize or is required in connection with the execution,
delivery or performance by the Borrower of any Loan Document or the transactions
contemplated thereby.
My opinions are also subject to the following assumptions and
qualifications:
(a) the Credit Agreement constitutes the valid andbinding
obligation of the Lender and is enforceable against the Lender in accordance
with its terms; and
(b) I express no opinion as to the effect on the opinions herein
stated of (i) the compliance or non-compliance of the Lender with any state,
federal or other laws or regulations applicable to the Lender or (ii) the legal
or regulatory status or the nature of the business of the Lender.
Based upon the foregoing and such investigations that I have deemed
necessary, and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, I am of the opinion that:
1. The Borrower has been duly incorporated, is validly existing and
in good standing under the laws of the State of Connecticut.
2. The Borrower has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under the Loan Documents.
3. The execution and delivery of each Loan Document has been duly
authorized by all requisite corporate action on the part of the Borrower.
4. Each Loan Document has been duly executed and delivered by the
Borrower, constitutes a valid and binding obligation of the Borrower and is
enforceable against the Borrower in accordance with its terms, subject to the
following qualifications:
(i) enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in
equity or at law);
(ii) I express no opinion as to the enforceability of any
rights to indemnification provided for in the Loan Documents which
may violate the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation);
and
(iii) I express no opinion as to the enforceability of Section
7.05 of the Credit Agreement insofar as this provision purports to
authorize a Person who has purchased a participation in Advances
under the Credit Agreement to set off, appropriate or apply any
deposit or property or indebtedness of the Borrower against any
obligation of the Borrower.
5. Neither the execution, delivery or performance by the Borrower of
the Loan Documents nor the compliance by the Borrower with the terms and
provisions thereof will conflict with, contravene, violate or constitute a
default under (i) any provision of any Applicable Contract or, to the best of my
knowledge, after due investigation, 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 my knowledge, after due investigation, any
judicial or administrative order or decree of any Governmental Authority or (iv)
its Certificate of Incorporation and By-laws. As used in this paragraph, "due
investigation" means solely that, as to agreements and instruments, I have
interviewed the officers of the Borrower responsible for its financing
activities, and, as to orders and decrees, I have interviewed the lawyers under
my supervision.
6. Based on my review of Applicable Laws, but without my 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 any of the Loan Documents by the Borrower.
7. The Borrower is not required to be registered under the
Investment Company Act of 1940, as amended.
This opinion is being furnished only to you and is solely for your benefit
in connection with the transactions contemplated by the Loan Documents and is
not to be used, circulated, quoted, relied upon or otherwise referred to for any
other purpose without my prior written consent.
Very truly yours,
EXHIBIT I
FORM OF CERTIFICATE
[Date]
TO: THE STANLEY WORKS
AND THE OTHER LENDERS AS DEFINED
IN THE CREDIT AGREEMENT REFERRED
TO BELOW
Re: Facility A (364 Day) Credit Agreement dated as of Novenber 15, 1994 between
the undersigned and The Stanley Works (as amended, modified or supplemented from
time to time, the "Credit Agreement")
Ladies and Gentlemen:
The undersigned (the "Lender") refers to the above-referenced Credit
Agreement. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The
undersigned hereby certifies and agrees pursuant to Section 3.01(e) of the
Credit Agreement, as follows:
(i) the Lender shall abide by the provisions of the Credit Agreement
with the Borrower;
(ii) attached hereto is a true and correct conformed copy of the
Credit Agreement; and
(iii) if the Lender is the Reference Bank, it shall, and in the
event that the Lender shall become the Reference Bank, the Lender shall
thereupon, abide by the provisions of the Credit Agreement pertaining to the
function and duties of the Reference Bank.
Very truly yours,
By:___________________
Name:
Title: