1
Exhibit 10(y)
AMENDMENT TO
MULTI-YEAR REVOLVING CREDIT AGREEMENT
This Amendment to Multi-Year Revolving Credit Agreement, dated as of May 8,
1996 (this "Amendment"), is among TRW Inc., an Ohio corporation (the "Company")
and the financial institutions listed on the signature pages hereof together
with their successors or assigns (collectively, the "Banks" and individually, a
"Bank").
W I T N E S S E T H:
--------------------
WHEREAS, on July 1, 1992, the Company and the Banks entered into the
Three-Year Revolving Credit Agreement (as it was then titled), which agreement
was amended on June 30, 1993, on March 1, 1994 and on February 28, 1995 (the
agreement as amended is known hereinafter as the "Agreement"); and
WHEREAS, the Company and the Banks have agreed to make such changes to the
Agreement as are reflected in this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the parties hereto agree as follows:
SECTION 1 THE AMENDMENTS
1.1 AMENDMENT OF "COMMITMENT". Section 1.1 of the Agreement shall be
amended to read in its entirety as set forth below:
1.1 COMMITMENT. Subject to the terms and conditions of this Agreement,
each of the Banks, severally and for itself alone, agrees to make loans
(collectively, the "Loans" and individually, a "Loan") to the Company and,
as provided in Section 1.8, to any Designated Subsidiary on a revolving
basis from time to time before the Termination Date, as it may be extended
from time to time pursuant to Section 1.2, in such aggregate amounts as the
Company or any Designated Subsidiary may from time to time request from
such Bank; provided, however, that the aggregate principal amount of Loans
that any Bank shall be committed to have outstanding to the Company and the
Designated Subsidiaries shall not at any one time exceed the amount set
forth opposite such Bank's signature hereto, or any subsequent amendment
hereto (except to the extent provided in Section 1.9 hereof). The foregoing
commitment of each Bank to make Loans as reduced from time to time in
accordance with the terms hereof is herein called such Bank's "Commitment"
and the commitments of all Banks are herein sometimes collectively called
the "Commitments."
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1.2 DELETION OF "TERMINATION OF COMMITMENT". Section 1.9 of the Agreement
shall be deleted in its entirety.
1.3 RENUMBERING OF "LOANS OUTSTANDING UNDER PRIOR FACILITY". Section 1.10
of the Agreement shall be renumbered to now be Section 1.9.
1.4 AMENDMENT OF "COMMITMENT FEE". Section 4.1 of the Agreement shall be
amended to delete references to Section 1.9 of the Agreement and, as amended,
shall read in its entirety as set forth below:
4.1 COMMITMENT FEE. The Company agrees to pay to each Bank a commitment
fee, for the period from and including the date of this Agreement to the
Termination Date on the daily average of the Unused Amount of such Bank's
Commitment hereunder equal to the Applicable Commitment Fee in effect from
time to time multiplied by the Unused Amount. Such commitment fee shall be
payable quarterly in arrears on the tenth day of each April, July, October,
and January (the first such payment to be made on October 10, 1992) for the
quarterly period ended on the last day of the preceding month and on the
Termination Date. The Company may make such payments according to the
Electronic Payment Instructions.
1.5 DELETION OF "UTILIZATION FEE". Section 4.2 of the Agreement shall be
deleted in its entirety.
1.6 RENUMBERING OF "COMPUTATION OF FEES". Section 4.3 of the Agreement
shall be renumbered to now be Section 4.2.
1.7 AMENDMENT OF "MANDATORY PREPAYMENT". Section 5.3 of the Agreement shall
be amended to read in its entirety as set forth below:
5.3 MANDATORY PREPAYMENT. On each day on which the aggregate
outstanding principal amount of Loans owing to any Bank on such day exceeds
(whether as a result of currency fluctuations or otherwise) such Bank's
Commitment hereunder, the Company shall pay to such Bank on demand a
mandatory prepayment in the amount of such excess. Mandatory prepayments
required by this Section 5.3 shall be applied first to Base Rate Loans
until paid in full and then, at the Company's election and in the order
specified by the Company, to Fixed Rate Loans.
1.8 AMENDMENT OF "NET WORTH". Section 9.2 of the Agreement shall be amended
to read in its entirety as set forth below:
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9.2 NET WORTH. The Company will not permit Consolidated Net Worth to be
less than 1,600,000,000 U.S. Dollars less an amount equal to the lesser of
(i) the aggregate amount expended by the Company subsequent to December 31,
1995 for the repurchase of its common stock and (ii) 600,000,000 U.S.
Dollars.
1.9 AMENDMENT OF "APPLICABLE COMMITMENT FEE" DEFINITION. The definition to
"Applicable Commitment Fee" set forth in Section 13 shall be amended to read in
its entirety as follows:
"APPLICABLE COMMITMENT FEE" means the percentage in effect from time to
time as set forth in the following table opposite the highest of the
then-current rating assigned to the Company's senior unsecured long-term
debt by Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's
Ratings Group ("S&P"):
Rating Applicable
(Moody's/S&P) Commitment Fee
------------- --------------
higher than A1/A+ 0.060%
A1/A+ 0.070%
A2/A 0.080%
A3/A- 0.090%
Baa1/BBB+ 0.100%
Baa2/BBB 0.125%
Baa3/BBB- 0.150%
lower than Baa3/BBB- 0.175%
1.10 AMENDMENT OF "APPLICABLE MARGIN" DEFINITION. The definition to
"Applicable Margin" set forth in Section 13 shall be amended to read in its
entirety as follows:
"APPLICABLE MARGIN" means, at any time, the percentage set forth in the
following table opposite the highest of the then-current rating assigned to
the Company's senior unsecured long-term debt by Moody's or S&P:
Applicable Applicable
Margin for Margin for
Rating Domestic CD Eurocurrency
(Moody's/S&P) Loans Loans
- --------------------------------------------------------------------------------
higher than A1/A+ 0.275% 0.175%
A1/A+ 0.300% 0.200%
A2/A 0.325% 0.225%
A3/A- 0.350% 0.250%
Baa1/BBB+ 0.400% 0.300%
Baa2/BBB 0.475% 0.375%
-3-
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Baa3/BBB- 0.550% 0.450%
lower than Baa3/BBB- 0.600% 0.500%
1.11 REPLACEMENT OF "CONSOLIDATED TANGIBLE NET WORTH" DEFINITION. The
definition of "Consolidated Tangible Net Worth" set forth in Section 13 shall be
deleted and replaced by the defined term "Consolidated Net Worth" which shall
read in its entirety as follows:
"CONSOLIDATED NET WORTH" means at any date the sum of the consolidated
shareholders' investment and minority interests of the Company and its
Consolidated Subsidiaries determined as of such date. Consolidated
shareholders' investment and minority interests shall be as included in the
annual and quarterly financial statements of the Company, as applicable.
1.12 AMENDMENT OF "ELECTRONIC PAYMENT INSTRUCTIONS" DEFINITION. The
definition of "Electronic Payment Instructions" set forth in Section 13 shall be
amended to read in its entirety as follows:
"ELECTRONIC PAYMENT INSTRUCTIONS" means the Bank Routing and account
number information identifying the account of each Bank to receive the ACH
payment of Commitment Fees. Such Electronic Payment Instructions for each
Bank are set forth below the signature block of such Bank to the Amendment
dated as of May 8, 1996 to the Agreement and may be changed at any time by
written notice by such Bank to the Company.
1.13 AMENDMENT OF "INTEREST PERIOD" DEFINITION. The definition of "Interest
Period" set forth in Section 13 shall be amended to read in its entirety as
follows:
"INTEREST PERIOD" means, with respect to any Fixed Rate Loan, the
period commencing on the date such Loan was made, or on the date such Loan
was Converted from a Loan of a different type, or on the date of expiration
of the immediately preceding Interest Period for such Loan, and (i) ending
30, 60, 90, 120, 150, 180 days, or, if available, more than 180 days up to
and including 360 days, thereafter in the case of a Domestic CD Loan, or
(ii) ending one, two, three, or six months, or, if available, more than six
months up to and including twelve months, thereafter in the case of a
Eurocurrency Loan, all as the Company or any Designated Subsidiary may
specify pursuant to Section 1.4, 1.5, or 3.3; the Interest Period for any
Negotiated Loan or any Local Currency Loan shall be as agreed by the
Company or any Designated Subsidiary and the Relevant Bank pursuant to
Section 1.6 or 1.7 . Each Interest Period for a Fixed Rate Loan that would
otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (unless such next succeeding Business Day is the
first Business Day of a calendar month, in which case with respect to a
Eurocurrency Loan such Interest Period shall end on the next preceding
Business Day).
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1.14 DELETION OF "NET WORTH" DEFINITION. The definition of "Net Worth" set
forth in Section 13 shall be deleted in its entirety.
1.15 AMENDMENT OF "PERCENTAGE" DEFINITION. The definition of "Percentage"
set forth in Section 13 shall be amended to read in its entirety as follows:
"PERCENTAGE" means as to any Bank the percentage of such Bank's share
of the total Commitments of all Banks.
1.16 AMENDMENT OF "TERMINATION DATE" DEFINITION. The definition of
"Termination Date" set forth in Section 13 shall be amended to read in its
entirety as follows:
"TERMINATION DATE" means the earlier to occur of (a) July 1, 2001,
subject to extension for one or more successive one-year periods as to any
Bank or Banks pursuant to Section 1.2, or (b) such other date on which the
Commitments shall terminate pursuant to Section 11.2.
1.17 AMENDMENT OF "COMPUTATIONS". Section 14.4 of the Agreement shall be
amended to delete references to certain calculations and, as amended, shall read
in its entirety as set forth below:
14.4 COMPUTATIONS. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for
the purpose of this Agreement, such determination or calculation shall, to
the extent applicable and except as otherwise specified in this Agreement,
be made in accordance with the Company's then current method of accounting,
which method must be in accordance with GAAP; provided, however, if any
changes in accounting principles from those used in the preparation of the
financial statements referred to in Section 8.4 hereafter occasioned by the
promulgation of rules, regulations, pronouncements, and opinions by or
required by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) result in a change in the method of
calculation of the financial covenants, standards, or terms found in
Section 9.2 hereof, the parties hereto agree to enter into negotiations to
amend such provisions so as equitably to reflect such changes with the
desired result that the criteria for evaluating the Company's financial
condition shall be the same after such changes as if such changes had not
been made.
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SECTION 2 GENERAL.
2.1 RESTATEMENT OF AGREEMENT. The Three-Year Revolving Credit Agreement
dated as of July 1, 1992 has been restated to incorporate all changes contained
in this and all prior Amendments and is attached as Exhibit I.
2.2 REISSUANCE OF NOTES. In connection with the effectiveness of this
Amendment, the Company shall issue to each of the Banks a Note in the principal
amounts set forth next to such Bank's name in the signature blocks below.
Contemporaneously with the issuance of such Notes, the Notes dated February 28,
1995 currently pertaining to the Agreement shall be deemed null and void and
each Bank shall cancel and return to the Company such Note pertaining to the
Agreement currently in such Bank's possession.
2.3 EFFECTIVENESS OF FEE CHANGES. All fee and interest rate changes set
forth in this Amendment shall be effective only on a prospective basis from the
date hereof.
2.4 OTHER TERMS AND CONDITIONS. Unless amended hereby, all other terms and
conditions of the Agreement shall remain in full force and effect without change
and are hereby ratified and confirmed in all respects.
2.5 GOVERNING LAW. This Amendment and each Note issued pursuant hereto
shall be a contract made under and governed by the internal laws of the State of
Ohio. Wherever possible each provision of this Amendment shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Amendment shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment. All obligations of the Company and
rights of the Banks and any other holders of the Notes expressed herein or in
the Notes shall be in addition to and not in limitation of those provided by
applicable law.
2.6 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Amendment. When counterparts executed
by all the parties shall have been lodged with the Company (or, in the case of
any Bank as to which an executed counterpart shall not have been so lodged, the
Company shall have received telegraphic, telex, or other written confirmation
from such Bank of execution of a counterpart hereof by such Bank), this
Amendment shall become effective as of the date hereof.
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2.7 CAPTIONS. Section captions used in this Amendment are for convenience
only, and shall not affect the construction of this Amendment.
Delivered at Cleveland, Ohio, as of the day and year first above written.
TRW INC.
By /s/ W.C. Seeger, Jr.
----------------------------
William C. Seeger, Jr.
Vice President and Treasurer
1900 Richmond Road
Cleveland, Ohio 44124
Telephone 216/291-7540
Facsimile: 216/291-7831
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BANKS:
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Bank of America National Trust
----- and Savings Association
By: /s/ Deborah Graziano
-----------------------
Name: Deborah Graziano
Title: Vice President
DOMESTIC OFFICE
Bank of America NT & SA
1850 Gateway Boulevard
Concord, California 94520
Telephone: (510) 675-7485
---------------
Facsimile: (510) 675-7531
---------------
Attention: Selina Button
EUROCURRENCY OFFICE
Bank of America NT & SA
1850 Gateway Boulevard
Concord, California 94520
Telephone: (510) 675-7485
---------------
Facsimile: (510) 675-7531
---------------
Attention: Selina Button
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Bank of America
---------------
ABA Routing No.: 121000358
---------------
Account No.: 12331-83980
---------------
Account Name: Incoming Money Transfer
-----------------------
Reference No.: TRW Commitment Fee
------------------
-8-
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Barclays Bank PLC
-----
By: /s/ L. Peter Yetman
-----------------------
Name: L. Peter Yetman
Title: Associate Director
DOMESTIC OFFICE
Barclays Bank PLC
222 Broadway
New York, New York 10038
Telephone: (212) 412-1196
-----------------
Facsimile: (212) 412-1099
-----------------
EUROCURRENCY OFFICE
Barclays Nassau, Bahamas Branch
c/o Barclays Bank PLC
222 Broadway
New York, New York 10038
Telephone: (212) 412-1196
-----------------
Facsimile: (212) 412-1099
-----------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Barclays Bank PLC - New York
----------------------------
ABA Routing No.: 026-002--574
---------------
Account No.: 050-019-104
----------------------
Account Name: TRW
----------------------
Reference No.: TRW Commitment Fee; N. Sangle
------------------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % The Chase Manhattan Bank, N.A.
-----
By: /s/ Joan F. Garvin
-----------------------
Name: Joan F. Garvin
Title: Vice President
DOMESTIC OFFICE
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telephone: (212) 552-2722
--------------
Facsimile: (212) 552-1372
--------------
EUROCURRENCY OFFICE
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telephone:
-------------
Facsimile:
-------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Chase Manhattan Bank
----------------------
ABA Routing No.: 021-000021
----------------------
Account No.: 900-9-000036
----------------------
Account Name: Commercial Loan Opns.
----------------------
Reference No.: TRW Commitment Fee
----------------------
-10-
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Citibank, N.A.
-----
By: /s/ Marjorie Futornick
-----------------------
Name: Marjorie Futornick
Title: Vice President
DOMESTIC OFFICE
Citibank, N.A.
c/o Citicorp N.A., Inc.
200 S. Wacker Dr.
Chicago, IL 60606
Telephone: 312-993-3871
Facsimile: 312-993-6840
EUROCURRENCY OFFICE
Citibank, N.A.
c/o Citicorp N.A., Inc.
200 S. Wacker Dr.
Chicago, IL 60606
Telephone: 312-993-3871
Facsimile: 312-993-6840
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Citibank, N.A., New York
ABA Routing No.: 021000089
Account No.: 38483095
Account Name: Chicago NEO Loan Acct.
-------------------------
Reference No.: TRW Commitment Fee
-11-
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Morgan Guaranty Trust Company
--- of New York
By: /s/ J.M. Mikolay
--------------------------
Name: John M. Mikolay
Title: Vice President
DOMESTIC OFFICE
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Telephone: (302) 634-1800
--------------
Facsimile: (302) 634-1094
--------------
EUROCURRENCY OFFICE
Morgan Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
902 Market Street
Wilmington, Delaware 19801
Telephone: (302) 634-1800
--------------
Facsimile: (302) 634-1094
--------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Morgan Guaranty Trust
---------------------
ABA Routing No.: 021000238
---------------------
Account No.: 999-99-090
---------------------
Account Name: Loan Department
---------------------
Reference No.: TRW Com. Fee
---------------------
Corp. Proc. Module 30
-12-
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % National City Bank
-----
By: /s/ Davis R. Bonner
-------------------------
Name: Davis R. Bonner
Title: Vice President
DOMESTIC OFFICE
National City Bank
National City Center
P.O. Box 5756
Cleveland, Ohio 44101-0756
Telephone: (216) 575-3285
--------------
Facsimile: (216) 575-9396
--------------
EUROCURRENCY OFFICE
National City Bank
National City Center
P.O. Box 5756
Cleveland, Ohio 44101-0756
Telephone: (216) 575-3285
--------------
Facsimile: (216) 575-9396
--------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: National City Bank
------------------
ABA Routing No.: 041000124
------------------
Account No.: 2537557
------------------
Account Name:
------------------
Reference No.: TRW Commitment Fee
------------------
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Amount of Percentage of
Commitment Commitments
$60,000,000 8 % The Sumitomo Bank, Limited
-----
By: /s/ H. Iwami
----------------------------
Name: Hiroyuki Iwami
Title: Joint General Manager
DOMESTIC OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
233 South Wacker Drive, Suite 4800
Chicago, Illinois 60606-6448
Telephone: (312) 876-6431
--------------
Facsimile: (312) 876-6436
--------------
EUROCURRENCY OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
233 South Wacker Drive, Suite 4800
Chicago, Illinois 60606-6448
Telephone: (312) 876-6431
--------------
Facsimile: (312) 876-6436
--------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: FNB of Chicago
------------------
ABA Routing No.: 071000013
------------------
Account No.: 15-01208
------------------
Account Name: Sumitomo Bank Ltd.,
Chicago Branch
------------------
Reference No.: TRW Commitment Fee
------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % Banque Nationale De Paris
-----
By: /s/
-------------------------
Name:
Title:
DOMESTIC OFFICE
Banque Nationale De Paris
Chicago Branch
Rookery Building
209 South LaSalle, 5th Floor
Chicago, Illinois 60604
Telephone: (312) 977-2200
-------------------
Facsimile: (312) 977-1380
-------------------
EUROCURRENCY OFFICE
Banque Nationale De Paris
Chicago Branch
Rookery Building
209 South LaSalle, 5th Floor
Chicago, Illinois 60604
Telephone: (312) 977-2200
-------------------
Facsimile: (312) 977-1380
-------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Banque Nationale de
Paris, New York
Branch
-------------------
ABA Routing No.: 026007689
-------------------
Account No.: 14119400189
-------------------
Account Name: BNP, Chicago Branch
-------------------
Reference No.: TRW Commitment Fee
-------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % Dresdner Bank AG
-----
By: /s/ D. Slusarczyk
-----------------------------
Name: Deborah Slusarczyk
Title: Vice President
By: /s/ Robert Grella
-----------------------------
Name: Robert Grella
Title: Vice President
DOMESTIC OFFICE
Dresdner Bank AG New York Branch
75 Wall Street
New York, New York 10005
Telephone: (212) 429-2244
-----------------------
Facsimile: (212) 429-2524
-----------------------
EUROCURRENCY OFFICE
Dresdner Bank AG Grand Cayman
Branch
c/o Dresdner Bank AG New York Branch
75 Wall Street
New York, New York 10005
Telephone: (212) 429-2244
-----------------------
Facsimile: (212) 429-2524
-----------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Chase Manhattan (NY,NY)
-----------------------
ABA Routing No.: 021-000-021
-----------------------
Account No.: 920-1-059-079
-----------------------
Account Name: Dresdner Bank AG,
New York Branch
-----------------------
Reference No.: TRW Commitment Fee
-----------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % NBD Bank
------
By: /s/ Andrew W. Strait
---------------------------
Name: Andrew W. Strait
Title: Vice President
DOMESTIC OFFICE
NBD Bank
Attention: Mid-Corporate Banking
611 Woodward
Detroit, Michigan 48226
Telephone: (313) 225-3300
--------------------
Facsimile: (313) 225-3269
--------------------
EUROCURRENCY OFFICE
NBD Bank, N.A.
Attention: Mid-Corporate Banking
611 Woodward
Detroit, Michigan 48226
Telephone: (313) 225-3300
--------------------
Facsimile: (313) 225-3269
--------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: NBD Bank
--------------------
ABA Routing No.: 072000326
--------------------
Account No.: 1424183
--------------------
Account Name: Commercial Loans
--------------------
Reference No.: TRW Commitment Fee
--------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % Royal Bank of Canada
-----
By: /s/ P. Shields
----------------------------
Name: Patrick Shields
Title: Manager, Corporate Banking
DOMESTIC OFFICE
Royal Bank of Canada
New York Branch
c/o Financial Square, 23rd Floor
New York, New York 10005
Telephone: (212) 428-6323
---------------------
Facsimile: (212) 428-2372
---------------------
EUROCURRENCY OFFICE
Royal Band of Canada
New York Branch
c/o Financial Square, 23rd Floor
New York, New York 10005
Telephone: (212) 428-6323
---------------------
Facsimile: (212) 428-2372
---------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Chase Manhattan, NY
--------------------
ABA Routing No.: 021000021
--------------------
Account No.: 9201033363
--------------------
Account Name: Royal Bank
--------------------
Reference No.: TRW Commitment Fee
--------------------
-18-
19
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % The Sakura Bank, Limited
-----
By: /s/ Hajime Miyagi
-------------------------
Name: Hajime Miyagi
Title: Joint General Manager
DOMESTIC OFFICE
The Sakura Bank, Limited
Chicago Branch
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Telephone: (312) 580-3276
---------------------
Facsimile: (312) 332-5345
---------------------
EUROCURRENCY OFFICE
The Sakura Bank, Limited
Chicago Branch
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Telephone: (312) 580-3276
---------------------
Facsimile: (312) 332-5345
---------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: FNB of Chicago
---------------------
ABA Routing No.: 071000013
---------------------
Account No.: 1512951
---------------------
Account Name: Sakura Bank Chicago
---------------------
Reference No.: TRW Commitment Fee
---------------------
-19-
20
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Society National Bank
-----
By: /s/ Marianne Meil
--------------------------
Name: Marianne Meil
Title: Assistant Vice President
DOMESTIC OFFICE
Society National Bank
127 Public Square
Cleveland, Ohio 44114
Telephone: (216) 689-4450
---------------------
Facsimile: (216) 689-4981
---------------------
EUROCURRENCY OFFICE
Society National Bank
127 Public Square
Cleveland, Ohio 44114
Telephone: (216) 689-4450
---------------------
Facsimile: (216) 689-4981
---------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: Society National Bank
---------------------
ABA Routing No.: 041001039
---------------------
Account No.: 00100-39140
---------------------
Account Name: Commercial Loan Opns
---------------------
Reference No.: TRW Commitment Fee
---------------------
-20-
21
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % The Tokai Bank, Limited
-----
By: /s/ Tatsuo Ito
-----------------------------
Name: Tatsuo Ito
Title: Joint General Manager
DOMESTIC OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
181 West Madison Street, Suite 3600
Chicago, Illinois 60602
Telephone: (312) 456-3427
----------------------
Facsimile: (312) 977-0003
----------------------
EUROCURRENCY OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
181 West Madison Street, Suite 3600
Chicago, Illinois 60602
Telephone:
----------------------
Facsimile:
----------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: FNB of Chicago
----------------------
ABA Routing No.: 071000013
----------------------
Account No.: 15-08997
----------------------
Account Name: Tokai Bank, Chicago
Branch
----------------------
Reference No.: TRW Commitment Fee
----------------------
Loan Administration
-21-
22
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Union Bank of Switzerland
-----
By: /s/ S. M. Dadmun /s/ E. P. Weinheimer
--------------------------------------
Name: Steven M. Dadmun/
Eric P. Weinheimer
Title: Vice President/
Lending Officer
DOMESTIC OFFICE
Union Bank of Switzerland
Chicago Branch
30 South Wacker Drive, Suite 40
Chicago, Illinois 60606
Telephone: (312) 993-5471
-----------------------
Facsimile: (312) 993-5530
-----------------------
EUROCURRENCY OFFICE
Union Bank of Switzerland
Chicago Branch
30 South Wacker Drive, Suite 40
Chicago, Illinois 60606
Telephone: (312) 993-5471
-----------------------
Facsimile: (312) 993-5530
-----------------------
ELECTRONIC PAYMENT
INSTRUCTIONS
Receiving Bank: FNB of Chicago
-----------------------
ABA Routing No.: 071000013
-----------------------
Account No.: 15-12188
-----------------------
Account Name: UBS, Chicago Branch
-----------------------
Reference No.: TRW Commitment Fee
-----------------------
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Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Wells Fargo Bank, N.A.
-----
By: /s/ Peter G. Olson
-------------------------
Name: Peter G. Olson
Title: SVP
By: /s/ Lancy Gin
-------------------------
Name: Lancy Gin
Title: AVP
DOMESTIC OFFICE
Wells Fargo Bank, N.A.
Special Loan Processing
18700 NW Walker Road, Bldg. 92
Beaverton, OR 97006
Telephone: (503) 614-6436
Facsimile: (503) 614-5878
EUROCURRENCY OFFICE
Wells Fargo Bank, N.A.
Special Loan Processing
18700 NW Walker Road, Bldg. 92
Beaverton, OR 97006
Telephone: (503) 614-6436
Facsimile: (503) 614-5878
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: First Interstate Bank of California
ABA Routing No.: 122000218
Account No.: 3030-98989
Account Name: Special Loan Processing
Reference No.: TRW
- ------------ ----
$750,000,000 100% Total
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Exhibit I
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
MULTI-YEAR REVOLVING CREDIT AGREEMENT
AS AMENDED AND RESTATED
as of May 8, 1996
among
TRW INC.
and
THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE
PAGES HEREOF
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
25
TABLE OF CONTENTS
Page
----
PREAMBLE......................................................................................... 1
SECTION 1 COMMITMENT OF THE BANKS; TYPES
OF LOANS; PROCEDURES FOR BORROWING
OR CONVERTING................................................................ 1
1.1 Commitment................................................................... 1
1.2 Extension of Commitment...................................................... 1
1.3 Various Types of Loans....................................................... 2
1.4 Notice of Borrowing, Continuation, or
Conversion.............................................................. 2
1.5 Conversion and Continuation Procedures....................................... 3
1.6 Negotiated Loans............................................................. 3
1.7 Local Currency Loans......................................................... 3
1.8 Loans to Designated Subsidiaries............................................. 4
1.9 Loans Outstanding Under Prior Facility....................................... 4
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS................................... 4
2.1 Repayment of Loans........................................................... 4
2.2 Notes........................................................................ 4
2.3 Other Provisions of the Notes................................................ 4
2.4 Recordkeeping................................................................ 5
SECTION 3 INTEREST..................................................................... 5
3.1 Interest Rates............................................................... 5
3.2 Interest Payment Dates....................................................... 5
3.3 Interest Periods for Fixed Rate Loans........................................ 6
3.4 Setting and Notice of Rates.................................................. 6
3.5 Computation of Interest...................................................... 6
SECTION 4 FEES ........................................................................ 6
4.1 Commitment Fee............................................................... 6
4.2 Computation of Fees.......................................................... 7
SECTION 5 REDUCTION OR TERMINATION OF THE
COMMITMENTS; PREPAYMENT................................................. 7
5.1 Reduction or Termination of the Commitments.................................. 7
(i)
26
Page
----
5.2 Optional Prepayment.......................................................... 7
5.3 Mandatory Prepayment......................................................... 7
SECTION 6 MAKING AND APPLICATION OF PAYMENTS........................................... 7
6.1 Making of Payments........................................................... 7
6.2 Application of Certain Payments.............................................. 7
6.3 Due Date Extension........................................................... 8
SECTION 7 INCREASED COSTS AND TAXES.................................................... 8
7.1 Increased Capital............................................................ 8
7.2 Increased Costs.............................................................. 9
7.3 Basis for Determining Interest Rate Inadequate............................... 9
7.4 Changes in Law Rendering Certain Loans Unlawful.............................. 10
7.5 Funding Losses............................................................... 10
7.6 Currency Indemnity........................................................... 10
7.7 Increased Tax Costs.......................................................... 11
SECTION 8 WARRANTIES................................................................... 12
8.1 Corporate Organization....................................................... 12
8.2 Authorization; No Conflict................................................... 12
8.3 Validity and Binding Nature.................................................. 12
8.4 Financial Statements......................................................... 12
8.5 Litigation................................................................... 12
8.6 Compliance with ERISA........................................................ 13
8.7 Environmental Matters........................................................ 13
8.8 Taxes........................................................................ 13
8.9 Government Regulation........................................................ 13
SECTION 9 COVENANTS.................................................................... 14
9.1 Reports, Certificates and Other Information.................................. 14
9.1.1 Audit Report.......................................................... 14
9.1.2 Quarterly Reports..................................................... 14
9.1.3 Compliance Certificates............................................... 14
9.1.4 Current Reports....................................................... 14
9.1.5 Other Information..................................................... 14
9.2 Net Worth .................................................................. 14
9.3 Liens........................................................................ 15
9.4 Sale and Leaseback........................................................... 16
9.5 Mergers, Consolidations, Sales............................................... 17
SECTION 10 CONDITIONS OF LENDING........................................................ 17
10.1 Initial Loan to the Company.................................................. 17
10.1.1 Note.............................................................. 17
(ii)
27
Page
----
10.1.2 Resolutions....................................................... 17
10.1.3 Incumbency and Signatures......................................... 18
10.1.4 Opinion of Counsel................................................ 18
10.2 Loans to Designated Subsidiaries............................................. 18
10.2.1 Resolutions....................................................... 18
10.2.2 Acceptance of this Agreement...................................... 18
10.2.3 Incumbency and Signatures......................................... 18
10.3 All Loans .................................................................. 18
10.4 Conversions.................................................................. 19
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT........................................... 19
11.1 Events of Default............................................................ 19
11.1.1 Nonpayment of Notes or Fees....................................... 19
11.1.2 Nonpayment of Other Indebtedness for
Borrowed Money.................................................. 19
11.1.3 Bankruptcy or Insolvency.......................................... 19
11.1.4 Noncompliance with Other Provisions............................... 19
11.1.5 Warranties........................................................ 20
11.1.6 Judgments......................................................... 20
11.2 Effect of Event of Default................................................... 20
SECTION 12 GUARANTY .................................................................. 21
SECTION 13 CERTAIN DEFINITIONS.......................................................... 21
SECTION 14 GENERAL .................................................................. 30
14.1 Waiver; Amendments........................................................... 30
14.2 Confirmations................................................................ 31
14.3 Notices .................................................................. 31
14.4 Computations................................................................. 32
14.5 Confidentiality.............................................................. 32
14.6 Assignments and Participations............................................... 33
14.6.1 Assignments....................................................... 33
14.6.2 Participations.................................................... 33
14.6.3 Disclosure of Information......................................... 33
14.7 Securities Laws.............................................................. 34
14.8 Costs and Expenses........................................................... 34
14.9 Governing Law................................................................ 34
14.10 Counterparts................................................................. 34
14.11 Captions .................................................................. 34
14.12 Successors and Assigns....................................................... 34
14.13 Entire Agreement............................................................. 35
14.14 Appointment of Administrator................................................. 35
14.15 Non-U.S. Bank Tax Information................................................ 35
14.16 Regulation U................................................................. 35
(iii)
28
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Opinion of Counsel to the Company
SCHEDULES
SCHEDULE 1.10 Prior Facilities Pursuant to Section 1.10
SCHEDULE 8.5 Undisclosed Material Legal Proceedings
(iv)
29
MULTI-YEAR REVOLVING CREDIT AGREEMENT
This Multi-Year Revolving Credit Agreement, dated as of July 1, 1992, as
amended pursuant to Agreements dated as of June 30, 1993, March 1, 1994 and
February 28, 1995 and as amended and restated pursuant to an Agreement dated as
of May 8, 1996 (this "Agreement"), is among TRW Inc., an Ohio corporation (the
"Company") and the financial institutions listed on the signature pages hereof
together with their successors or assigns (collectively, the "Banks" and
individually, a "Bank"). Certain terms being used in this Agreement are
hereinafter defined in Section 13.
W I T N E S S E T H:
--------------------
WHEREAS, the Company has requested the Banks to make certain unsecured
loans to the Company and certain Subsidiaries of the Company designated by the
Company for general corporate purposes, including without limitation for working
capital, capital expenditures, acquisitions (directly or indirectly) of assets,
stock or other ownership interests, and repurchases or redemptions of
securities; and
WHEREAS, the Banks have agreed to make such loans on the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the parties hereto agree as follows:
SECTION 1 COMMITMENT OF THE BANKS; TYPES OF LOANS;
PROCEDURES FOR BORROWING OR CONVERTING.
1.1 COMMITMENT. Subject to the terms and conditions of this Agreement, each
of the Banks, severally and for itself alone, agrees to make loans
(collectively, the "Loans" and individually, a "Loan") to the Company and, as
provided in Section 1.8, to any Designated Subsidiary on a revolving basis from
time to time before the Termination Date, as it may be extended from time to
time pursuant to Section 1.2, in such aggregate amounts as the Company or any
Designated Subsidiary may from time to time request from such Bank; provided,
however, that the aggregate principal amount of Loans that any Bank shall be
committed to have outstanding to the Company and the Designated Subsidiaries
shall not at any one time exceed the amount set forth opposite such Bank's
signature hereto, or any subsequent amendment hereto (except to the extent
provided in Section 1.9 hereof). The foregoing commitment of each Bank to make
Loans as reduced from time to time in accordance with the terms hereof is herein
called such Bank's "Commitment" and the commitments of all Banks are herein
sometimes collectively called the "Commitments."
1.2 EXTENSION OF COMMITMENT. No later than 90 days prior to the Termination
Date then in effect, the Company may request, by written notice, that any one or
more of the Banks extend the Termination Date as to that Bank's Commitment for a
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30
period of one year commencing on the Termination Date then in effect. Each Bank
receiving such an extension request from the Company shall notify the Company in
writing no later than 45 days prior to the Termination Date then in effect of
such Bank's determination to extend or not to extend the Termination Date. A
notice given by a Bank to extend the Termination Date pursuant to this Section
1.2 shall be irrevocable (subject to Section 11.2). Any Bank that fails to
respond to the Company's request to extend the Termination Date within such time
period shall be deemed to have given notice to the Company that such Bank does
not desire to extend the Termination Date.
1.3 VARIOUS TYPES OF LOANS. Each Loan shall be either a Base Rate Loan, a
Domestic CD Loan, a Eurocurrency Loan, a Local Currency Loan, or a Negotiated
Loan (each herein called a "type" of Loan), as the Company shall specify in the
related notice of borrowing, Continuation, or Conversion pursuant to Section 1.4
or 1.5. Domestic CD Loans, Eurocurrency Loans, Local Currency Loans, and
Negotiated Loans bearing interest at a fixed rate for a fixed period of time are
sometimes collectively called "Fixed Rate Loans." Each Loan shall be made in
U.S. Dollars or such other currency as is requested by the Company and shall be
available at the time and for the period requested by the Company. Each Loan
shall bear interest at the rate specified in Section 3.1 and shall mature on and
be due and payable in full on the earliest of (i) the Termination Date, (ii) the
end of an Interest Period (unless the Loan is Continued or Converted) or (iii)
such other date as the Company and the Relevant Bank shall otherwise agree in
writing. The Eurocurrency specified in any notice of borrowing, Continuation, or
Conversion given by the Company pursuant to Section 1.4 or 1.5 shall be deemed
to be available for purposes of this Agreement, unless the Relevant Bank gives
the Company notice (which may be by telephone) no later than the earlier of (a)
12:00 noon, Cleveland time, on the second Business Day prior to the proposed
date making the Eurocurrency Loan, or (b) one hour after the Relevant Bank has
received the notice of borrowing, Continuation, or Conversion, as applicable.
The Relevant Bank's determination in good faith that a proposed Eurocurrency is
or is not available shall be final.
1.4 NOTICE OF BORROWING. CONTINUATION. OR CONVERSION. The Company, through
an Authorized Person, shall give written or telephonic notice to the Relevant
Bank of each proposed borrowing from such Bank, or Conversion or Continuation of
Loans made by such Bank, by 11:00 a.m., Cleveland time, (a) on the proposed date
of such borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Base Rate Loans, Domestic CD Loans, or Negotiated
Loans, (b) at least two Business Days prior to the proposed date of such
borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Eurocurrency Loans (provided that at least one
Business Day prior to such written or telephonic notice of proposed nondollar
denominated Eurocurrency Loan borrowing, Continuation or Conversion, the
Company, through an Authorized Person, shall give written or telephonic notice
to the Relevant Bank of the Company's intention to request a Eurocurrency Loan),
and (c) with respect to Local Currency Loans, at least two Business Days prior
to the proposed date of such borrowing, Conversion, or
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Continuation or such other period of time as is customary for the particular
Local Currency. Each such notice shall be effective upon receipt by the Relevant
Bank and shall specify the date, amount, currency, and type of borrowing and, in
the case of a borrowing comprising Fixed Rate Loans, the initial Interest Period
for such borrowing. Each notice of a Conversion or Continuation of Loans shall
specify the date and amount of such Conversion or Continuation, the Loans to be
so Converted or Continued, the type and currency of Loans to be Converted into
or Continued, and, in the case of a Conversion into or Continuation of Fixed
Rate Loans, the initial or succeeding Interest Period, as the case may be. Each
borrowing shall be on a Business Day and shall be in an aggregate amount of not
less than 1,000,000 U.S. Dollars for Base Rate Loans and not less than 5,000,000
U.S. Dollars (or the Eurocurrency Equivalent Amount) for any other type of Loan,
other than Local Currency Loans (which shall be as agreed between the Company
and the Relevant Bank).
1.5 CONVERSION AND CONTINUATION PROCEDURES. The Company may convert all or
part of any outstanding Loans to Loans of a different type, or may elect to
continue any Fixed Rate Loans for an additional Interest Period, by giving
notice to the Relevant Bank of such Conversion or Continuation within the time
periods specified in Section 1.4. If, with respect to any Fixed Rate Loan, the
Company shall not either repay the Loan in full by 2:00 p.m., Cleveland time, on
the last day of the Interest Period applicable thereto or give notice of its
intention to Convert or Continue such Fixed Rate Loan within the time periods
specified in Section 1.4, then the Company shall be deemed to have requested
that such Loan automatically be converted into a Base Rate Loan at the end of
such Interest Period (and such Loan shall automatically so Convert into a Base
Rate Loan at the end of such Interest Period). Except as provided in Section
7.4, no Fixed Rate Loans shall be Converted on any day other than the last day
of the current Interest Period relating to such Loans.
1.6 NEGOTIATED LOANS. From time to time, the Company may request, through
an Authorized Person, and a Bank may, but shall not be obligated to, agree to
make, a Loan in U.S. Dollars bearing interest at a rate per annum, and for a
fixed period, agreed to by the Relevant Bank and the Company (each, a
"Negotiated Loan" and collectively, the "Negotiated Loans").
1.7 LOCAL CURRENCY LOANS. From time to time, the Company may request,
through an Authorized Person, and a Bank may, but shall not be obligated to,
agree to make a Loan in a Local Currency specified by the Company bearing
interest at a rate per annum agreed to by the Bank and the Company (each, a
"Local Currency Loan" and collectively, the "Local Currency Loans"). Repayments
of principal of and interest on Local Currency Loans shall be made in the
currency borrowed and shall be paid to the local office of the Relevant Bank
which made the Loan. The local office may request additional documentation of
the indebtedness if customary at the place of business of the branch; provided,
however, that the terms and conditions of that documentation shall be consistent
with those set forth in this Agreement unless unlawful or ineffective under
local law.
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32
1.8 LOANS TO DESIGNATED SUBSIDIARIES. Each Designated Subsidiary may
request, through an Authorized Person, Local Currency Loans or Eurocurrency
Loans and Convert or Continue such Loans, and shall repay the principal of and
accrued interest on such Loans, all as though the Designated Subsidiaries were
parties to this Agreement and references to the "Company" in Sections 1.3, 1.4,
1.5, 1.7, 2.1, 3.1, 3.4, 3.5, 5.2 and 6.1 shall mean and include the Designated
Subsidiaries. The Relevant Bank may request additional documentation of the
indebtedness if customary at the place of business of the Relevant Bank;
provided, however, that the terms and conditions of that documentation shall be
consistent with those set forth in this Agreement unless unlawful or ineffective
under local law.
1.9 LOANS OUTSTANDING UNDER PRIOR FACILITY. Effective as of the date on
which the conditions of lending set forth in Section 10.1 and 10.3 are
satisfied, (i) the facility under this Agreement shall replace the facilities
under the credit agreements set forth on Schedule 1.10 (the "Prior Facilities'),
(ii) all loans outstanding under the Prior Facilities shall be and shall be
deemed to be outstanding under this Agreement (with all such loans retaining the
interest rate, maturity, interest period and similar terms as existed
immediately prior to the termination of the Prior Facilities; provided, however,
that if any such loan under the Prior Facilities exceeds the Bank's Commitment
hereunder and if such Bank's commitment under the Prior Facilities exceeds such
Bank's Commitment hereunder, then such Bank's commitment under the Prior
Facilities will be deemed such Bank's Commitment hereunder until such loan that
previously existed under the Prior Facilities has been repaid according to its
original terms) and (iii) the obligations of the banks under the Prior
Facilities shall terminate and be discharged.
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS.
2.1 REPAYMENT OF LOANS. The Company hereby promises to pay to each Bank the
aggregate unpaid principal amount of such Bank's Loans on the earliest of (i)
the Termination Date, (ii) the end of the applicable Interest Period for such
Loan (unless the Loan is Continued or Converted) or (iii) such other date as the
Company and the Relevant Bank may agree in writing. Repayment of any
Eurocurrency Loan shall be in the same currency in which such Loan was advanced.
2.2 NOTES. The Loans of each Bank shall be evidenced by a promissory note
(individually, a "Note", and collectively for all Banks, the "Notes")
substantially in the form set forth in Exhibit A, with appropriate insertions,
dated the date of the initial Loan (or such earlier date as shall be
satisfactory to the Relevant Bank), payable to the order of such Bank in the
principal amount of such Bank's Commitment (or, if less, in the aggregate unpaid
principal amount of all of such Bank's Loans hereunder).
2.3 OTHER PROVISIONS OF THE NOTES. Each Note shall provide for the payment
of interest as provided in Section 3.
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2.4 RECORDKEEPING. Each Bank shall record in its records, or at its option
on the schedule attached to its Note, the date, amount, and type of each Loan
made by such Bank, each repayment, Continuation, or Conversion thereof, and the
dates on which each Interest Period for each Fixed Rate Loan shall begin and
end. The aggregate unpaid principal amount so recorded shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on such Note. The
failure so to record any such amount or any error in so recording any such
amount, however, shall not limit or otherwise affect the obligations of the
Company hereunder or under any Note to repay the principal amount of the Loans,
together with all interest accruing thereon.
SECTION 3 INTEREST.
3.1 INTEREST RATES. With respect to each Loan, the Company hereby promises
to pay interest on the unpaid principal amount thereof for the period commencing
on the date of such Loan until such Loan is paid in full, as follows:
(a) At all times while such Loan is a Base Rate Loan, at a rate per annum
equal to the Base Rate from time to time in effect;
(b) At all times while such Loan is a Domestic CD Loan, during each
Interest Period, at a rate per annum equal to the Domestic CD Rate
(Adjusted) applicable to such Interest Period, plus the Applicable
Margin;
(c) At all times while such Loan is a Eurocurrency Loan, during each
Interest Period, at a rate per annum equal to the Eurocurrency Rate
(Reserve Adjusted) applicable to such Interest Period, plus the
Applicable Margin; and
(d) At all times while such Loan is a Negotiated Loan or a Local Currency
Loan, at the rate per annum agreed to by the Company and the Relevant
Bank pursuant to Section 1.6 or 1.7, as applicable.
Notwithstanding the provisions of the preceding clauses (a), (b), (c) or
(d) and subject to Section 1.5, in the event that any principal of any Loan is
not paid when due (whether by acceleration or otherwise), after the due date of
such principal until such principal is paid, the unpaid principal amount of, and
accrued but unpaid interest on, Revolving Loan shall bear interest at a rate per
annum equal to the higher of the rate borne by such Loan or the Relevant Bank's
Base Rate from time to time in effect, plus 1% per annum, subject to the maximum
applicable legal rate.
3.2 INTEREST PAYMENT DATES. Accrued interest on each Base Rate Loan
outstanding for 45 days or more shall be payable (i) quarterly in arrears on the
tenth day of each April, July, October, and January for the quarterly period
ended on the last day of the preceding month, and (ii) at maturity, commencing
with the earlier of such dates to occur after the date hereof. Accrued interest
on each Base Rate Loan outstanding for less than 45 days shall be payable in
full on the date
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34
such Base Rate Loan is paid in full. Except as otherwise agreed by the Relevant
Bank, accrued interest on each Fixed Rate Loan shall be payable on the last day
of the Interest Period of each such Loan (or, in the case of a Domestic CD Loan
or Negotiated Rate Loan with an Interest Period of 90 days or longer or a
Eurocurrency Loan with an Interest Period of three months or longer, accrued
interest shall be payable quarterly in arrears on the tenth day of each April,
July, October and January and on the last day of each such Interest Period).
After maturity, accrued interest on all Loans shall be payable on demand.
Interest on any Eurocurrency Loan shall be paid in the same currency in which
such Loan was advanced.
3.3 INTEREST PERIODS FOR FIXED RATE LOANS. Prior to each borrowing,
Continuation, or Conversion of Fixed Rate Loans, the Company shall specify, in
the related notice of borrowing, Continuation, or Conversion pursuant to
Sections 1.4 or 1.5, the duration of the Interest Period for such Fixed Rate
Loans. Each notice to the Relevant Bank of an Interest Period shall be in
writing or by telephone and shall be given by an Authorized Person.
3.4 SETTING AND NOTICE OF RATES. For each Loan made hereunder, the
applicable interest rate for each Interest Period or other period shall be the
rate quoted by the Relevant Bank to the Company for that particular type of
Loan. The Relevant Bank shall, upon written request of the Company, deliver to
the Company a statement showing the calculation of (i) any applicable Domestic
CD Rate (Adjusted), (ii) any applicable Eurocurrency Rate (Reserve Adjusted) or
(iii) the rate of interest per annum applicable to Negotiated Loans or Local
Currency Loans hereunder.
3.5 COMPUTATION OF INTEREST. Interest shall be computed for the actual
number of days elapsed (with interest accruing on the first day, but not the
last day, of such Loan) on the basis of (a) with respect to Domestic CD Loans
and Eurocurrency Loans, a 360 day year, (b) with respect to Base Rate Loans, a
365 or 366 day year, as the case may be, (c) with respect to Negotiated Loans, a
365 or 366 day year, as the case may be, or such other basis as is agreed to by
the Company and the Relevant Bank, and (d) with respect to Local Currency Loans,
on a basis consistent with local customs that is agreed to by the Relevant Bank
and the Company.
SECTION 4 FEES.
4.1 COMMITMENT FEE. The Company agrees to pay to each Bank a commitment
fee, for the period from and including the date of this Agreement to the
Termination Date, on the daily average of the Unused Amount of such Bank's
Commitment hereunder equal to the Applicable Commitment Fee in effect from time
to time times the Unused Amount. Such commitment fee shall be payable quarterly
in arrears on the tenth day of each April, July, October, and January (the first
such payment to be made on October 10, 1992) for the quarterly period ended on
the last day of the preceding month and on the Termination Date. The
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35
Company may make such payments according to the Electronic Payment Instructions.
4.2 COMPUTATION OF FEES. Fees shall be computed for the actual number of
days elapsed on the basis of a 365 or 366 day year, as the case may be.
SECTION 5 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENT.
5.1 REDUCTION OR TERMINATION OF THE COMMITMENTS. The Company may from time
to time prior to the Termination Date on at least three Business Days' prior
written notice given by an Authorized Person to any Bank permanently reduce the
amount of such Bank's Commitment to an amount not less than the aggregate unpaid
principal amount of the Loans made by such Bank then outstanding. Any such
reduction shall be in an aggregate amount of not less than 1,000,000 U.S.
Dollars, or such lesser amount of such Bank's Unused Amount then remaining.
5.2 OPTIONAL PREPAYMENT. The Company may from time to time prepay the Loans
in whole or in part, provided that (a) an Authorized Person shall give the
Relevant Bank not less than three Business Days' prior notice thereof,
specifying the Loans to be prepaid, and the date and amount of prepayment and
(b) each partial prepayment shall be in the principal amount of 1,000,000 U.S.
Dollars (or the Eurocurrency or Local Equivalent Amount thereof) or such lesser
amount as is then outstanding on the Loan being prepaid.
5.3 MANDATORY PREPAYMENT. On each day on which the aggregate outstanding
principal amount of Loans owing to any Bank on such day exceeds (whether as a
result of currency fluctuations or otherwise) such Bank's Commitment hereunder,
the Company shall pay to such Bank on demand a mandatory prepayment in the
amount of such excess. Mandatory prepayments required by this Section 5.3 shall
be applied first to Base Rate Loans until paid in full and then, at the
Company's election and in the order specified by the Company, to Fixed Rate
Loans.
SECTION 6 MAKING AND APPLICATION OF PAYMENTS.
6.1 MAKING OF PAYMENTS. Except as otherwise provided in Section 11.2
hereof, all payments (including those made pursuant to Section 5) of principal
of, or interest on, the Loans shall be made by the Company to the Relevant Bank
in immediately available funds in the Obligation Currency.
6.2 APPLICATION OF CERTAIN PAYMENTS. Each payment of principal on any Loan
shall be applied first to Base Rate Loans and then to such of the other Loans as
the Company shall direct by written or telephonic notice given by an Authorized
Person to the Relevant Bank on or before the date of such payment, or in the
absence of such notice, as the Relevant Bank shall determine in its discretion.
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36
6.3 DUE DATE EXTENSION. If any payment of principal or interest with
respect to any of the Loans or Notes falls due on a Saturday, Sunday, or other
day which is not a Business Day, then such due date shall be extended to the
next following Business Day (except as provided in the last sentence of the
definition of Interest Period), and additional interest shall accrue and be
payable for the period of such extension.
SECTION 7 INCREASED COSTS AND TAXES.
7.1 Increased Capital.
-----------------
(a) If, after the date of this Agreement, the adoption of any applicable
law, rule, or regulation regarding capital adequacy, or any change
therein, or change in the interpretation or administration thereof by
any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank, or comparable agency, has the effect of
reducing the rate of return on such Bank's capital as a consequence
of its obligations hereunder to a level below that which such Bank
would have achieved but for such adoption, change, or compliance
(taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material,
then from time to time within 15 days after demand by such Bank, the
Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction; provided, that, no Bank
shall request, and the Company shall not be obligated to pay, any
amounts in excess of the amounts charged by such Bank to similarly
situated borrowers of such Bank under revolving credit facilities
similar to the one provided herein. Notwithstanding the foregoing, a
Bank shall not be entitled to compensation from the Company for any
such additional amounts incurred more than 30 days before the date on
which the Bank notifies the Company of any event which would entitle
the Bank to compensation pursuant to this Section 7.1.
(b) Each Bank will promptly notify the Company of any event of which it
has knowledge that will entitle such Bank to compensation pursuant to
this Section 7.1, together with a certificate signed by an authorized
officer of the Bank setting forth the basis of such demand and
certifying that the amounts demanded hereunder are not in excess of
the amounts charged by such Bank to similarly situated borrowers of
such Bank under revolving credit facilities similar to the one
provided herein. The Bank will designate a different lending office
if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank or contrary to its
stated policies. The Bank's certification of the additional
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amount or amounts to be paid to it hereunder shall be conclusive in
the absence of demonstrable error. In determining such amount, such
Bank may use reasonable averaging and attribution methods.
7.2 INCREASED COSTS. If, after the date hereof, the adoption of any
applicable law, rule, or regulation or any change therein, or any change in the
interpretation or administration thereof, or compliance by any Bank with any
request, or directive (whether or not having the force of law) of any such
authority, central bank, or comparable agency,
(a) shall subject any Bank to any tax, duty, or other charge with respect
to its Fixed Rate Loans, its Notes or its obligation to make Fixed
Rate Loans, or shall change the basis of taxation of payments to any
Bank of the principal of or interest on its Fixed Rate Loans or any
other amounts due under this Agreement in respect of its Fixed Rate
Loans or its obligation to make Fixed Rate Loans (except for the
imposition of any tax or changes in the rate of tax imposed on the
overall income of such Bank); or
(b) shall impose, modify, or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to Section 3), special
deposit, or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Bank;
and as a result of any of the foregoing the cost to such Bank of making or
maintaining any Fixed Rate Loan is increased (or a cost is imposed on such
Bank), or the amount of any sum received or receivable by such Bank under this
Agreement or under its Notes with respect thereto is reduced, then within 15
days after demand by such Bank (which demand shall be accompanied by a statement
setting forth the basis of such demand), the Company shall pay directly to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or such reduction. Notwithstanding the foregoing, a Bank shall
not be entitled to any compensation from the Company for any such increased cost
or such reduction attributable to any period that is more than 30 days before
the date on which the Bank notifies the Company of any event which would entitle
the Bank to compensation pursuant to this Section 7.2. No Bank is entitled to
reimbursement for any amounts paid as a result of taxes currently imposed on
such Bank.
7.3 BASIS FOR DETERMINING INTEREST RATE INADEQUATE. If with respect to any
Interest Period:
(a) a Bank reasonably determines that deposits in a requested
Eurocurrency (in the applicable amounts) are not being offered to the
Bank in the relevant market for such Interest Period requested by the
Company, or a Bank otherwise reasonably determines (which
determination shall be binding and conclusive on all parties) that by
reason of circumstances affecting the interbank eurocurrency market
adequate and reasonable
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means do not exist for ascertaining the applicable Eurocurrency Rate
(Reserve Adjusted); or
(b) a Bank advises the Company that the making or funding of Eurocurrency
Loans has become impracticable as a result of an event occurring
after the date of this Agreement which in the opinion of such Bank
materially affects Eurocurrency Loans,
then: (i) the affected Bank shall promptly notify the Company of such
circumstance, (ii) so long as such circumstances shall continue the affected
Bank shall not be under any obligation to make, Continue, or Convert Loans into
Eurocurrency Loans, and (iii) on the last day of the then current Interest
Period for Eurocurrency Loans, such Eurocurrency Loans shall, unless then repaid
in full or Converted into a Loan of a different type pursuant to Section 1.5,
automatically Convert to Base Rate Loans.
7.4 CHANGES IN LAW RENDERING CERTAIN LOANS UNLAWFUL. In the event that
there occurs after the date hereof any change in applicable laws or regulations
(including the adoption of any new laws), or any change in the interpretation of
applicable laws or regulations by any governmental or other regulatory body
charged with the administration thereof, that makes it unlawful for a Bank to
make, maintain, or fund a type of Fixed Rate Loans, then (a) such Bank shall
promptly notify the Company of such circumstance, (b) the obligation of such
Bank to make, Continue, or Convert Loans into the type of Fixed Rate Loans made
unlawful for that Bank shall, upon the effectiveness of such event, be suspended
for the duration of such unlawfulness, and (c) on the last day of the current
Interest Period for Fixed Rate Loans of such type (or, in any event, if the Bank
affected by such change so requests, on such earlier date as may be required by
the relevant law, regulation, or interpretation), the Fixed Rate Loans of such
type made by such Bank shall, unless then repaid in full or Converted into a
Loan of a different type pursuant to Section 1.5, automatically Convert to Base
Rate Loans.
7.5 FUNDING LOSSES. The Company hereby agrees that upon demand by any Bank
(which demand shall be accompanied by a statement setting forth the basis for
the calculations of the amount being claimed), the Company will indemnify such
Bank against any net loss or expense which such Bank sustains or incurs
(including, without limitation, any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such Bank
to fund or maintain Fixed Rate Loans), as reasonably determined by such Bank, as
a result of (a) any payment or prepayment or Conversion of any Fixed Rate Loan
of such Bank on a date other than the last day of an Interest Period for such
Loan, or (b) any failure of the Company to borrow, Continue, or Convert any
Loans on a date specified therefor in a notice of borrowing (which shall not
include the Company's notice of intention to request a Eurocurrency Loan),
Continuation, or Conversion pursuant to this Agreement.
7.6 CURRENCY INDEMNITY.
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(a) The obligation of the Company under this Agreement and the Notes
to make payments in Dollars or in any Eurocurrency or Local
Currency in which the Loans or any portion thereof are outstanding
(the "Obligation Currency") shall not be discharged or satisfied
by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency,
except to the extent to which such tender or recovery shall result
in the effective receipt by the Banks of the full amount of the
Obligation Currency expressed to be payable under this Agreement
or the Notes. If, for the purpose of obtaining or enforcing
judgment against the Company in any court or in any jurisdiction,
it becomes necessary to convert into any currency other than the
Obligation Currency (such other currency being hereinafter
referred to as the "Judgment Currency") an amount due in the
Obligation Currency under the Notes, the conversion shall be made,
at the option of the Relevant Bank, at the rate of exchange
prevailing on the Business Day immediately preceding the day on
which the judgment is given (such Business Day as the case may be,
being hereinafter in this Section 7.6 referred to as the "Judgment
Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Company agrees to pay such
additional amounts as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the
amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or
judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) Any amount due from the Company under the foregoing subparagraph
will be due as a separate debt and shall not be affected by
judgment being obtained for any other sums due otherwise
hereunder.
7.7 INCREASED TAX COSTS. The Company agrees to make all payments or
reimbursements under this Agreement free and clear of, and without deduction
for, any future taxes (including withholding taxes) imposed (except for any tax
or changes in the rate of tax imposed on overall income of any Bank) on payments
of principal, interest and fees or charges under the Agreement which are
attributable to, or represent, the application of any such tax for any time
period after the Company has received notice of such tax from such Bank. Such
Bank will use its reasonable efforts to minimize any taxes and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such tax(es) and will not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank or contrary to its stated
policies. In the event that the Company is required to directly pay any such
taxes, the Company agrees to furnish such Bank with official tax receipts
evidencing payment of such taxes within forty-five (45) days after the due date
for each such payment. Each Bank agrees that in the event that any such
additional amount paid or reimbursed by the
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Company to or for such Bank in respect of any taxes be recovered, in whole or in
part, by such Bank (by credit, offset, deduction or otherwise), against or in
computing any income, franchise or other taxes, such Bank will promptly
reimburse the Company the amount of such recovery. A transferee of any interest
in the Agreement or the Notes shall not be entitled to the benefits of this
Section 7.7 with respect to any taxes which would not have been incurred if
there had been no transfer.
SECTION 8 WARRANTIES.
The Company warrants to the Banks as of the date of this Agreement that:
8.1 CORPORATE ORGANIZATION. The Company is a corporation duly incorporated
and in good standing under the laws of the State of Ohio and the Company is duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction of the United States where, because of the nature
of its activities or properties, such qualification is required and where the
failure to be so qualified would materially and adversely affect the
consolidated financial condition of the Company and its Consolidated
Subsidiaries taken as a whole.
8.2 AUTHORIZATION; NO CONFLICT. The execution, delivery, and performance by
the Company of this Agreement and the Notes are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any provision of applicable law in
effect on the date hereof or of the Amended Articles of Incorporation or
Regulations of the Company or of any agreement for borrowed money or other
material agreement binding upon the Company. The Company has duly executed and
delivered this Agreement.
8.3 VALIDITY AND BINDING NATURE. This Agreement is, and the Notes when duly
executed and delivered will be, legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms.
8.4 FINANCIAL STATEMENTS. The Company's audited consolidated financial
statements as at December 31, 1991 and its unaudited consolidated financial
statements as at March 31, 1992, copies of which have been furnished to each
Bank, have been prepared in accordance with GAAP, applied on a basis consistent
with that of the preceding fiscal year, and fairly present in all material
respects the consolidated financial condition and results of operations of the
Company and its Consolidated Subsidiaries as of the dates and for the periods
indicated, as applicable, and since the dates thereof until the date of this
Agreement there has been no material adverse change in the consolidated
financial condition of the Company and its Consolidated Subsidiaries taken as a
whole.
8.5 LITIGATION. Except as set forth in Schedule 8.5, there are no material
legal proceedings, other than ordinary routine litigation incidental to the
business, to
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which the Company or any of its Consolidated Subsidiaries is a party or to which
any of their respective properties is subject that are required to be disclosed
in the Company's periodic reports under the Securities Exchange Act of 1934 and
that have not been so disclosed.
8.6 COMPLIANCE WITH ERISA. Each member of the controlled group of
corporations (as defined in Section 414(b) of the Internal Revenue Code of
1986), which includes the Company (the "TRW Group"), has (i) fulfilled its
obligations under the minimum funding standards of Part 3 of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA") and Section 412 of the
Internal Revenue Code of 1986 ("Code") with respect to each defined benefit plan
(as defined in Section 3 (35) of ERISA) maintained by a member of the TRW Group
("Plan") and (ii) is in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each such Plan. No
member of the TRW Group has (x) sought a waiver of the minimum funding standard
under Section 412 of the Code in respect of any Plan, (y) failed to make any
contribution or payment required to be made to a Plan or to any multi-employer
plan (as defined in Section 3 (37)(A) of ERISA) or made any amendment to any
Plan which has resulted or could result in the imposition of a lien or the
posting of a bond or other security under ERISA or the Code or (z) incurred any
liability under Title IV of ERISA other than the liability to the Pension
Benefit Guaranty Corporation for premiums under Section 4007 of ERISA.
8.7 ENVIRONMENTAL MATTERS. The Company has conducted periodic reviews of
the effect of compliance with federal, state and local requirements relating to
the discharge of materials into the environment, in the course of which it has
identified and evaluated potential liabilities and costs. The Company has
established accruals for matters that are probable and reasonably estimable as
required by FASB Statement No. 5, "Accounting for Contingencies." To the
Company's knowledge, any liability that may result from the resolution of known
environmental matters in excess of amounts accrued therefor will not have a
material adverse effect on the financial position of the Company.
8.8 TAXES. The Company and its Consolidated Subsidiaries have filed all
United States federal income tax returns and all other material tax returns
which are required to have been filed by them (subject to any available
extensions) and have paid all taxes indicated as due on such returns. The
Company has made adequate and reasonable provision for all material taxes not
yet due and payable, if any, and all material assessments, if any.
8.9 GOVERNMENT REGULATION. Neither the Company nor any of its Consolidated
Subsidiaries is registered as a public utility under the Public Utility Holding
Company Act of 1935 or as an investment company under the Investment Company Act
of 1940.
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SECTION 9 COVENANTS.
Until the later of (i) the expiration or termination of the Commitments and
(ii) all obligations of the Company hereunder and under the Notes are paid in
full, the Company agrees that, unless at any time the Majority Banks shall
otherwise expressly consent in writing:
9.1 REPORTS. CERTIFICATES AND OTHER INFORMATION.
9.1.1 AUDIT REPORT. Within 120 days after each fiscal year of the
Company, the Company will provide to each Bank a copy of the Company's Annual
Report to Shareholders and its Annual Report on Form 10-K for the year then
ended, as filed with the Securities and Exchange Commission and which will
include an annual audit report of the Company, prepared on a consolidated basis
and in accordance with the Company's then current method of accounting, which
methods must be in accordance with GAAP, duly certified by independent certified
public accountants of nationally recognized standing selected by the Company.
9.1.2 QUARTERLY REPORTS. Within 60 days after each quarter (except
the last quarter) of each fiscal year of the Company, the Company will provide
to each Bank a copy of the Company's Quarterly Report on Form 10-Q for the
quarter then ended, as filed with the Securities and Exchange Commission.
9.1.3 COMPLIANCE CERTIFICATES. Contemporaneously with the
furnishing of a copy of each Annual Report on Form 10-K provided for in Section
9.1.1 and of each Quarterly Report on Form 10-Q provided for in Section 9.1.2,
the Company will provide to each Bank a duly completed certificate in the form
of Exhibit B with appropriate insertions (each such certificate called a
"Compliance Certificate"), dated not more than 10 days prior to the date
furnished, signed by an officer of the Company, showing compliance with the
Consolidated Net Worth covenant set forth in Section 9.2, and to the effect that
no Event of Default or Unmatured Event of Default has occurred and is continuing
or, if there is any such an event, describing it and the steps, if any, being
taken to cure it.
9.1.4 CURRENT REPORTS. The Company will provide to each Bank
copies of each Current Report on Form 8-K filed by the Company with the
Securities and Exchange Commission, promptly upon the filing thereof.
9.1.5 OTHER INFORMATION. The Company will provide to a Bank such
other information concerning the Company as such Bank may reasonably request
from time to time.
9.2 NET WORTH. The Company will not permit Consolidated Net Worth to be
less than 1,600,000,000 U.S. Dollars less an amount equal to the lesser of (i)
the aggregate amount expended by the Company subsequent to December 31, 1995 for
the repurchase of its common stock and (ii) 600,000,000 U.S. Dollars.
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9.3 LIENS.
(a) The Company will not, and will not permit any Domestic Subsidiary
to, directly or indirectly, create or assume any mortgage,
encumbrance, lien, pledge, charge, or security interest of any
kind (collectively and individually, a "mortgage" or "lien") upon
or in any of its interests in any Principal Property or upon or in
any shares of capital stock or indebtedness of any Domestic
Subsidiary, whether such interest, capital stock or indebtedness
is now owned or hereafter acquired, if such mortgage secures or is
intended to secure, directly or indirectly, the payment of any
indebtedness for money borrowed evidenced by notes, bonds,
debentures, or other written evidences of indebtedness (such
indebtedness for money borrowed being hereafter in Sections 9.3
and 9.4 collectively called "Debt") without making effective
provision, and the Company in such case will make or cause to be
made effective provision, whereby all of the Loans shall be
secured by such mortgage equally and ratably with any other Debt
thereby secured; excluding, however, from the operation of this
Section 9.3:
(i) mortgages on any Principal Property acquired, constructed,
or improved by the Company or any Domestic Subsidiary after
July 1, 1992 which are created or assumed contemporaneously
with, or within 120 days after, such acquisition or
completion of such construction or improvement to secure or
provide for the payment of any part of the purchase price of
such Principal Property or the cost of such construction or
improvement incurred after July 1, 1992, or, in addition to
mortgages contemplated by clauses (ii) and (iii) below,
mortgages on any such Principal Property existing at the
time or placed thereon at the time of acquisition or leasing
thereof by the Company or any Domestic Subsidiary, or
conditional sales agreements or other title retention
agreements with respect to any Principal Property now owned
or leased or hereafter acquired or leased by the Company or
a Domestic Subsidiary;
(ii) mortgages on property (including shares of capital stock or
indebtedness of a corporation) of a corporation existing at
the time such corporation becomes a Domestic Subsidiary or
is merged or consolidated with the Company or a Domestic
Subsidiary or existing at the time of a sale, lease, or
other disposition of the properties of such corporation (or
a division thereof) or other Person as an entirety or
substantially as an entirety (which includes the sale,
lease, or other disposition of all or substantially all the
assets thereof) to the Company or a Domestic Subsidiary,
provided that no such mortgage shall extend to any other
Principal Property of the Company or any Domestic Subsidiary
or to any shares of capital stock or any indebtedness of any
Domestic Subsidiary;
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(iii) mortgages created by the Company or a Domestic Subsidiary to
secure indebtedness of the Company or a Domestic Subsidiary
to the Company or to a Wholly Owned Domestic Subsidiary;
(iv) mortgages in favor of the United States of America or any
State, territory or possession thereof, or any foreign
country or any department, agency, instrumentality, or
political subdivision of any of such domestic or foreign
jurisdictions to secure partial, progress, advance, or other
payments pursuant to any contract or statute or to secure
any debt incurred for the purpose of financing all or any
part of the purchase price of, or the cost of constructing,
the property subject to such mortgages; and
(v) mortgages for the sole purpose of extending, renewing, or
replacing (or successively extending, renewing, or
replacing) in whole or in part any mortgage existing on July
1, 1992 or referred to in the foregoing clauses (i) to (iv)
inclusive or of any debt secured thereby; provided, however,
that the principal amount of indebtedness secured thereby
shall not exceed the principal amount of indebtedness so
secured at the time of such extension, renewal, or
replacement, and that such extension, renewal, or
replacement mortgage shall be limited to all or a part of
the property which secured the mortgage so extended,
renewed, or replaced (plus improvements on such property).
(b) Notwithstanding the provisions of paragraph (a) of this Section
9.3, the Company or any Domestic Subsidiary may, without equally
and ratably securing all the Loans, create or assume mortgages
which would otherwise be subject to the foregoing restrictions if
at the time of such creation or assumption, and after giving
effect thereto, Exempted Indebtedness does not exceed 15% of
Consolidated Net Tangible Assets determined as of a date not more
than 90 days prior thereto.
9.4 SALE AND LEASEBACK.
(a) The Company will not, and will not permit any Domestic Subsidiary
to, sell, lease or transfer any Principal Property owned by the
Company or a Domestic Subsidiary as an entirety, or any
substantial portion thereof, to anyone other than a Wholly Owned
Domestic Subsidiary (or the Company or a Wholly Owned Domestic
Subsidiary in the case of a Domestic Subsidiary) with the
intention of taking back a lease of such property (herein referred
to as a "Sale and Leaseback Transaction") except a lease for a
period of not more than 36 months by the end of which it is
intended that the use of such property by the lessee will be
discontinued; provided, that, notwithstanding the foregoing, the
Company or any Domestic Subsidiary may sell any such property and
lease it back if the net proceeds of such sale are at least equal
to the fair value (as determined by resolution adopted by the
Board of Directors of the
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Company) of such property, and (i) the Company or such Domestic
Subsidiary would be entitled pursuant to paragraph (a) of Section
9.3 to create Debt secured by a mortgage on the property to be
leased in an amount equal to the Attributable Debt with respect to
such Sale and Leaseback Transaction without equally and ratably
securing all the Loans, or (ii) if such sale or transfer does not
come within the exception provided by the preceding clause (i),
the net proceeds of such sale shall, and in any such case the
Company covenants that they will, within 120 days after such sale,
be applied (to the greatest extent possible) either to the
repayment of the Loans then outstanding when due (whereupon the
Commitments hereunder shall be reduced, on a pro rata basis, to
the extent that such net proceeds are so applied) or to the
retirement of other Consolidated Funded Debt of the Company
ranking at least on a parity with the Loans, or in part to one or
more of such alternatives and in part to another.
(b) Notwithstanding the provisions of paragraph (a) of this Section
9.4, the Company or any Domestic Subsidiary may enter into Sale
and Leaseback Transactions if, at the time of such entering into,
and after giving effect thereto, Exempted Indebtedness does not
exceed 15% of Consolidated Net Tangible Assets determined as of a
date not more than 90 days prior thereto.
9.5 MERGERS, CONSOLIDATIONS, SALES. The Company shall not consolidate with,
or sell or convey all or substantially all its assets to, or merge into, any
other Person, unless (a) the Company is the surviving corporation of such
transaction; or (b) the Company is the nonsurviving party to a merger or
consolidation, the primary purpose of which is to effect a reincorporation of
the Company under the laws of another state.
SECTION 10 CONDITIONS OF LENDING.
The obligation of each Bank to make its Loans is subject to the following
conditions precedent:
10.1 INITIAL LOAN TO THE COMPANY. The obligation of each Bank to make its
initial Loan to the Company is, in addition to the conditions precedent
specified in Section 10.3, subject to the condition precedent that such Bank
shall have received all of the following, each duly executed and dated the date
of such Loan (or such earlier date as shall be satisfactory to such Bank), in
form and substance satisfactory to such Bank:
10.1.1 NOTE. The Note of the Company payable to the order of such
Bank, substantially in the form of Exhibit A.
10.1.2 RESOLUTIONS. Certified copies of resolutions of the Board
of Directors of the Company authorizing the Company to obtain Loans
hereunder.
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10.1.3 INCUMBENCY AND SIGNATURES. A certificate of the Secretary
or an Assistant Secretary of the Company certifying the names of the
officer or officers of the Company who have signed or will sign this
Agreement, the Notes, and other documents provided for in this Agreement to
be executed by the Company, together with a sample of the true signature of
each such officer, and a certificate of authorization setting forth each
Person who is authorized to effect Loans and other transactions hereunder,
together with a sample of the true signature of each such Authorized
Person. Each Bank may conclusively rely on such certificates until it shall
have received notice to the contrary.
10.1.4 OPINION OF COUNSEL. The opinion of counsel to the Company,
substantially in the form of Exhibit C.
10.2 LOANS TO DESIGNATED SUBSIDIARIES. The obligation of each Bank to make
any Loans to any Designated Subsidiary is subject to the condition precedent
that such Bank shall have received the following:
10.2.1 RESOLUTIONS. A certified copy of the resolutions of the
appropriate governing body of the Designated Subsidiary that requested the
Loan authorizing it to obtain Loans hereunder or such other evidence of
corporate authority as is customary in the country of domicile of the
Designated Subsidiary.
10.2.2 ACCEPTANCE OF THIS AGREEMENT. A letter signed by an
authorized officer of such Designated Subsidiary evidencing its agreement
to be bound by the terms of this Agreement with respect to each Loan made
to it hereunder.
10.2.3 INCUMBENCY AND SIGNATURES. A certificate of the Secretary
or an Assistant Secretary of the Designated Subsidiary certifying the name
and signature of the officer or officers of the Designated Subsidiary who
have signed or will sign the letter referenced in Section 10.2.2, together
with a sample of the true signature of each such officer, and a certificate
of authorization setting forth each Person who is authorized to effect
Loans and other transactions hereunder, together with a sample of the true
signature of each such Authorized Person. Each Bank may conclusively rely
on such certificates until it shall have received notice to the contrary.
10.3 ALL LOANS. The obligation of each Bank to make any Loan hereunder is
subject to the further conditions precedent that: (a) No Event of Default or
Unmatured Event of Default has occurred and is continuing or will result from
the making of such Loan, and (b) the warranties of the Company contained in
Sections 8.1, 8.2, and 8.3, are true and correct as of the date of such
requested Loan, with the same effect as though made on the date of such Loan.
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10.4 CONVERSIONS. Except for Section 10.3(a), the conditions set forth in
Sections 10.1, 10.2, and 10.3 shall not apply to the Conversion of Loans from
one type to another type or Continuation of Loans.
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT.
11.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
11.1.1 NONPAYMENT OF NOTES OR FEES. Default in the payment when
due of any principal of any Note or default in the payment when due of
interest on any Note or fees payable by the Company hereunder and
continuance of such failure to pay interest or fees for five Business Days
after written notice thereof to the Company from the Bank to which such
amounts are owed.
11.1.2 NONPAYMENT OF OTHER INDEBTEDNESS FOR BORROWED MONEY.
Default in the payment when due at maturity (subject to any applicable
grace period) or by acceleration of any other indebtedness for borrowed
money having a principal amount in excess of 50,000,000 U.S. Dollars of, or
guaranteed by, the Company, or default in the performance or observance of
any obligation or condition with respect to any such other indebtedness if
such default results in the acceleration of the maturity of any such
indebtedness; provided, that, if such default shall subsequently be
remedied, cured, or waived prior to either the termination of Commitments
or the declaration that all Loans are immediately due and payable, in each
case pursuant to Section 11.2 hereof, and as a result the payment of such
indebtedness is no longer due, the Event of Default existing hereunder by
reason thereof shall likewise be deemed thereupon to be remedied, cured, or
waived and no longer in existence, all without any further action by the
parties hereto.
11.1.3 BANKRUPTCY OR INSOLVENCY. The Company generally fails to
pay, or admits in writing its inability to pay, debts as they become due;
or the Company applies for, consents to, or acquiesces in the appointment
of, a trustee, receiver, or other custodian for the Company or for a
substantial part of the property thereof, or makes a general assignment for
the benefit of creditors; or, in the absence of such application, consent
or acquiescence, a trustee, receiver, or other custodian is appointed for
the Company or for a substantial part of the property of the Company; or
any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced in respect of the Company and if such
case or proceeding is not commenced by the Company, it is consented to or
acquiesced in by the Company or remains for 90 consecutive days undismissed
or unstayed; or the Company takes any corporate action to authorize any of
the foregoing.
11.1.4 NONCOMPLIANCE WITH OTHER PROVISIONS. Failure by the Company
to comply with or to perform in any material respect any other
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provision of this Agreement (and not constituting an Event of Default under
any of the preceding provisions of this Section 11.1) and continuance of
such failure for 30 days after written notice thereof to the Company from
the Majority Banks.
11.1.5 WARRANTIES. Any warranty made by the Company in Sections 8
or 14.16 of this Agreement is breached or is incorrect when made in any
material respect and the Company shall fail to take corrective actions
reasonably satisfactory to the Majority Banks within 30 days after written
notice thereof to the Company from the Majority Banks, except only in the
case of a breach of the warranties contained in Section 8 or 14.16 made on
the date of this Agreement, in which case there shall be no opportunity to
take corrective actions.
11.1.6 JUDGMENTS. Any final and unappealable judgment or order
from a judicial or administrative body (which order or judgment is fully
enforceable against the Company or any of its Consolidated Subsidiaries in
courts of the United States of America or any state thereof) for the
payment of money in excess of 50,000,000 U.S. Dollars (after adjustments to
reflect reductions for credits and set-offs asserted in good faith by the
Company) shall be rendered against the Company, shall not have been
discharged or vacated and shall have been in effect, in its final and
unappealable form, for a period of 30 consecutive days.
11.2 EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
Section 11.1.3 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and all Loans and Notes shall
automatically become immediately due and payable, all without notice of any
kind; and, in the case of any other Event of Default, the Majority Banks may
declare the Commitments (if they have not theretofore terminated) to be
terminated and the Outstanding Majority Banks may declare that all Loans and
Notes shall become immediately due and payable. The Majority Banks and the
Outstanding Majority Banks shall promptly advise the Company in writing of any
such declaration. Following the declaration that all Loans and Notes are
immediately due and payable, all payments made by the Company on account of the
Loans and Notes shall be made to the Administrator, which shall distribute such
payments on a pro rata basis (in relation to the amounts of outstanding Loans)
to Banks with outstanding Loans. Following such declaration, if any Bank
receives a payment that is not on a pro rata basis, such Bank will remit to the
Administrator any amount in excess of its pro rata portion. Upon receipt of any
such remittance, the Administrator will distribute such amount to the Banks with
outstanding Loans in order that all distributions will be pro rata. The effect
as an Event of Default of any event described in Section 11.1.1 or Section
11.1.3 may be waived only by the written concurrence of the holders of 100% of
the aggregate unpaid principal amount of the Notes and the Majority Banks, and
the effect as an Event of Default of any other event described in this Section
11 may be waived by the written concurrence of the Majority Banks and the
Outstanding Majority Banks.
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SECTION 12 GUARANTY.
The Company hereby unconditionally, absolutely and irrevocably guarantees,
as primary obligor and not merely as surety, the repayment to each Relevant
Bank, when due pursuant to the terms and conditions of this Agreement, of the
amount of any Loan made pursuant to this Agreement to a Designated Subsidiary,
together with accrued interest on such Loan; provided, however, that before any
amount shall be deemed due and payable pursuant to this Section 12, the Relevant
Bank must first give notice to the Company of the nonpayment by the Designated
Subsidiary, and the Company shall have five Business Days from the receipt of
such notice to cure or cause to be cured any and all such nonpayments. The
Company's obligations hereunder constitute a guaranty of payment and not of
collection merely. The Company hereby waives notice of, and consents to, any
extensions of time of payment, renewals, compromises, settlements, releases or
other indulgences from time to time granted by the Relevant Bank in respect of
Loans made to Designated Subsidiaries. Except as otherwise provided in this
Section 12, the Company hereby waives presentment, protest, demand of payment,
notice of dishonor and all notices and demands whatsoever. The obligations of
the Company hereunder shall not be released, discharged or otherwise affected by
(i) any change in the corporate existence or constitution, structure or
ownership of any Designated Subsidiary or the Company, (ii) any insolvency,
bankruptcy, reorganization or similar proceeding affecting the Designated
Subsidiary or its assets or the Company or (iii) the existence of any claim,
set-off or other rights which the Company may have at any time against the
Relevant Bank or any other person. If at any time any payment of any obligation
guaranteed hereunder is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy or reorganization of a Designated Subsidiary or
otherwise, the Company's obligations under this Section 12 with respect to such
payment shall be reinstated at such time as though such payment had not been
made. The Company shall not exercise any of its subrogation rights with respect
to amounts paid to a Relevant Bank pursuant to this Section 12 until all amounts
guaranteed hereunder payable to such Relevant Bank have been paid in full.
Following such payment in full with regard to a Relevant Bank, the Company shall
be entitled to subrogation in the Relevant Bank's rights and, upon the
reasonable request of the Company, the Relevant Bank agrees to cooperate with
the Company in enforcement of the Company's subrogation rights, including the
transfer and delivery by the Relevant Bank to the Company of any and all
evidence of indebtedness relating to such Loan within the possession or control
of the Relevant Bank.
SECTION 13 CERTAIN DEFINITIONS.
When used herein the following terms shall have the following meaning:
"AFFILIATE" means, with respect to a particular Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person shall
mean the power to
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direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGREEMENT" means this Agreement, as it may be amended, modified, or
supplemented and in effect from time to time.
"APPLICABLE COMMITMENT FEE" means the percentage in effect from time to
time as set forth in the following table opposite the highest of the
then-current rating assigned to the Company's senior unsecured long-term debt by
Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's Ratings Group
("S&P"):
Rating Applicable
(Moody's/S&P) Commitment Fee
------------- --------------
higher than A1/A+ 0.060%
A1/A+ 0.070%
A2/A 0.080%
A3/A- 0.090%
Baa1/BBB+ 0.100%
Baa2/BBB 0.125%
Baa3/BBB- 0.150%
lower than Baa3/BBB- 0.175%
"APPLICABLE MARGIN" means, at any time, the percentage set forth in the
following table opposite the highest of the then-current rating assigned to the
Company's senior unsecured long-term debt by Moody's or S&P:
Applicable Applicable
Margin for Margin for
Rating Domestic CD Eurocurrency
(Moody's/S&P) Loans Loans
- -------------------------------------------------------------------------------
higher than A1/A+ 0.275% 0.175%
A1/A+ 0.300% 0.200%
A2/A 0.325% 0.225%
A3/A- 0.350% 0.250%
Baa1/BBB+ 0.400% 0.300%
Baa2/BBB 0.475% 0.375%
Baa3/BBB- 0.550% 0.450%
lower than Baa3/BBB- 0.600% 0.500%
"ASSESSMENT RATE" means, for any Domestic CD Loan (and for the purpose of
computing the Domestic CD Rate (Adjusted)), the annual assessment rate (rounded
upwards, if necessary, to the nearest 1/100 of 1%) applicable to the Relevant
Bank on its insured deposits under the Federal Deposit Insurance Act, determined
by annualizing the most recent assessment levied on the Relevant
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Bank by the Federal Deposit Insurance Corporation (the "FDIC") with respect to
such deposits, after giving effect to the most recent rebate granted to the
Relevant Bank by the FDIC with respect to deposit insurance as well as the loss
to the Relevant Bank (determined in the good faith judgment of the Relevant
Bank) of the use of such rebate prior to the date credit is taken by the
Relevant Bank with respect to such rebate.
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
Person is liable at the time and at any date as of which the amount thereof is
to be determined, the lesser of (a) the fair value of the property subject to
such lease (as determined by the Directors of the Company) or (b) the total net
amount of rent required to be paid by such Person under such lease during the
remaining term thereof, discounted from the respective due dates thereof to such
date at the actual interest factor included in such rent. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
"AUTHORIZED PERSON" means, as to the Company, any person designated as such
in a certificate signed by the Chief Financial Officer, Treasurer, or Assistant
Treasurer of the Company, and, as to any Designated Subsidiary, means any person
designated as such in a certificate signed by one or more officers of the
Designated Subsidiary, as authorized by resolution of the Designated Subsidiary
or otherwise by law.
"BANKS" or "BANK" - see Preamble.
"BASE RATE" means the higher of (i) the rate of interest per annum publicly
announced and in effect from time to time by the Relevant Bank at its Domestic
Office identified on the signature pages hereto as its prime, base or reference
rate for U.S. Dollar Loans or (ii) the Federal Funds Rate plus the Applicable
Margin for Eurocurrency Loans. The Base Rate shall change simultaneously with
each change in such announced prime, base or reference rate and Federal Funds
Rate, as applicable. The Base Rate may not be the lowest rate charged by the
Relevant Bank for commercial or other extensions of credit.
"BASE RATE LOAN" means any Loan of U.S. Dollars that bears interest at or
by reference to the Relevant Bank' s Base Rate.
"BUSINESS DAY" means (i) in the case of a Business Day that relates to a
Eurocurrency Loan, any day of the year on which banks are open for business in
both New York and, with regard to any such Bank only, the city in which the
applicable Eurocurrency Office of such Bank is located and on which dealings are
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carried on in the interbank eurocurrency market; (ii) in the case of a Business
Day that relates to a Base Rate Loan, a Domestic CD Loan, or a Negotiated Loan,
any day of the year on which banks are open for business in both New York and,
with regard to any such Bank only, the city in which the applicable Domestic
Office of such Bank is located; and (iii) in the case of a Business Day that
relates to a Local Currency Loan, any day of the year on which the local office
of the Relevant Bank in that locality is open for business.
"COMMITMENT(S)" means the commitments of the Banks to make Loans hereunder;
and Commitment as to any Bank shall mean the commitment of such Bank to make
Loans hereunder in an aggregate amount not to exceed the U.S. Dollar amount set
forth opposite its signature hereto or any subsequent amendment hereto.
"COMPANY" - see Preamble.
"COMPLIANCE CERTIFICATE" - see Section 9.1.3 and Exhibit B.
"CONSOLIDATED FUNDED DEBT" means the Funded Debt of the Company and its
Consolidated Subsidiaries consolidated in accordance with GAAP.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total of all assets of the
Company and its Consolidated Subsidiaries appearing on a consolidated balance
sheet prepared in accordance with GAAP, including the equity in and the net
amount of advances to other Subsidiaries, after deducting therefrom (without
duplication of deductions) as shown on such balance sheet, the sum of:
(i) intangible assets, including goodwill, cost of acquired businesses in
excess of recorded net assets at acquisition dates, patents,
licenses, trademarks, trade names, copyrights, unamortized debt
discount and expense less unamortized debt premium, and corporate
organization expense (but excluding deferred charges and prepaid
expense);
(ii) any write-up of the book value of any assets (other than equity in
Subsidiaries which are not Consolidated Subsidiaries and other than
as a result of currency revaluations) resulting from the revaluation
thereof subsequent to March 31, 1992;
(iii) all liabilities of the Company and its Consolidated Subsidiaries
other than: Funded Debt; capital stock; surplus; surplus reserves;
reserves for deferred Federal income taxes arising from accelerated
depreciation, investment and other tax credits, and similar
provisions; and contingency reserves not allocated for any particular
purpose;
(iv) reserves for depreciation and amortization and other reserves (other
than the reserves referred to in the preceding clause(iii) ); and
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(v) any minority interest in the shares of stock and surplus of any
Consolidated Subsidiary.
"CONSOLIDATED NET WORTH" means at any date the sum of the consolidated
shareholders' investment and minority interests of the Company and its
Consolidated Subsidiaries determined as of such date. Consolidated shareholders'
investment and minority interests of the Company shall be as included in the
annual and quarterly financial statements of the Company, as applicable.
"CONSOLIDATED SUBSIDIARY" means each Subsidiary other than (a) any
Subsidiary the accounts of which (i) are not required by GAAP to be consolidated
with those of the Company for financial reporting purposes and (ii) were not
consolidated with those of the Company in the Company's then most recent Annual
Report to Shareholders and are not intended by the Company to be consolidated
with those of the Company in its next Annual Report to Shareholders, or (b) any
Subsidiary the primary business of which consists of financing the sale or lease
of merchandise, equipment or services by the Company or any Subsidiary or
owning, leasing, dealing in or developing real property, or providing services
directly related thereto, or which is otherwise primarily engaged in the
business of a finance or real estate company.
"CONTINUE," "CONTINUATION" AND "CONTINUED" shall refer to a continuation of
Loans pursuant to Section 1.5.
"CONVERT," "CONVERSION" AND "CONVERTED" shall refer to a conversion of
Loans pursuant to Sections 1.5, 3.3, 7.3, or 7.4.
"DEBT" - see SECTION 9.3.
"DESIGNATED SUBSIDIARY" means any Subsidiary of the Company which (i) the
Company from time to time designates in writing signed by the Chief Financial
Officer, Treasurer, or Assistant Treasurer of the Company as a Designated
Subsidiary entitled to receive Eurocurrency and Local Currency Loans hereunder
and (ii) the Relevant Bank has not objected in writing to such designation of a
Designated Subsidiary within thirty (30) days of the Relevant Bank's receipt of
the Company's designation. Such designation shall contain the address of the
Subsidiary which shall be used to give notice to the Subsidiary pursuant to
Section 14.3.
"DOMESTIC CD LOAN" shall mean any Loan of U. S. Dollars that bears
interest at a rate determined by reference to the Relevant Bank's Domestic CD
Rate (Adjusted).
"DOMESTIC CD RATE" means, with respect to any Interest Period for any
Domestic CD Loan, the rate of interest determined by the Relevant Bank to be the
average (rounded upward, if necessary, to the nearest 1/100 of 1%) of the rates
quoted to the Relevant Bank on the first day of such Interest Period by two
certificate of
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deposit dealers in New York of recognized standing selected by the Relevant Bank
for the purchase from the Relevant Bank or major commercial banks at face value
of certificates of deposit issued by the Relevant Bank in an amount equal or
comparable to the amount of the Domestic CD Loan and having a maturity equal to
such Interest Period; provided, that, if such quotations from such dealers are
not available to the Relevant Bank, it shall determine a reasonably equivalent
rate on the basis of another source or sources selected by it.
"DOMESTIC CD RATE (ADJUSTED)" means, with respect to any Interest Period
for any Domestic CD Loan, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined pursuant to the following formula:
Domestic CD
Domestic CD = Rate + Assessment
Rate (Adjusted) --------------- Rate
(1 - Reserve
Requirement)
"DOMESTIC OFFICE" means, with respect to any Bank, the office of such Bank
or Affiliate of such Bank, designated as such under such Bank's signature
hereto, or such other office of such Bank or Affiliate of such Bank, as such
Bank may hereafter from time to time designate as its Domestic Office.
"DOMESTIC SUBSIDIARY" means each Consolidated Subsidiary other than: (a)
any Consolidated Subsidiary which the Directors of the Company reasonably
determine not to be material to the business or financial condition of the
Company; (b) any Consolidated Subsidiary the major portion of the assets of
which are located, or the major portion of the business of which is carried on,
outside the United States of America, its territories and possessions; (c) any
Consolidated Subsidiary which, during the 12 most recent calendar months (or
such shorter period as shall have elapsed since its organization) derived the
major portion of its gross revenues from sources outside the United States of
America; (d) any Consolidated Subsidiary the major portion of the assets of
which consists of securities or obligations, or both, of one or more
corporations (whether or not Consolidated Subsidiaries) of the types described
in the preceding clauses (b) and (c); and (e) any Consolidated Subsidiary
organized after March 31, 1992 which the Company intends shall be operated in
such manner as to come within one or more of the preceding clauses (b), (c) and
(d).
"ELECTRONIC PAYMENT INSTRUCTIONS" means the Bank Routing and account number
information identifying the account of each Bank to receive the ACH payment of
Commitment Fees. Such Electronic Payment Instructions for each Bank are set
forth below the signature block of such Bank to the Amendment dated as of May 8,
1996 to the Agreement and may be changed at any time by written notice by such
Bank to the Company.
"EUROCURRENCY" means any freely transferable and convertible currency on
deposit outside the country of issuance.
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"EUROCURRENCY LOAN" means any Loan of a Eurocurrency that bears interest at
a rate determined by reference to the Relevant Bank's Eurocurrency Rate (Reserve
Adjusted).
"EUROCURRENCY OFFICE" means, with respect to any Bank, the office of such
Bank or Affiliate of such Bank, designated as such under such Bank's signature
hereto, or such other office of such Bank or Affiliate of such Bank, as such
Bank may hereafter from time to time designate as its Eurocurrency Office. A
Eurocurrency Office may be, at the option of such Bank, either a domestic or
foreign office of such Bank or a domestic or foreign office of an affiliate of
such Bank.
"EUROCURRENCY OR LOCAL CURRENCY EQUIVALENT AMOUNT" means, in the case of a
Eurocurrency or Local Currency, on any Business Day, the amount of such currency
which would be freely converted into a specified amount of U.S. Dollars,
computed at the spot buying rate for dollars of the Relevant Bank at the close
of business on such day.
"EUROCURRENCY RATE" means, with respect to any Eurocurrency Loan for any
Interest Period, the rate per annum equal to the rate per annum at which
deposits of the currency of the Loan in immediately available funds are offered
by the Eurocurrency Office of the Relevant Bank two Business Days prior to the
beginning of such Interest Period to major banks in the interbank eurocurrency
market of such Eurocurrency Office for delivery on the first day of such
Interest Period and for the number of days comprised therein and in an amount
equal or comparable to the amount of the Eurocurrency Loan of the Relevant Bank
for such Interest Period.
"EUROCURRENCY RATE (RESERVE ADJUSTED)" means, with respect to any
Eurocurrency Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Eurocurrency Rate = Eurocurrency Rate
(Reserve Adjusted) -----------------
l-Eurocurrency Reserve
Percentage
"EUROCURRENCY RESERVE PERCENTAGE" means, with respect to each Interest
Period, that percentage (expressed as a decimal) prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining
reserve requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of the Board of Governors
that prescribes reserve requirements applicable to "Eurocurrency Liabilities" as
presently defined in Regulation D.
"EVENT OF DEFAULT" means any of the events described in Section 11.1.
"EXEMPTED INDEBTEDNESS" means, as of any particular time, the sum of (i)
the aggregate principal amount of all then outstanding indebtedness for borrowed
money of the Company and Domestic Subsidiaries incurred after July 1, 1992 and
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secured by any mortgage, security interest, pledge or lien other than those
permitted by paragraph (a) of Section 9.3 and (ii) all Attributable Debt
pursuant to Sale and Leaseback Transactions (as defined in Section 9.4) incurred
by the Company and Domestic Subsidiaries after July 1, 1992 at such time
outstanding other than that which is not prohibited by or is permitted pursuant
to paragraph (a) of Section 9.4.
"FEDERAL FUNDS RATE" means, for any Interest Period selected by the
Company, the average of rates for Federal funds for the Interest Period quoted
to the Relevant Bank by two leading brokers of Federal funds transactions in New
York City.
"FIXED RATE LOAN(S)" - see Section 1.3.
"FUNDED DEBT" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date such indebtedness was incurred or having a
maturity of 12 months or less but by its terms being renewable or extendable
beyond 12 months from the date such indebtedness was incurred at the option of
the borrower.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"INTEREST PERIOD" means, with respect to any Fixed Rate Loan, the period
commencing on the date such Loan was made, or on the date such Loan was
Converted from a Loan of a different type, or on the date of expiration of the
immediately preceding Interest Period for such Loan, and (i) ending 30, 60, 90,
120, 150, 180 days, or, if available, more than 180 days up to and including 360
days, thereafter in the case of a Domestic CD Loan, or (ii) ending one, two,
three, or six months, or, if available, more than six months up to and including
twelve months, thereafter in the case of a Eurocurrency Loan, all as the Company
or any Designated Subsidiary may specify pursuant to Section 1.4, 1.5, or 3.3;
the Interest Period for any Negotiated Loan or any Local Currency Loan shall be
as agreed by the Company or any Designated Subsidiary and the Relevant Bank
pursuant to Section 1.6 or 1.7. Each Interest Period for a Fixed Rate Loan that
would otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (unless such next succeeding Business Day is the first
Business Day of a calendar month, in which case with respect to a Eurocurrency
Loan such Interest Period shall end on the next preceding Business Day).
"JUDGMENT CURRENCY" - see Section 7.6.
"JUDGMENT CURRENCY CONVERSION DATE" - see Section 7.6.
"LIEN" or "MORTGAGE" - see Section 9.3.
"LOCAL CURRENCY" means, with respect to any Local Currency Loan, any legal
currency of the nation where the Local Currency Loan is being funded.
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"LOCAL CURRENCY LOAN(S)" - see Section 1.7.
"LOANS" or "LOAN" - see Section 1.1.
"MAJORITY BANKS" means Banks having an aggregate Percentage of 66-2/3% or
more.
"NEGOTIATED LOAN(S)" - see Section 1.6.
"NOTE(S)" - see Section 2.2 and Exhibit A.
"OBLIGATION CURRENCY" - see Section 7.6.
"OUTSTANDING MAJORITY BANKS" means Banks having 66-2/3% or more of the
aggregate principal amount of Loans outstanding.
"PERCENTAGE" means as to any Bank the percentage of such Bank's share of
the total Commitments of all Banks.
"PERSON" shall mean an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or any agency or political subdivision thereof), or other entity of
any kind.
"PRINCIPAL PROPERTY" means any single manufacturing plant, engineering
facility or research facility owned or leased by the Company or a Domestic
Subsidiary other than any such plant or facility or portion thereof which the
Board of Directors reasonably determines not to be of material importance to the
Company and its Subsidiaries taken as a whole.
"PROPRIETARY INFORMATION" - see Section 14.5.
"RELEVANT BANK" means, with respect to any Loan, the Bank that made the
Loan, and, prior to the making of such Loan or requested Loan, any Bank that has
been requested to make such Loan.
"RESERVE REQUIREMENT" means, with respect to each Interest Period, a
percentage (expressed as a decimal) equal to the daily average during such
Interest Period of the aggregate reserve requirement (including all basic,
supplemental, marginal, and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements
during such Interest Period) specified under Regulation D of the Board of
Governors of the Federal Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable to nonpersonal time
deposits as presently defined in Regulation D, as then in effect, as applicable
to the class of banks of which the Relevant Bank is a member, on deposits of the
type used as a reference in determining the Domestic CD Rate and having a
maturity approximately equal to such Interest Period.
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"SALE AND LEASEBACK TRANSACTION" - see Section 9.4.
"SUBSIDIARY" means a corporation of which the Company and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of directors.
"TERMINATION DATE" means the earlier to occur of (a) July 1, 2001, subject
to extension for one or more successive one-year periods as to any Bank or Banks
pursuant to Section 1.2, or (b) such other date on which the Commitments shall
terminate pursuant to Section 11.2.
"TYPE OF LOAN OR BORROWING" - see Section 1.3. The various types of Loans
or borrowings available under this Agreement are as follows: Base Rate Loans or
borrowings and Fixed Rate Loans or borrowings. Fixed Rate Loans or borrowings
consist of Domestic CD Loans or borrowings, Eurocurrency Loans or borrowings,
Negotiated Loans or borrowings, and Local Currency Loans or borrowings.
"U.S. DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"UNMATURED EVENT OF DEFAULT" means any event that if it continues uncured
will, with lapse of time or notice or lapse of time and notice, constitute an
Event of Default.
"UNUSED AMOUNT" means the amount of the Commitment of the Relevant Bank
less any outstanding Loans made by such Bank. Loans in an Obligation Currency
other than U.S. Dollars will be translated into U.S. Dollars for purposes of
this calculation at the spot rate for dollars published in THE WALL STREET
JOURNAL on each day in which such Loan is outstanding (provided, that if such
day is not a Business Day, the applicable spot rate for such day should be the
spot rate on the Business Day immediately prior to such day).
"WHOLLY OWNED DOMESTIC SUBSIDIARY" means each Domestic Subsidiary all the
outstanding shares of which, other than directors' qualifying shares, shall at
the time be owned by the Company, or by the Company and one or more Wholly Owned
Domestic Subsidiaries, or by one or more Wholly Owned Domestic Subsidiaries.
SECTION 14 GENERAL.
14.1 WAIVER; AMENDMENTS. No delay on the part of any Bank or the holder of
any Note in the exercise of any right, power, or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any of them of any
right, power, or remedy preclude other or further exercise thereof, or the
exercise of any other right, power, or remedy. No amendment, modification, or
waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be
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effective unless the same shall be in writing and signed and delivered by Banks
having an aggregate Percentage of not less than the aggregate Percentage
expressly designated herein with respect thereto (or in the case of the
Outstanding Majority Banks, the aggregate principal amount outstanding) or, in
the absence of such designation as to any provision of this Agreement or the
Notes, by the Majority Banks, and then any such amendment, modification, waiver,
or consent shall be effective only in the specific instance and for the specific
purpose for which given. No amendment, modification, waiver, or consent (i)
shall extend or increase the amount of the Commitments, the maturity of the
Notes or reduce the fees hereunder or the rate of interest payable with respect
to the Notes or reduce the aggregate Percentage required to effect an amendment,
modification, waiver, or consent or eliminate the guaranty set forth in Section
12 hereof without the written consent of all of the Banks or (ii) shall extend
the maturity or reduce the principal amount of, or rate of interest on, any Note
without the written consent of the holder of such Note. Notwithstanding the
foregoing, the Company may add one or more financial institutions as Bank
parties to this Agreement, from time to time and without the consent of the
then-current Bank parties to this Agreement; provided, that in no event will the
aggregate amount of the Commitments of the new financial institutions exceed 125
million U.S. Dollars in excess of the Commitments as of the date hereof. Each
such addition of a Bank shall be effective upon such Bank's written agreement to
become a Bank party hereto and to be bound by the terms of this Agreement
applicable to "Banks." The Company shall give the then-current Bank parties to
this Agreement prompt notice of any change to the Bank's respective Percentages
and Commitments resulting from the addition of any Bank as a party to, or the
reduction of any Bank's Commitment under, this Agreement.
14.2 CONFIRMATIONS. The Company and each holder of a Loan agree from time
to time, upon written request received by it from the other, to confirm to the
other in writing the aggregate unpaid principal amount of Loans then outstanding
to such holder.
14.3 NOTICES. Except as otherwise provided in Sections 1.3, 1.4, 1.5, 3.3,
and 6.2, all notices hereunder shall be in writing. Notices given by mail shall
be deemed to have been given three days after the date sent if sent by
registered or certified mail, postage prepaid, and:
(i) if to the Company, addressed to the Company at its address shown
below its signature hereto;
(ii) if to any Designated Subsidiary, addressed to it at the address given
by the Company pursuant to its designation of such Subsidiary as a
Designated Subsidiary entitled to receive Loans hereunder; or
(iii) if to any Bank, addressed to such Bank at the address shown below its
signature as its Domestic Office address; or
in the case of each party, such other address as such party may, by written
notice to the other parties to this Agreement, have designated as its address
for notices.
-31-
60
Notices given by facsimile, telegram, or telex shall be deemed to have been
given when sent, if properly addressed to the party to whom sent, at its
address, as aforesaid.
Each Bank shall be entitled to rely upon all telephonic notices given by an
Authorized Person pursuant to Sections 1.3, 1.4, 1.5, 3.3, or 6.2, and the
Company shall hold each Bank harmless from any loss, cost, or expense ensuing
from any such reliance, except for such loss, cost or expenses as a result of
the Bank's gross negligence or willful misconduct. All notices, waivers, or
consents given to, or any requests made upon, the Company by any Bank or holder
of any Note shall be promptly notified to all other parties to this Agreement.
Whenever a notice, declaration, or other action is required to be taken, given,
or made by the Majority Banks or the Outstanding Majority Banks, such notice,
declaration, or action shall be in writing and shall be signed by, as the case
may be, Banks having an aggregate Percentage of 66-2/3% or more or Banks having
66-2/3% or more of the aggregate principal amount of Loans outstanding.
14.4 COMPUTATIONS. Where the character or amount of any asset or liability
or item of income or expense is required to be determined, or any consolidation
or other accounting computation is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in accordance with the
Company's then current method of accounting, which method must be in accordance
with GAAP; provided, however, if any changes in accounting principles from those
used in the preparation of the financial statements referred to in Section 8.4
hereafter occasioned by the promulgation of rules, regulations, pronouncements,
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) result in a change in the method of calculation
of the financial covenants, standards, or terms found in Section 9.2 hereof, the
parties hereto agree to enter into negotiations to amend such provisions so as
equitably to reflect such changes with the desired result that the criteria for
evaluating the Company's financial condition shall be the same after such
changes as if such changes had not been made.
14.5 CONFIDENTIALITY. Unless the Company otherwise agrees in writing, each
Bank hereby agrees to keep all Proprietary Information (as defined below)
confidential and not to disclose or reveal any Proprietary Information to any
Person other than the Bank's directors, officers, employees, Affiliates, and
agents, and then only on a confidential basis; provided, however, that a Bank
may disclose Proprietary Information (a) as required by law, rule, regulation,
or judicial process, (b) to its attorneys and accountants, (c) as requested or
required by any state, federal, or foreign authority or examiner regulating
banks or banking, or (d) to actual or potential assignees or participants as
permitted by Section 14.6.3. For purposes of this Agreement, the term
"Proprietary Information" shall include all information about the Company, any
Subsidiary, or any of their respective Affiliates which has been furnished by
the Company, any Subsidiary, or any of their respective Affiliates, whether
furnished before or after the date hereof, and
-32-
61
regardless of the manner furnished; provided, however, that Proprietary
Information shall not include information which (x) is or becomes generally
available to the public other than as a result of a disclosure by a Bank not
permitted by this Agreement, (y) was available to a Bank on a nonconfidential
basis prior to its disclosure to such Bank by the Company, any Subsidiary, or
any of their respective Affiliates, or (z) becomes available to a Bank on a
nonconfidential basis from a Person other than the Company, any Subsidiary, or
any of their respective Affiliates who, to the best knowledge of such Bank, is
not otherwise bound by a confidentiality agreement with the Company, any
Subsidiary, or any of their respective Affiliates, or, to the best knowledge of
such Bank, is not otherwise prohibited from transmitting the information to such
Bank.
14.6 Assignments and Participations.
------------------------------
14.6.1 ASSIGNMENTS. Unless the Company otherwise consents in
writing, which consent shall not be unreasonably withheld, no holder of any
Note (including any Bank) shall assign or transfer such Note or any
interest therein to any other Person, except as otherwise permitted under
Section 14.6. Except as otherwise expressly agreed in writing by the
Company, no Bank shall, by reason of the assignment or transfer of any Note
or otherwise, be relieved of any of its obligations hereunder. Each
transferee of any Note shall take such Note subject to the provisions of
this Agreement and to any request made, waiver or consent given, or other
action taken hereunder, prior to such transfer, by each previous holder of
such Note; and the Company shall be entitled to conclusively assume that
the transferee shall thereafter be vested with all rights and powers under
this Agreement of the Bank named as the payee of the Note which is the
subject of such transfer. Nothing herein shall prohibit any Bank from
pledging or assigning any Note to any Federal Reserve Bank pursuant to
applicable law.
14.6.2 PARTICIPATIONS. Any Bank may grant participations in or to
all or any part of any Loan or Loans then owing to such Bank and the Notes
held by such Bank without the consent of the Company. Except as otherwise
expressly agreed in writing by the Company, no grant of a participation
shall relieve any Bank of its obligations hereunder, the Company shall be
entitled to deal solely with the Banks (and their respective assignees) for
all purposes of this Agreement and the Notes, and no holder of a
participation in all or any part of the Loans or the Notes shall have any
rights under this Agreement, except that the holder of a participation
shall be entitled to the benefits of Section 7 hereunder (but the dollar
amount of such Section 7 benefits shall not exceed those benefits that the
assigning Bank would have otherwise received).
14.6.3 DISCLOSURE OF INFORMATION. The Company hereby consents to
the disclosure of any information obtained in connection herewith by any
Bank to any Person which is an assignee or potential assignee or a
participant or potential participant pursuant to Section 14.6.1 or 14.6.2,
it being understood that such Bank shall advise any such actual or
potential assignee or participant of its obligation to keep confidential
any nonpublic information disclosed to it
-33-
62
pursuant to this Section 14.6.3 and, prior to the disclosure of such
information, shall cause each such actual or potential assignee or
participant to execute a confidentiality agreement containing the
confidentiality provisions set forth in Section 14.5.
14.7 SECURITIES LAWS. Each Bank represents that it is the present intention
of such Bank to acquire each Note drawn to its order for its own account and not
with a view to the distribution or sale thereof, subject, nevertheless, to the
necessity that such Bank remain in control at all times of the disposition of
the property held by it for its own account, it being understood that the
foregoing representation shall not affect the character of the Loans as
commercial lending transactions.
14.8 COSTS AND EXPENSES. The Company agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Banks (including the reasonable fees and
out-of-pocket expenses of counsel for the Banks and reasonable allocated costs
of in-house counsel for the Banks) in connection with the enforcement of this
Agreement, the Notes, and any other instruments or documents executed in
connection herewith.
14.9 GOVERNING LAW. This Agreement and each Note shall be a contract made
under and governed by the internal laws of the State of Ohio. Wherever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Banks and any other
holders of the Notes expressed herein or in the Notes shall be in addition to
and not in limitation of those provided by applicable law.
14.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement. When counterparts executed
by all the parties shall have been lodged with the Company (or, in the case of
any Bank as to which an executed counterpart shall not have been so lodged, the
Company shall have received telegraphic, telex, or other written confirmation
from such Bank of execution of a counterpart hereof by such Bank), this
Agreement shall become effective as of the date hereof.
14.11 CAPTIONS. Section captions used in this Agreement are for convenience
only, and shall not affect the construction of this Agreement.
14.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company, each Bank, and their respective successors and assigns, and shall inure
to the sole benefit of the Company, each Bank, and their respective successors
and assigns.
-34-
63
14.13 ENTIRE AGREEMENT. This Agreement supersedes any prior agreement or
understanding of the parties hereto, and contains the entire agreement of the
parties hereto, with respect to the matters covered hereby.
14.14 APPOINTMENT OF ADMINISTRATOR. TRW hereby appoints National City Bank
to serve as administrator (the "Administrator") to coordinate any votes that may
be taken under this Agreement and to distribute payments, if any, required to be
made to the Banks on a pro rata basis as provided in Section 11.2. In the event
that National City Bank is unable or unwilling to act as Administrator, TRW
shall appoint a successor, subject to the approval of the Majority Banks, which
shall not be unreasonably withheld. Except as otherwise specifically provided
herein, borrowing, repayment and fee procedures set forth in this Agreement
shall not be affected by the appointment of the Administrator.
14.15 NON-U.S. BANK TAX INFORMATION. Upon the request of the Company, any
Bank that is not organized under the laws of the United States of America or any
state thereof will (i) deliver to the Company accurate and complete signed
copies of Forms 1001 and 4224 (or such additional or successor forms) and any
amendments or modifications thereto and (ii) inform the Company if the Company
can no longer rely upon such forms.
14.16 REGULATION U. The Company hereby represents and warrants that neither
the Company nor any of its Consolidated Subsidiaries is principally engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) and covenants that the Company's use of
proceeds of any borrowings under this Agreement will not cause a violation of
Regulation U. Each of the Banks hereby represents and warrants to the Company
that it is not relying and will not rely on any margin stock (as described
above) in determining whether to extend or maintain credit under this Agreement.
-35-
64
SIGNATURE PAGES TO MULTI-YEAR REVOLVING CREDIT AGREEMENT, DATED AS OF
---------------------------------------------------------------------
JULY 1, 1992, AS AMENDED PURSUANT TO AGREEMENTS DATED AS OF JUNE 30,
--------------------------------------------------------------------
1993, MARCH 1, 1994 AND FEBRUARY 28, 1995 AND AS AMENDED AND RESTATED
---------------------------------------------------------------------
AS OF MAY 8, 1996
-----------------
Delivered at Cleveland, Ohio, as of the day and year first above written.
TRW INC.
/s/ William C. Seeger Jr.
By William C. Seeger Jr.
Vice President and Treasurer
1900 Richmond Road
Cleveland, Ohio 44124
Telephone: 216/291-7540
Facsimile: 216/291-7831
-36-
65
BANKS:
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Bank of America National Trust
----- and Savings Association
By Deborah Graziano
Title: Vice President
DOMESTIC OFFICE
Bank of America NT & SA
1850 Gateway Boulevard
Concord, California 94520
Telephone: (510) 675-7485
Facsimile: (510) 675-7531
Attention: Selina Button
EUROCURRENCY OFFICE
Bank of America NT & SA
1850 Gateway Boulevard
Concord, California 94520
Telephone: (510) 675-7485
Facsimile: (510) 675-7531
Attention: Selina Button
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Bank of America
ABA Routing No.: 121000358
Account No.: 12331-83980
Account Name: Incoming Money Transfer
Reference No.: TRW Commitment Fee
-37-
66
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Barclays Bank PLC
-----
By
DOMESTIC OFFICE
Barclays Bank PLC
222 Broadway
New York, New York 10038
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
Barclays Nassau, Bahamas Branch
c/o Barclays Bank PLC
222 Broadway
New York, New York 10038
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Barclays Bank PLC-New York
ABA Routing No.: 026-002-574
Account No.: 050-019-104
Account Name: TRW
Reference No.: TRW Commitment Fee;
N. SANGLE
-38-
67
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % The Chase Manhattan Bank, N.A.
-----
By
DOMESTIC OFFICE
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
Fifth Floor
New York, New York 10081
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan Bank
ABA Routing No.: 021-000021
Account No.: 900-9-000036
Account Name: Commercial Loan Opns.
Reference No.: TRW Commitment Fee
-39-
68
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Citibank, N.A.
-----
By
DOMESTIC OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
200 S. Wacker Dr.
Chicago, IL 60606
Telephone: 312-993-3871
Facsimile: 312-993-6840
EUROCURRENCY OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
200 S. Wacker Dr.
Chicago, IL 60606
Telephone: 312-993-3871
Facsimile: 312-993-6840
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Citibank, N.A., New York
ABA Routing No.: 021000089
Account No.: 38483095
Account Name: Chicago NEO Loan Acct.
Reference No.: TRW Commitment Fee
-40-
69
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % Morgan Guaranty Trust Company
----- of New York
By
DOMESTIC OFFICE
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
Morgan Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
902 Market Street
Wilmington, Delaware 19801
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Morgan Guaranty Trust
ABA Routing No.: 021000238
Account No.: 999-99-090
Account Name: _____________
Reference No.: TRW Com. Fee
Corp. Proc. Module 30
-41-
70
Amount of Percentage of
Commitment Commitments
$60,000,000 8 % National City Bank
-----
By
DOMESTIC OFFICE
National City Bank
National City Center
P. O. Box 5756
Cleveland, Ohio 44101-0756
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
National City Bank
National City Center
P. O. Box 5756
Cleveland, Ohio 44101-0756
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: National City Bank
ABA Routing No.: 041000124
Account No.: 2537557
Account Name: _____________
Reference No.: TRW Commitment Fee
-42-
71
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$60,000,000 8 % The Sumitomo Bank, Limited
-----
By
DOMESTIC OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
233 South Wacker Drive, Suite 4800
Chicago, Illinois 60606-6448
Telephone: (312) 876-6431
Facsimile: (312) 876-6436
EUROCURRENCY OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
233 South Wacker Drive, Suite 4800
Chicago, Illinois 60606-6448
Telephone: (312) 876-6431
Facsimile: (312) 876-6436
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 071000013
Account No.: 15-01208
Account Name: Sumitomo Bank Ltd,
Chicago Branch
Reference No.: TRW Commitment Fee
-43-
72
Amount of Percentage of
Commitment Commitments
- ---------- -------------
$45,000,000 6 % Banque Nationale de Paris
-----
By
DOMESTIC OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
209 South LaSalle, 5th Floor
Chicago, Illinois 60604
Telephone: (312) 977-2200
Facsimile: (312) 977-1380
EUROCURRENCY OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
209 South LaSalle, 5th Floor
Chicago, Illinois 60604
Telephone: (312) 977-2200
Facsimile: (312) 977-1380
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Banque Nationale de
Paris,
New York Branch
ABA Routing No.: 026007689
Account No.: 14119400189
Account Name: BNP, Chicago Branch
Reference No.: TRW Commitment Fee
-44-
73
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % Dresdner Bank AG
-----
By
By
DOMESTIC OFFICE
Dresdner Bank AG New York Branch
75 Wall Street
New York, New York 10005
Telephone: (212) 429-2244
Facsimile: (212) 429-2524
EUROCURRENCY OFFICE
Dresdner Bank AG Grand Cayman Branch
c/o Dresdner Bank AG New York Branch
75 Wall Street
New York, New York 10005
Telephone: (212) 429-2244
Facsimile: (212) 429-2524
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan (NY,NY)
ABA Routing No.: 021-000-021
Account No.: 920-1-059-079
Account Name: Dresdner Bank AG,
New York Branch
Reference No.: TRW Commitment Fee
-45-
74
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$45,000,000 6 % NBD Bank
-----
By Andrew W. Strait
Title: Vice President
DOMESTIC OFFICE
NBD Bank
Attention: Mid-Corporate Banking
611 Woodward
Detroit, Michigan 48226
Telephone: (313) 225-3300
Facsimile: (313) 225-3269
EUROCURRENCY OFFICE
NBD Bank, N.A.
Attention: Mid-Corporate Banking
611 Woodward
Detroit, Michigan 48226
Telephone: (313) 225-3300
Facsimile: (313) 225-3269
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: NBD Bank
ABA Routing No.: 072000326
Account No.: 1424183
Account Name: Commercial Loans
Reference No.: TRW Commitment Fee
-46-
75
Amount of Percentage of
Commitment Commitments
$45,000,000 6 % Royal Bank of Canada
-----
By Patrick Shields
Title: Manager, Corporate Banking
DOMESTIC OFFICE
Royal Bank of Canada
New York Branch
c/o Financial Square, 23rd Floor
New York, New York 10005
Telephone: (212) 428-6323
Facsimile: (212) 428-2372
EUROCURRENCY OFFICE
Royal Bank of Canada
New York Branch
c/o Financial Square, 23rd Floor
New York, New York 10005
Telephone: (212) 428-6323
Facsimile: (212) 428-2372
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan, NY
ABA Routing No.: 021000021
Account No.: 9201033363
Account Name: Royal Bank
Reference No.: TRW Commitment Fee
-47-
76
Amount of Percentage of
Commitment Commitments
$30,000,000 4 % The Sakura Bank, Limited
-----
By
DOMESTIC OFFICE
The Sakura Bank, Limited
Chicago Branch
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Telephone: (312) 580-3276
Facsimile: (312) 332-5345
EUROCURRENCY OFFICE
The Sakura Bank, Limited
Chicago Branch
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Telephone: (312) 580-3276
Facsimile: (312) 332-5345
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 071000013
Account No.: 1512951
Account Name: Sakura Bank, Chicago
Reference No.: TRW Commitment Fee
-48-
77
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Society National Bank
-----
By
DOMESTIC OFFICE
Society National Bank
127 Public Square
Cleveland, Ohio 44114
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
Society National Bank
127 Public Square
Cleveland, Ohio 44114
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Society National Bank
ABA Routing No.: 041001039
Account No.: 00100-39140
Account Name: Commercial Loan Opns
Reference No.: TRW Commitment Fee
-49-
78
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % The Tokai Bank, Limited
-----
By
DOMESTIC OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
181 West Madison Street, Suite 3600
Chicago, Illinois 60602
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
181 West Madison Street, Suite 3600
Chicago, Illinois 60602
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 071000013
Account No.: 15-08997
Account Name: Tokai Bank, Chicago Branch
Reference No.: TRW Commitment Fee
Loan Administration
-50-
79
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Union Bank of Switzerland
-----
By
DOMESTIC OFFICE
Union Bank of Switzerland
Chicago Branch
30 South Wacker Drive, Suite 40
Chicago, Illinois 60606
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
Union Bank of Switzerland
Chicago Branch
30 South Wacker Drive, Suite 40
Chicago, Illinois 60606
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 071000013
Account No.: 15-12188
Account Name: UBS, Chicago Branch
Reference No.: TRW Commitment Fee
-51-
80
Amount of Percentage of
Commitment Commitments
- ---------- -----------
$30,000,000 4 % Wells Fargo Bank, N.A.
-----
By
By
DOMESTIC OFFICE
Wells Fargo Bank, N.A.
Special Loan Processing
18700 NW Walker Road, Bldg. 92
Beaverton, OR 97006
Telephone: (503) 614-6436
Facsimile: (503) 614-5878
EUROCURRENCY OFFICE
Wells Fargo Bank, N.A.
Special Loan Processing
18700 NW Walker Road, Bldg. 92
Beaverton, OR 97006
Telephone: (503) 614-6436
Facsimile: (503) 614-5878
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: First Interstate Bank of California
ABA Routing No.: 122000218
Account No.: 3030-98989
Account Name: Special Loan Processing
Reference No.: TRW
- ------------ ----
$750,000,000 100% Total
-52-
81
EXHIBIT A
to
Multi-Year Revolving
Credit Agreement
REVOLVING NOTE
Up to a maximum of
$---------------
(or the Eurocurrency or Dated: _____________, 1996
Local Currency equivalent Cleveland, Ohio
hereof)
FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order
of ___________________ (the "Bank") for the account of its Domestic or
Eurocurrency Office, as applicable (capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement referred to below), the outstanding principal amount of the
Loans made by the Bank to the undersigned pursuant to the Credit Agreement. The
principal amount of each Loan evidenced hereby shall be payable on the earliest
of (i) the Termination Date, (ii) the end of the Interest Period with respect to
such Loan (unless such Loan is Continued or Converted) or (iii) such other date
as the Company and the Relevant Bank may agree in writing.
The undersigned promises to pay interest on the unpaid principal amount
of each Loan evidenced hereby from the date such Loan is made until the
principal amount of such Loan is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal of, and interest on, any Loan are payable in immediately
available funds in the currency of such Loan to the Bank at its Domestic or
Eurodollar Office that made the Loan. The Loans made by the Bank to the
undersigned, and all payments made on account of principal thereof, shall be
recorded by the Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Note.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Multi-Year Revolving Credit Agreement dated as of July 1, 1992,
as amended and restated as of May 8, 1996, among the undersigned, the Bank, and
the other bank parties named therein, as Banks (as the same may be amended,
modified, or supplemented and in effect from time to time, the "Credit
Agreement"). The Credit Agreement, among other things, (i) provides for the
making of Loans by the Bank to the undersigned from time to time in an aggregate
principal amount not to exceed at any time the dollar amount first mentioned
above and the indebtedness of the undersigned resulting from each such Loan
being evidenced by this Note, and (ii)
82
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for payments on account of the principal
hereof prior to the maturity hereof upon the terms and conditions and in
accordance with the provisions therein specified. Reference is hereby made to
the Credit Agreement for a statement of said terms and provisions.
In addition to, and not in limitation of, the foregoing and the
provisions of the Credit Agreement hereinabove referred to, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to pay
all expenses, including reasonable attorneys' fees and expenses, incurred by the
holder of this Note in seeking to collect any amounts payable hereunder which
are not paid when due, whether by acceleration or otherwise.
DEMAND, PRESENTMENT, PROTEST, AND NOTICE OF NON-PAYMENT ARE HEREBY
WAIVED BY THE UNDERSIGNED.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF OHIO.
TRW INC.
By:
-----------------------------
William C. Seeger Jr.
Vice President and Treasurer
83
Schedule Attached to Revolving Note dated ___________, 1996 of TRW Inc. payable
to the order of ____________________________________
BASE RATE BORROWINGS
Unpaid
Date and Date and Amount Principal
Amount of of Repayment Balance of
Base Rate of Base Rate Base Rate Notation
Borrowing Borrowing Borrowings Made by
- --------- --------- ---------- -------
- --------------------------------------------------------------------------------
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84
Schedule Attached to Revolving Note dated _______________, 1996 of TRW Inc.
payable to the order of _____________________________________________________
FIXED RATE BORROWINGS
Date, Amount, Date and Unpaid
and Type of Interest Amount of Principal Notation
Borrowing Period Repayment Balance Made by
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85
EXHIBlT B
to
Multi-Year Revolving
Credit Agreement
COMPLIANCE CERTIFICATE
To: Each of the Bank Parties to the Credit Agreement referred to below
Reference is made to our Multi-Year Revolving Credit Agreement dated as
of July 1, 1992, as amended and restated as of May 8, 1996 (herein as amended,
modified or supplemented and in effect from time to time called the "CREDIT
AGREEMENT") with you. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement.
The Company hereby certifies and warrants to you that the following is
a true and correct computation as at ______________19__ (the "Computation Date")
of Consolidated Net Worth contained in Section 9.2 of the Credit Agreement:
Minimum Consolidated Net Worth
- ------------------------------
Required Under Section 3.2
--------------------------
$1,600,000,000
LESS: The lesser of (i) the aggregate amount
expended by the Company subsequent
to December 31, 1995 for repurchase of
its Common Stock and (ii) $600,000,000 $
------------------- $
-------------
CONSOLIDATED NET WORTH
OF THE COMPANY
Consolidated shareholders'
investment $
-------------------
PLUS: Minority interests $
------------------- $
--------------
The Company hereby further certifies and warrants to you that no Event
of Default or Unmatured Event of Default has occurred and is continuing.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed and delivered by its duly authorized officer this ____day of
______________, 19__.
TRW INC.
By
----------------------
Its
---------------------
86
EXHIBIT C
to
Multi-Year Revolving
Credit Agreement
___________________, 1992
To: Each of the Banks party to the
Credit Agreements referred to
below
Ladies and Gentlemen:
I am General Counsel of TRW Inc., an Ohio corporation (the "Company"), and have
acted in such capacity in connection with the Three-Year Revolving Credit
Agreement and the 364-Day Revolving Credit Agreement, each dated as of
July 1, 1992 (the "Credit Agreements") among the Company and each of the
financial institutions listed on the signature pages thereof. Capitalized
terms used but not otherwise defined are used herein as defined in the Credit
Agreements.
In connection with the opinions expressed below, I have examined or caused to be
examined by members of the TRW Law Department a copy of the Credit Agreements
and the Notes thereunder; and I have also made or caused to be made such other
examinations and inquiries as I have deemed necessary to enable me to give the
opinions hereinafter expressed. However, as to each of the opinions set forth
below which is limited to my knowledge, you should be aware that I have neither
made nor caused to be made any independent review for purposes of rendering this
opinion, although in the regular course of advising the Company I have reviewed
or caused to be reviewed various documents, records and matters of law.
Based upon the foregoing, I am of the opinion that:
87
___________________, 1992
Page 2
1. The Company is a corporation duly incorporated and in good standing
under the laws of the State of Ohio.
2. The Company has full power to execute, deliver, and perform each of the
Credit Agreements and to borrow moneys thereunder and to execute,
deliver, and perform its obligations under the Notes.
3. The execution and delivery of the Credit Agreements and the Notes, the
borrowings under the Credit Agreements, and the performance by the
Company of its obligations under the Credit Agreements and the Notes,
have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any material provision of
applicable law now in effect or of the Amended Articles of
Incorporation or Regulations of the Company or, to my knowledge, of any
agreement for borrowed money or other material agreement binding upon
the Company.
4. The Credit Agreements and the Notes have been duly executed and
delivered by the Company and are the legal, valid, and binding
obligations of the Company, enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium laws or debtor relief proceedings or any
similar laws or proceedings affecting creditors' rights generally or by
general principles of equity.
I am a member of the bar of the State of Ohio and do not purport to be an expert
on, generally familiar with or qualified to express legal conclusions based on
laws other than the laws of the State of Ohio and the United States of America.
This opinion is being delivered to you solely for your benefit as creditor under
the Credit Agreements and may be relied upon only by you for such purpose.
Very truly yours,
Martin A. Coyle
General Counsel
88
SCHEDULE 1.10
PRIOR FACILITIES
Bank of America National Trust and Savings Association
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Bank of America
National Trust and Savings Association
Barclays Bank PLC
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Barclays Bank
PLC
Banque Nationale de Paris
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Banque
Nationale de Paris
The Chase Manhattan Bank N.A.
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and The Chase
Manhattan Bank N.A.
Citibank, N.A.
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Citibank, N.A.
Dresdner Bank AG
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Dresdner Bank
AG
89
First Interstate Bank of California
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and First
Interstate Bank of California
Morgan Guaranty Trust Company of New York
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Morgan Guaranty
Trust Company of New York
NBD Bank, N.A.
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and NBD Bank, N.A.
National City Bank
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and National City
Bank
Royal Bank of Canada
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Royal Bank of
Canada
Society National Bank
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and Society
National Bank
The Sumitomo Bank, Limited
Credit Agreement dated as of January 1, 1985, as amended as of
September 3, 1985 and July 1, 1991 between TRW Inc. and The Sumitomo
Bank, Limited
-2-
90
The Sakura Bank, Limited
Credit Agreement dated as of July 1, 1988, as amended as of July 1,
1991 between TRW Inc. and The Sakura Bank, Limited
The Tokai Bank, Limited
Credit Agreement dated as of July 1, 1988, as amended as of August 16,
1991 between TRW Inc. and The Tokai Bank, Limited
Credit Lyonnais
Credit Agreement dated as of January 10, 1992 between TRW Inc. and
Credit Lyonnais
Union Bank of Switzerland
Credit Agreement dated as of January 10, 1992 between TRW Inc. and
Union Bank of Switzerland
-3-
91
SCHEDULE 8.5
UNDISCLOSED MATERIAL LEGAL PROCEEDINGS
None