EXHIBIT (4)(V)
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$100,000,000
FACILITY B (FIVE YEAR) CREDIT AGREEMENT
dated as of October 17, 2001
between
THE ▇▇▇▇▇▇▇ WORKS
as Borrower
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and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
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and
CITIBANK, N.A.
as Administrative Agent
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC
as Lead Arranger and Book Runner
--------------------------------
and
FLEET NATIONAL BANK
MELLON BANK, N.A.
BNP PARIBAS
as Co-syndication Agents
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.............................................................1
SECTION 1.01. Certain Defined Terms...........................................................1
SECTION 1.02. Computation of Time Periods; Terms Generally...................................11
SECTION 1.03. Accounting Terms...............................................................11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..........................................................12
SECTION 2.01. The Commitment.................................................................12
SECTION 2.02. Making the Committed Advances..................................................12
SECTION 2.03. Fees...........................................................................15
SECTION 2.04. Continuation and Conversion....................................................15
SECTION 2.05. Interest on Advances...........................................................16
SECTION 2.06. Additional Interest on Eurodollar Rate Advances................................17
SECTION 2.07. Repayment and Prepayment of Advances...........................................17
SECTION 2.08. Increased Costs................................................................18
SECTION 2.09. Payments and Computations......................................................18
SECTION 2.10. Taxes..........................................................................20
SECTION 2.11. Promissory Notes...............................................................21
SECTION 2.12. Use of Proceeds of Advances....................................................21
SECTION 2.13. Uncommitted Advances...........................................................21
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING...................................................24
SECTION 3.01. Condition Precedent to Effectiveness of Sections 2.01 and 2.13.................24
SECTION 3.02. Conditions Precedent to Each Advance...........................................25
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................................................25
SECTION 4.01. Representations and Warranties of the Borrower.................................25
ARTICLE V COVENANTS OF THE BORROWER...................................................................27
SECTION 5.01. Affirmative Covenants..........................................................27
SECTION 5.02. Negative Covenants.............................................................29
ARTICLE VI EVENTS OF DEFAULT..........................................................................31
SECTION 6.01. Events of Default..............................................................31
ARTICLE VII THE ADMINISTRATIVE AGENT..................................................................33
SECTION 7.01. Authorization and Action.......................................................33
SECTION 7.02. Administrative Agent's Reliance, Etc. .........................................33
SECTION 7.03. Citibank and Affiliates........................................................34
SECTION 7.04. Lender Credit Decision.........................................................34
i
SECTION 7.05. Indemnification................................................................34
SECTION 7.06. Successor Administrative Agent.................................................35
ARTICLE VIII MISCELLANEOUS............................................................................35
SECTION 8.01. Amendments, Etc................................................................35
SECTION 8.02. Notices, etc. .................................................................36
SECTION 8.03. No Waiver; Remedies............................................................36
SECTION 8.04. Costs and Expenses; Breakage Indemnification...................................36
SECTION 8.05. Sharing of Payments, Etc.......................................................37
SECTION 8.06. Binding Effect.................................................................37
SECTION 8.07. Assignments and Participations.................................................37
SECTION 8.08. Limitation on Assignments and Participations...................................39
SECTION 8.09. Withholding....................................................................40
SECTION 8.10. Mitigation.....................................................................40
SECTION 8.11. Governing Law; Waiver of Jury Trial............................................41
SECTION 8.12. Execution in Counterparts......................................................41
SECTION 8.13. Submission to Jurisdiction.....................................................41
ii
SCHEDULE I ADDRESSES AND APPLICABLE LENDING OFFICES AND COMMITMENTS
EXHIBIT A-1 FORM OF RATE REQUEST
EXHIBIT A-2 FORM OF NOTICE OF BORROWING
EXHIBIT B FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT C FORM OF QUOTE REQUEST
EXHIBIT D FORM OF QUOTE
EXHIBIT E FORM OF ACCEPTANCE
EXHIBIT F FORM OF OPINION OF COUNSEL TO THE BORROWER
EXHIBIT G FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT H-1 FORM OF PROMISSORY NOTE (COMMITTED ADVANCES)
EXHIBIT H-2 FORM OF PROMISSORY NOTE (UNCOMMITTED ADVANCES)
iii
FACILITY B (FIVE YEAR) CREDIT AGREEMENT
This Facility B (Five Year) Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Agreement") is made
as of this 17th day of October, 2001 between THE ▇▇▇▇▇▇▇ WORKS, a Connecticut
corporation (the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and CITIBANK, N.A. ("Citibank"), as administrative agent (the
"Administrative Agent") for the Lenders (as hereinafter defined).
The Borrower has requested the Lenders to make advances to the
Borrower in an aggregate principal amount at any one time outstanding up to but
not exceeding $100,000,000 to refinance certain outstanding indebtedness of the
Borrower under the Borrower's existing credit arrangements and for the general
corporate purposes of the Borrower, and the Lenders are prepared to make such
advances on and subject to the terms and conditions of this Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquiring Person" means any person (other than the ESOP) who
is or becomes the beneficial owner, directly or indirectly, of 10% or more of
the Borrower's outstanding common stock.
"Advance" means a Committed Advance or an Uncommitted Advance.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank with its
office at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank
Loans Syndication.
"Applicable Eurodollar Margin" means, on any date, for each
Eurodollar Rate Advance, (i) 0.1300% if on such date the Borrower's outstanding
Long-Term Indebtedness is rated A+ or higher by Standard & Poor's and A1 or
higher by Moody's (ii) 0.1700% if on such date clause (i) is inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated A or higher by
Standard & Poor's and A2 or higher by Moody's, (iii) 0.2600% if on such date
clauses (i) and (ii) are inapplicable and the Borrower's outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor's and A3 or higher by
Moody's, (iv) 0.3750% if on such date clauses (i), (ii) and (iii) are
inapplicable and the Borrower's outstanding Long-Term Indebtedness is rated BBB+
or higher by Standard & Poor's and Baa1 or higher by Moody's, and (v) 0.5750% if
on such date clauses (i), (ii), (iii) and (iv) are inapplicable (including if
such Long-Term Indebtedness is no longer rated by either agency); provided that
if the respective
5-YEAR CREDIT AGREEMENT
2
levels of the Borrower's outstanding Long-Term Indebtedness credit ratings
differ, the "Applicable Eurodollar Margin" will be determined based on the level
one above that level applicable to the lower of said credit ratings.
"Applicable Facility Fee Rate" means, on any date, (i) a rate
per annum equal to 0.0700% if on such date the Borrower's outstanding Long-Term
Indebtedness is rated A+ or higher by Standard & Poor's and A1 or higher by
Moody's, (ii) a rate per annum equal to 0.0800% if on such date clause (i) is
inapplicable and the Borrower's outstanding Long-Term Indebtedness is rated A or
higher by Standard & Poor's and A2 or higher by Moody's, (iii) a rate per annum
equal to 0.0900% if on such date clauses (i) and (ii) are inapplicable and the
Borrower's outstanding Long-Term Indebtedness is rated A- or higher by Standard
& Poor's and A3 or higher by Moody's, (iv) a rate per annum equal to 0.1250% if
on such date clauses (i), (ii) and (iii) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor's
and Baa1 or higher by Moody's, and (v) a rate per annum equal to 0.1750% if on
such date clauses (i), (ii), (iii) and (iv) are inapplicable (including if such
Long-Term Indebtedness is no longer rated by either agency) provided, that if
the respective levels of the Borrower's outstanding Long-Term Indebtedness
credit ratings differ, the "Applicable Facility Fee Rate" will be determined
based on the level one above that level applicable to the lower of said credit
ratings..
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of an Uncommitted Advance, the office of such Lender
notified by such Lender to the Administrative Agent and the Borrower as its
Applicable Lending Office with respect to such Uncommitted Advance.
"Applicable Utilization Fee Rate" means, for each day on which
the Utilization Ratio exceeds 0.50, a rate per annum equal to (i) 0.1000% if on
such date the Borrower's outstanding Long-Term Indebtedness is rated A- or
higher by Standard & Poor's and A3 or higher by Moody's, and (ii) 0.1250% if on
such date clause (i) is inapplicable (including if such Long-Term Indebtedness
is no longer rated by either agency); provided that if the respective levels of
the Borrower's outstanding Long-Term Indebtedness credit ratings differ, the
"Applicable Utilization Fee Rate" will be determined based on the level one
above that level applicable to the lower of said credit ratings.
"Assignment and Acceptance" means an assignment and acceptance
accepted by the Administrative Agent, in substantially the form of Exhibit G
hereto.
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by the Reference
Bank in New York, New York, from time to time, as its base rate;
(b) 1/2 of one percent per annum above the secondary market
morning offering rate in the United States for three-month certificates
of deposit of major United States money market banks, determined by the
Reference Bank, such rate being determined by the Reference Bank on the
basis of quotations for such rates received by the Reference Bank from
three New York certificate of deposit dealers of recognized standing
selected
5-YEAR CREDIT AGREEMENT
3
by the Reference Bank adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to the next
higher 1/4 of one percent; or
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means a Committed Advance that bears
interest as provided in Section 2.05(a).
"Borrower" has the meaning specified in the first paragraph of
this Agreement.
"Borrowing" means a Committed Borrowing or an Uncommitted
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings in Dollars are
carried on in the London interbank market.
"Capital Lease" means any lease of property, real or personal,
the obligations under which are capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries.
"Change of Control" means, with respect to the Borrower, the
occurrence of any event, act or condition which results in either (i) any Person
other than the ESOP becoming the beneficial owner, directly or indirectly, of
30% or more of the outstanding common stock of the Borrower or (ii) individuals
who constitute the Continuing Directors ceasing for any reason to constitute at
least the majority of the Board of Directors of the Borrower.
"Citibank" has the meaning specified in the first paragraph of
this Agreement.
"Commitment" means, with respect to any Lender, the amount
specified opposite such Lender's name on Schedule I hereto or, if such Lender
has entered into any Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(d), as
such amount may be reduced pursuant to Section 2.01(b). The aggregate amount of
the Commitments on the date hereof is $100,000,000.
"Committed Advance" means an advance by a Lender to the
Borrower as part of a Committed Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of Committed Advance.
"Committed Borrowing" means a borrowing consisting of
simultaneous Committed Advances of the same Type made by each of the Lenders
pursuant to Section 2.01.
"Committed Note" has the meaning provided in Section 2.11.
"Consolidated Net Tangible Assets" means the excess over
current liabilities of all assets properly appearing on a consolidated balance
sheet of the Borrower and its Subsidiaries after deducting goodwill, trademarks,
patents, other like intangibles and the minority interests of others in
Subsidiaries.
5-YEAR CREDIT AGREEMENT
4
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the financial statements of which would, under GAAP, be
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Contingent Obligation" as to any Person means any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Director" means any member of the Board of
Directors of the Borrower who is not affiliated with an Acquiring Person and who
is a member of the Board of Directors of the Borrower immediately prior to the
time that the Acquiring Person became an Acquiring Person and any successor to a
Continuing Director who is not affiliated with the Acquiring Person and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors who are then members of the Board of Directors of the Borrower.
"Default" means an event which would constitute an Event of
Default but for the giving of notice, the lapse of time or both.
"Dollars" and "$" mean lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender, or such other office of such Lender as such Lender may
from time to time specify in writing to the Borrower and the Administrative
Agent.
"EBITDA" means, for any period, the sum (without duplication)
for the Borrower and its Consolidated Subsidiaries on a consolidated basis of
the following: (a) net income for such period plus (b) to the extent deducted in
determining net income for such period, the sum of (i) depreciation and
amortization for such period, (ii) Interest Expense for such period and (iii)
taxes for such period.
"Effective Date" has the meaning provided in Section 3.01.
5-YEAR CREDIT AGREEMENT
5
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successors thereto, and the
regulations promulgated and the rulings found thereunder.
"ERISA Controlled Group" means a group consisting of any ERISA
Person and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control with such Person
that, together with such Person, are treated as a single employer under
regulations promulgated under ERISA.
"ERISA Person" has the meaning provided in Section 3(9) of
ERISA for the term "person."
"ERISA Plan" means (i) any Plan that (x) is not a
Multiemployer Plan and (y) has Unfunded Benefit Liabilities in excess of
$20,000,000 and (ii) any Plan that is a Multiemployer Plan.
"ESOP" means ▇▇▇▇▇▇▇ Account Value Plan or any successor plan.
"Eurocurrency Liabilities" has the meaning provided in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office of such Lender is specified, its
Domestic Lending Office), or such other office of such Lender as such Lender may
from time to time specify in writing to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Committed Borrowing, an
interest rate per annum equal to the offered rate for deposits in Dollars as
quoted by the British Banker's Association on Telerate page 3750 (or any
successor or substitute page) at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially equal to
the Reference Bank's Eurodollar Rate Advance comprising part of such Committed
Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period.
"Eurodollar Rate Advance" means a Committed Advance that bears
interest as provided in Section 2.05(b).
"Eurodollar Rate Reserve Percentage" for any Lender for any
Eurodollar Rate Advances owing to such Lender means the reserve percentage
applicable two Business Days before the first day of the applicable Interest
Period under regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to the applicable Interest Period.
"Events of Default" has the meaning provided in Section 6.01.
5-YEAR CREDIT AGREEMENT
6
"Existing Credit Agreements" means (i) the Credit Agreement
dated as of October 21, 1998 between the Borrower, the lenders parties thereto
and Citibank, N.A., as Administrative Agent, as amended by the Amendment and
Restatement dated as of October 20, 1999, the Second Amended and Restated Credit
Agreement dated as of October 18, 2000 and as otherwise amended prior to the
date hereof, and (ii) the Amended and Restated Facility B (Five Year) Credit
Agreement dated as of October 23, 1996 between the Borrower, the lenders parties
thereto and Citibank, N.A., as Administrative Agent, as amended by the First
Amendment Agreement dated as of September 12, 1997 and as otherwise amended
prior to the date hereof.
"Excluded Representation" means the representation and
warranty set forth in Section 4.01(g).
"Federal Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, or any successor
thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve Board arranged by Federal fund brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Reference Bank from three Federal funds
brokers of recognized standing selected by the Reference Bank.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
"Fixed Rate" has the meaning provided in Section
2.13(c)(ii)(C).
"Fixed Rate Advance" means an Advance which bears interest as
provided in Section 2.05(d).
"Fixed Rate Auction" means a solicitation of Quotes setting
forth Fixed Rates pursuant to Section 2.13.
"Floating Rate" means, for any Interest Period for a Floating
Rate Advance, an interest rate per annum equal to the Base Rate in effect from
time to time minus the Floating Rate Margin for such Advance and Interest
Period.
"Floating Rate Advance" means an Advance which bears interest
as provided in Section 2.05(c).
"Floating Rate Auction" means a solicitation of Quotes setting
forth Floating Rate Margins based on the Base Rate pursuant to Section 2.13.
"Floating Rate Margin" has the meaning provided in Section
2.13(c)(ii)(B).
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
5-YEAR CREDIT AGREEMENT
7
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Indebtedness" of any Person means, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business of such Person), (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument, (iii) the
principal component of all Capital Lease obligations of such Person, (iv) the
face amount of all letters of credit issued for the account of such Person and,
without duplication, all unreimbursed amounts drawn thereunder, (v) all
indebtedness of any other Person secured by any Lien on any property owned by
such Person, whether or not such indebtedness has been assumed, (vi) all
Contingent Obligations of such Person, and (vii) all indebtedness of such Person
in respect of Hedge Agreements.
"Initial Lenders" has the meaning specified in the first
paragraph of this Agreement.
"Interest Coverage Ratio" means, for any period, the ratio of
(a) EBITDA for such period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum (determined
without duplication) of the aggregate amount of interest reported in respect of
such period on the Indebtedness of the Borrower and its Consolidated
Subsidiaries on a consolidated basis, including, without limitation, the
interest portion of payments under Capital Lease obligations and any capitalized
interest, minus (i) interest income of the Borrower and its Consolidated
Subsidiaries on a consolidated basis reported in respect of such period and (ii)
interest on deferred compensation reported in respect of such period.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Committed Borrowing, each Floating Rate Advance
comprising part of the same Uncommitted Borrowing and each Fixed Rate Advance
comprising part of the same Uncommitted Borrowing, the period commencing on the
date of such Advance or the date of the continuation of such Eurodollar Rate
Advance or the date of the conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be (a) in the case of a Eurodollar Rate Advance, one, two, three or
six months, (b) in the case of a Fixed Rate Advance, from 14 to 180 days, and
(c) in the case of a Floating Rate Advance, from 30 to 180 days, in each case as
the Borrower may select in the Notice of Borrowing, Quote Request or Notice of
Conversion or Continuation for such Advance, as the case may be; provided that:
(i) the Borrower may not select any Interest Period which ends
after the Termination Date;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur
5-YEAR CREDIT AGREEMENT
8
on the next succeeding Business Day; provided that if, in the case of
any Interest Period with respect to any Eurodollar Rate Advance, such
extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iv) below, end on the last Business
Day of a calendar month;
(iv) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(v) if, upon the expiration of any Interest Period with
respect to a Committed Borrowing consisting of Eurodollar Rate
Advances, the Borrower has failed to elect a new Interest Period to be
applicable to such Advances as provided above, the Borrower shall be
deemed to have elected to convert such Advances into a Base Rate
Advance effective as of the expiration date of such current Interest
Period; and
(vi) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Committed
Borrowing or for Fixed Rate Advances or Floating Rate Advances
comprising part of the same Uncommitted Borrowing shall be of the same
duration.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, or any successor thereto.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preferential payment arrangement, priority or other security agreement of any
kind or nature whatsoever, including, without limitation, any conditional sale
or other title retention agreement, any financing lease having substantially the
same effect as any of the foregoing and the filing of any financing statement or
similar instrument under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign.
"Long-Term Indebtedness" means the long-term Senior Unsecured
Indebtedness of the Borrower.
"Margin Stock" has the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Material Adverse Effect" means a material adverse effect on
the business, financial condition or results of operations of the Borrower and
its Consolidated Subsidiaries taken as a whole.
5-YEAR CREDIT AGREEMENT
9
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any
successor or successors thereto.
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA.
"Note" means a Committed Note or an Uncommitted Note.
"Notice of Borrowing" has the meaning provided in Section
2.02(b).
"Notice of Conversion or Continuation" has the meaning
provided in Section 2.04(b).
"Other Taxes" has the meaning provided in Section 2.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation
established under ERISA, or any successor thereto.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means any employee benefit plan covered by Title IV of
ERISA, the funding requirements of which:
(i) were the responsibility of the Borrower or a member of its
ERISA Controlled Group at any time within the five years immediately
preceding the date hereof,
(ii) are currently the responsibility of the Borrower or a
member of its ERISA Controlled Group, or
(iii) hereafter become the responsibility of the Borrower or a
member of its ERISA Controlled Group, including any such plans as may
have been, or may hereafter be, terminated for whatever reason.
"Principal Property" means all real property and tangible
personal property constituting a manufacturing plant owned by the Borrower or
any of its Subsidiaries, exclusive of (i) motor vehicles, mobile materials
handling equipment and other rolling stock, (ii) office furnishings and
equipment, information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or possession
of the United States, or any political subdivision or instrumentality of the
foregoing, on which the interest cannot, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by the Internal
Revenue Service, be included in gross income of the holder under Section
103(a)(1) of the Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, (iv) any real
property held for development or sale, or (v) any property and equipment
included therein without deduction of any depreciation reserves which is less
than 10% of Consolidated Net Tangible Assets or which the Board of Directors of
the Borrower determines is not material to the operation of the business of the
Borrower and its Subsidiaries taken as a whole.
5-YEAR CREDIT AGREEMENT
10
"Principal Subsidiary" means any Subsidiary of the Borrower
which has net sales which represent 15% or more of the consolidated net sales of
the Borrower and its Consolidated Subsidiaries taken as a whole.
"Pro Rata Share" means, with respect to any Lender, the
percentage corresponding to the fraction the numerator of which shall be the
amount of the Commitment of such Lender and the denominator of which shall be
the aggregate amount of the Commitments of all Lenders.
"Quote" means an offer by any Lender to make an advance under
Section 2.13.
"Quote Request" has the meaning provided in Section 2.13(b).
"Rate Notification" has the meaning provided in Section
2.02(a).
"Rate Request" has the meaning provided in Section 2.02(a).
"Reference Bank" means Citibank or, if Citibank is no longer
the Administrative Agent, such Person (which shall be a Lender or the
Administrative Agent) as shall be designated by the Borrower with the consent of
the Required Lenders, which consent shall not be unreasonably withheld.
"Register" has the meaning provided in Section 8.07(d).
"Reportable Event" has the meaning provided in Section 4043(b)
of ERISA (other than a Reportable Event as to which the provision of 30 days
notice to the PBGC is waived under applicable regulations).
"Required Lenders" means at any time Lenders representing in
the aggregate at least 51% of the Commitments or, if the Commitments shall have
terminated, Lenders representing in the aggregate at least 51% of the sum of the
Advances owing to Lenders hereunder.
"Senior Unsecured Indebtedness" means Indebtedness that is not
subordinated to any other Indebtedness and is not secured or supported by a
guarantee, letter of credit or other form of credit enhancement.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor or successors
thereto.
"Subsidiary" of any Person means (i) any corporation 50% or
more of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture, limited liability company or other entity in which such Person,
directly or indirectly through Subsidiaries, is either a general partner or has
a 50% or more equity interest at the time.
5-YEAR CREDIT AGREEMENT
11
"Taxes" has the meaning provided in Section 2.10(a).
"Termination Date" means the earlier of (i) October 17, 2006
or (ii) the date of termination in whole of the Commitments pursuant to Section
2.01(b) or 6.01.
"Termination Event" means (i) a Reportable Event, or (ii) the
initiation of any action by the Borrower, any member of the Borrower's ERISA
Controlled Group or any ERISA Plan fiduciary to terminate an ERISA Plan or the
treatment of an amendment to an ERISA Plan as a termination under ERISA, or
(iii) the institution of proceedings by the PBGC under Section 4042 of ERISA to
terminate an ERISA Plan or to appoint a trustee to administer any ERISA Plan.
"Type" has the meaning provided in the definitions of
Committed Advance and Uncommitted Advance.
"Uncommitted Advance" means an advance by a Lender to the
Borrower as part of an Uncommitted Borrowing resulting from the auction bidding
procedure described in Section 2.13 and refers to a Floating Rate Advance or a
Fixed Rate Advance, each of which shall be a "Type" of Uncommitted Advance.
"Uncommitted Borrowing" means a borrowing consisting of
simultaneous Uncommitted Advances from each of the Lenders whose offer to make
one or more Uncommitted Advances as part of such borrowing has been accepted
under the auction bidding procedure described in Section 2.13.
"Uncommitted Note" has the meaning provided in Section 2.11.
"Unfunded Benefit Liabilities" means with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan (on the basis
of assumptions prescribed by the PBGC for the purpose of Section 4044 of ERISA).
"Utilization Ratio" means, at any time, the ratio of (i) the
aggregate outstanding principal amount of the Advances at such time to (ii) the
aggregate amount of the Commitments at such time.
SECTION 1.02. Computation of Time Periods; Terms Generally. In
this Agreement in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding". The words "include", "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
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12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment. (a) The Committed Advances. Each
Lender agrees, on the terms and conditions hereinafter set forth, to make
Committed Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time outstanding (i) such Lender's Commitment minus
(ii) such Lender's Pro Rata Share of the aggregate principal amount of all
Uncommitted Advances then outstanding. Within the limits of each Lender's
Commitment, the Borrower may borrow, repay, prepay (as provided in Section 2.07)
and reborrow such amount or any portion thereof. Each Committed Borrowing shall
be in an aggregate amount of $10,000,000 or an integral multiple of $1,000,000
in excess thereof or, if less, the aggregate amount of the unused Commitments
and shall consist of Committed Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Notwithstanding
the foregoing restriction with respect to the minimum amount of each Committed
Borrowing, the Borrower may borrow Committed Borrowings in an aggregate amount
equal to the amount by which the aggregate amount of a proposed Uncommitted
Borrowing requested by the Borrower exceeds the aggregate amount of Uncommitted
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Uncommitted Borrowing, if such Uncommitted Borrowing is made on
the same date as such Committed Borrowing.
(b) Termination and Reduction. The Borrower shall have the
right, upon at least two Business Days' notice to the Administrative Agent, to
terminate in whole or reduce each Lender's Pro Rata Share of the unused
Commitments, provided that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the aggregate
principal amount of the Uncommitted Advances then outstanding. Each partial
reduction of the Commitments shall be in the aggregate amount of at least
$10,000,000 or a larger whole multiple of $1,000,000.
SECTION 2.02. Making the Committed Advances. (a) Determination
of Eurodollar Rate. The Borrower may request the Reference Bank, no earlier than
9:00 A.M. (New York City time) and no later than 11:00 A.M. (New York City time)
on the third Business Day before a proposed Eurodollar Rate Advance, to notify
the Borrower of the Eurodollar Rate that would be applicable to a Committed
Advance in the principal amount and with the Interest Period as described by the
Borrower in such request, which request shall be substantially in the form of
Exhibit A-1 hereto (a "Rate Request"). Upon such request, the Reference Bank
shall furnish such interest rate to the Borrower no later than noon (New York
City time) on the second Business Day before the proposed Eurodollar Rate
Advance by delivering to the Borrower a copy of the related Rate Request setting
forth such rate and executed by an authorized officer of the Reference Bank in
the space provided therefor (a "Rate Notification"). The Borrower shall be
entitled to rely on any such notification and such rate shall be conclusive and
binding on the Lenders absent manifest error.
(b) Notice of Borrowing. Each Committed Borrowing shall be
made on notice by the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice
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13
thereof by telecopier, given not later than 11:00 A.M. (New York City time) on
the date of the proposed Committed Borrowing if such Committed Borrowing is to
be comprised of Base Rate Advances and no earlier than 9:00 A.M. (New York City
time) and no later than 4:00 P.M. (New York City time) on the third Business Day
prior to such date if such Committed Borrowing is to be comprised of Eurodollar
Rate Advances. Each such notice of a Committed Borrowing (a "Notice of
Borrowing") shall be by telecopier, or by telephone confirmed immediately in
writing, in substantially the form of Exhibit A-2 hereto, specifying therein the
requested (i) date of such Committed Borrowing, (ii) Type of Advances comprising
such Committed Borrowing, (iii) aggregate amount of such Committed Borrowing and
(iv) in the case of a Committed Borrowing consisting of Eurodollar Rate
Advances, the initial Interest Period for each such Committed Advance. Each
Lender shall, before 1:00 P.M. (New York City time) on the date of such
Committed Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's Pro Rata Share of the requested amount of such
Committed Borrowing. Promptly after the Administrative Agent's receipt of such
funds (and in any event by the close of business New York City time on the date
of such Borrowing) and upon fulfillment of the applicable conditions set forth
in Article III, the Administrative Agent will make the funds so received
available to the Borrower by depositing the same in immediately available funds
into such account as the Borrower shall have specified in the related Notice of
Borrowing.
(c) Illegality, Etc. Anything in subsection (a) or (b) above
to the contrary notwithstanding,
(i) if any Lender shall, at least one Business Day before the
date of any requested Advance or the date of any conversion to or
continuation of a Eurodollar Rate Advance, notify the Administrative
Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any
central bank or other governmental authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or to fund
or maintain Eurodollar Rate Advances hereunder, the Administrative
Agent shall forthwith give notice thereof to the other Lenders and the
Borrower, whereupon (A) such Lender shall have no obligation to make
Eurodollar Rate Advances, or to convert Advances into Eurodollar Rate
Advances, until such Lender notifies the Borrower and the
Administrative Agent that the circumstances causing such suspension no
longer exist and (B) the Borrower shall be deemed to have converted all
Eurodollar Rate Advances of such Lender then outstanding into Base Rate
Advances in accordance with Section 2.04 on and as of the date of the
Administrative Agent's receipt of such notice, unless and to the extent
such notice directs that one or more Eurodollar Rate Advances shall be
so converted on the last day of the applicable Interest Period,
provided that (w) before giving any such notice, such Lender agrees to
use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need
for such suspension and conversion and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender,
(x) any request by the Borrower for Eurodollar Rate Advances during a
time when a Lender's obligation to make, or convert Advances into,
Eurodollar Rate Advances shall be suspended hereunder shall be deemed
to be a request for, or for conversion into, Base Rate Advances from
such Lender, (y) all Advances that would otherwise be made by such
Lender as Eurodollar Rate Advances during any such suspension shall
instead be made as Base Rate Advances, and (z) in the
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14
event any Lender shall notify the Administrative Agent and the
Borrower of the occurrence of the circumstances causing such
suspension under this Section 2.02(c), all payments and prepayments of
principal that would otherwise have been applied to repay the
Eurodollar Rate Advances that would have been made by such Lender or
the converted Eurodollar Rate Advances shall instead be applied to
repay the Base Rate Advances made by such Lender in lieu of, or
resulting from the conversion of, such Eurodollar Rate Advances;
(ii) if the Reference Bank cannot furnish the Eurodollar Rate
for any Committed Borrowing consisting of Eurodollar Rate Advances
because of conditions existing in the London interbank market, the
right of the Borrower to select Eurodollar Rate Advances shall be
suspended until the Reference Bank shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist;
and
(iii) if the Required Lenders shall, at least one Business Day
before the date of any requested Eurodollar Rate Advance, notify the
Administrative Agent that the Eurodollar Rate for any Interest Period
will not adequately reflect the cost to the Required Lenders of making,
funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Lenders, whereupon the Lenders shall have
no obligation to make, or convert Committed Advances into, Eurodollar
Rate Advances until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no
longer exist.
(d) Effect of Failure to Fulfill Conditions. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Committed Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Committed Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding anticipated profits), cost or
expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Committed Advance to
be made by such Lender as part of such Committed Borrowing when such Advance, as
a result of such failure, is not made on such date, such indemnity to be paid
promptly upon receipt by the Borrower of a certificate of such Lender setting
forth the calculation of the amount of the indemnity claimed by such Lender.
(e) Funds Available. Unless the Administrative Agent shall
have received notice from a Lender prior to the date of any Committed Borrowing
that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Committed Borrowing, the Administrative Agent
may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Committed Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest
5-YEAR CREDIT AGREEMENT
15
rate applicable at the time to Committed Advances comprising such Committed
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Committed Advance as part of
such Committed Borrowing for purposes of this Agreement.
(f) Failure to Make Advances. The failure of any Lender to
make the Committed Advance to be made by it as part of any Committed Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Committed Advance on the date of such Committed Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Committed
Advance to be made by such other Lender on the date of any Committed Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee on
the aggregate amount of such Lender's Commitment (whether or not utilized) from
the date hereof in the case of each Lender and, in the case of each Person which
becomes a Lender, pursuant to Section 8.07, from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender until the
Termination Date at the Applicable Facility Fee Rate, payable quarterly in
arrears on the last day of each March, June, September and December during the
term hereof and on the Termination Date. All computations of the facility fee
shall be based on a year of 365 or 366 days, as the case may be.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
(c) Utilization Fee. The Borrower shall pay to the
Administrative Agent for the pro rata account of the Lenders a utilization fee
on the outstanding principal amount of the Advances, for each day on which the
Utilization Ratio exceeds 0.50, at a rate per annum equal to the Applicable
Utilization Fee Rate, payable on each day on which a payment of interest is due
under Section 2.05.
SECTION 2.04. Continuation and Conversion. (a) General.
Subject to the other provisions hereof, the Borrower shall have the option (i)
to convert all or any part of an outstanding Committed Borrowing consisting of
Base Rate Advances to a Committed Borrowing consisting of Eurodollar Rate
Advances, (ii) to convert all or any part of an outstanding Committed Borrowing
consisting of Eurodollar Rate Advances to a Committed Borrowing consisting of
Base Rate Advances, or (iii) to continue all or any part of an outstanding
Committed Borrowing consisting of Eurodollar Rate Advances as a Committed
Borrowing consisting of Eurodollar Rate Advances for an additional Interest
Period; provided that no Committed Borrowing consisting of Eurodollar Rate
Advances shall be so converted other than as contemplated by Section 2.02(c) or
continued, until the expiration of the Interest Period applicable thereto.
(b) Notice of Conversion or Continuation. In order to elect to
convert or continue a Committed Borrowing hereunder, the Borrower shall deliver
an irrevocable notice thereof (a "Notice of Conversion or Continuation") to the
Administrative Agent by telecopier, or by telephone confirmed immediately in
writing, no later than (i) 11:00 A.M., (New York City time)
5-YEAR CREDIT AGREEMENT
16
on the proposed conversion date in the case of a conversion to Base Rate
Advances and (ii) no earlier than 9:00 A.M. (New York City time) and no later
than 4:00 P.M. (New York City time) on the third Business Day in advance of the
proposed conversion or continuation date in the case of a conversion to, or a
continuation of, Eurodollar Rate Advances, substantially in the form of Exhibit
B hereto. A Notice of Conversion or Continuation shall specify (w) the requested
conversion or continuation date (which shall be a Business Day), (x) the amount
and Type of the Advances to be converted or continued, (y) whether a conversion
or continuation is requested, and (z) in the case of a conversion to, or a
continuation of, Eurodollar Rate Advances, the requested Interest Period. The
relevant Eurodollar Rate for such Interest Period in the case of a conversion
to, or a continuation of, Eurodollar Rate Advances shall be determined in the
manner provided in Section 2.02(a) as if such conversion or continuation is
instead new Eurodollar Rate Advances in such amount, on such date and for such
Interest Period. If the Borrower fails to give a Notice of Conversion or
Continuation with respect to an outstanding Committed Borrowing consisting of
Eurodollar Rate Advances as provided in clause (ii) above, the Borrower shall be
deemed to have converted such Eurodollar Rate Advances into Base Rate Advances
in accordance with this Section 2.04 if such Advances are outstanding after the
last day of the Interest Period with respect thereto.
SECTION 2.05. Interest on Advances. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date the proceeds of such Advance are made available to the Borrower
until such principal amount shall be paid in full, at the following rates per
annum:
(a) Base Rate Advances. If such Advance is a Base Rate
Advance, a rate per annum equal to the Base Rate in effect from time to time,
payable in arrears quarterly on the last Business Day of each fiscal quarter
during the period such Base Rate Advance remains outstanding and on the date
such Base Rate Advance shall be paid in full;
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during the Interest Period for
such Advance to the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Eurodollar Margin for such Advance, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more
than three months, on each day which occurs during such Interest Period every
three months from the first day of such Interest Period;
(c) Floating Rate Advances. If such Advance is a Floating Rate
Advance, a rate per annum equal at all times during the Interest Period for such
Advance to the Floating Rate for such Interest Period quoted by such Lender in
accordance with Section 2.13, payable in arrears on the last Business Day of
such Interest Period and, if such Interest Period has a duration of more than
three months, on each day which occurs during such Interest Period every three
months from the first day of such Interest Period;
(d) Fixed Rate Advances. If such Advance is a Fixed Rate
Advance, a rate per annum equal at all times during the Interest Period for such
Advance to the Fixed Rate for such Interest Period quoted by such Lender in
accordance with Section 2.13, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than three
months, on each day which occurs during such Interest Period every three months
from the first day of such Interest Period; and
5-YEAR CREDIT AGREEMENT
17
(e) Default Rate. In the event that, and for so long as, any
Event of Default shall have occurred and be continuing, the outstanding
principal amount of all Advances and, to the extent permitted by law, overdue
interest in respect of all Advances, shall bear interest at a rate per annum
equal to the sum of two percent (2%) plus the interest rate otherwise applicable
hereunder to such principal amount in effect from time to time. In the event
that, and for so long as, any Default under Section 6.01(a) shall have occurred
and be continuing, the outstanding principal amount of the Advance with respect
to which such Default has occurred and is continuing shall bear interest at a
rate per annum equal to the sum of two percent (2%) plus the interest rate
otherwise applicable hereunder to such principal amount in effect from time to
time.
SECTION 2.06. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, during each period as such Lender shall
be required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender outstanding during such period, from the
later of the date such reserves are required and the making of such Advance
until the earlier of the date such reserves are no longer required and such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period applicable to such Advance from (ii) the rates obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the average
Eurodollar Rate Reserve Percentage of such Lender during such period, payable on
each date on which interest is payable on such Advance. Such Lender shall
determine the amount of such additional interest, if any, and promptly notify
the Borrower through the Administrative Agent of the amount thereof.
SECTION 2.07. Repayment and Prepayment of Advances. (a) The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Committed
Advances then outstanding and the Borrower shall repay to the Administrative
Agent for the account of the Lenders to which Uncommitted Advances comprising
part of the same Borrowing are owing the aggregate principal amount of such
Uncommitted Advances then outstanding on the last day of the Interest Period
with respect thereto. The Borrower shall have no right to prepay any principal
amount of any Advances other than as provided in this Section 2.07. The Borrower
may, upon notice no later than 11:00 A.M. (New York City time) on the second
Business Day before the prepayment of Eurodollar Rate Advances, and no later
than 11:00 A.M. (New York City time) on the day of the prepayment in the case of
Base Rate Advances, in either case to the Administrative Agent and stating the
proposed date and principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay the outstanding principal amount of the
Committed Advances comprising part of the same Committed Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that each partial prepayment
shall be in the aggregate principal amount of at least $10,000,000 or a larger
whole multiple of $1,000,000 and, in the case of a payment or prepayment of a
Eurodollar Rate Advance other than on the last day of the Interest Period for
such Advance as provided herein, shall have the consequences set forth in
Section 8.04(b).
(b) The Borrower shall notify the Administrative Agent
immediately upon becoming aware of any Change of Control. Upon receipt of such
notice and for a period of 90 days thereafter, the Required Lenders shall be
entitled, by written notice to the Borrower received within such period, to
terminate the Commitments in whole and require the Borrower to prepay all
outstanding Advances within 5 Business Days of its receipt of such notice,
together
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18
with any accrued and unpaid interest thereon to the date of such prepayment and
any other amounts due hereunder. Notwithstanding any other provision contained
herein, a Change of Control shall not, in and of itself, constitute a Default
hereunder.
SECTION 2.08. Increased Costs. (a) Changes in Law, Etc. If,
due to (i) the introduction of or any change in or in the interpretation of any
law or regulation on or after the date of this Agreement, or (ii) the compliance
with any guideline or request not applicable on the date of this Agreement from
any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, promptly upon demand by such Lender (with a
copy of such demand to the Administrative Agent) accompanied by the certificate
described in the next sentence, pay to the Administrative Agent for the account
of such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) Capital Adequacy. If, due to (i) the introduction of or
any change in or in the official interpretation of any law or regulation on or
after the date of this Agreement, or (ii) the compliance with any guideline or
request not applicable on the date of this Agreement from any central bank or
other governmental authority (whether or not having the force of law), any
Lender determines that the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender has been or
would be affected and that the amount of such capital is increased by or based
upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender received by the
Borrower within such time from the relevant change or introduction described
above as is reasonably required in order to determine the effect thereof (with a
copy of such demand to the Administrative Agent) accompanied by a certificate of
such Lender as to the amounts demanded, the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation, as the case may be, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder, such amounts to be due and
payable within two days of such Lender's invoice therefor. A certificate as to
such amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.09. Payments and Computations. (a) Manner of
Payment. The Borrower shall make each payment hereunder and under the Notes not
later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds.
The Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.02(d), 2.06, 2.08, 2.10,
2.13(f) or 8.04(b)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(c),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative
5-YEAR CREDIT AGREEMENT
19
Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
The making by the Borrower of any payment to the Administrative Agent for the
account of any Lender as herein provided shall pro tanto discharge the relevant
obligation of the Borrower to such Lender.
(b) Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement and the Notes held by such Lender, although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
(c) Interest. All computations of interest based on the Base
Rate shall be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate or with respect to Uncommitted
Advances and all computations of interest pursuant to Section 2.06 shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Reference Bank of an interest rate for any Committed Advance hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Business Days. Whenever any payment hereunder or under the
Notes shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Assumption of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) Rate Information. The Reference Bank shall notify the
Borrower and the Administrative Agent of the Base Rate in effect on the first
Business Day on which a Base Rate or Floating Rate Advance is outstanding and
each day on which a change in the Base Rate
5-YEAR CREDIT AGREEMENT
20
occurs, each in sufficient detail to enable the Borrower to calculate interest
payments hereunder with respect to Base Rate Advances and Floating Rate
Advances, and shall provide such information to any Lender promptly upon its
request. The Borrower will provide to the Administrative Agent (i) promptly upon
receipt thereof copies of the information received by the Borrower pursuant to
the immediately preceding sentence or any Rate Notification received pursuant to
Section 2.02(a), (ii) promptly upon the making of any interest payment with
respect to a Base Rate Advance or a Floating Rate Advance hereunder a schedule
based on such information setting forth the Base Rate for each day in the period
in which such Advance was outstanding, and (iii) promptly upon obtaining
knowledge thereof, notice of any change in the rating assigned by Standard &
Poor's or Moody's to the Borrower's Long-Term Indebtedness and the date of such
change, provided that the Borrower's failure to provide any of the foregoing
information shall be deemed not to be a Default or Event of Default hereunder.
SECTION 2.10. Taxes. (a) General. Any and all payments by the
Borrower hereunder or under the Notes shall be made in accordance with Section
2.09, free and clear of and without deduction for any and all taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, not in effect or not imposed on the date of this Agreement; excluding,
in the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it by the jurisdiction under the laws of
which such Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
(b) Other Taxes. In addition, the Borrower agrees to pay any
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement not in effect or not imposed on the date of this Agreement or the
Notes (hereinafter referred to as "Other Taxes") upon notice from the Lender.
(c) Tax Indemnity. The Borrower will indemnify each Lender and
the Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.10) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Receipt. Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.10 shall survive the payment in full of
principal and interest hereunder.
5-YEAR CREDIT AGREEMENT
21
SECTION 2.11. Promissory Notes. Any Lender may request that
Advances of any Type made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) substantially in the form of Exhibit H-1 (a
"Committed Note") in the case of the Committed Advances and substantially in the
form of Exhibit H-2 (an "Uncommitted Note"), in the case of the Uncommitted
Advances. Thereafter, such Advances evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 8.07) be represented by one or more promissory notes in such form
payable to the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).
SECTION 2.12. Use of Proceeds of Advances. The Borrower will
use the proceeds of the Advances for general corporate purposes, including,
without limitation, for the acquisition of Margin Stock.
SECTION 2.13. Uncommitted Advances. (a) The Uncommitted
Advances Option. In addition to Committed Advances pursuant to Section 2.01, the
Borrower may, as set forth in this Section 2.13, request the Lenders to make
offers to make Uncommitted Advances to the Borrower. Each Lender may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.13; provided that, following the making of each Uncommitted Borrowing, the
aggregate amount of the Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders. The Uncommitted Advances may be
Floating Rate Advances or Fixed Rate Advances.
(b) Quote Request. When the Borrower wishes to request offers
to make Uncommitted Advances as part of an Uncommitted Borrowing, it shall
transmit to the Administrative Agent, by telecopier, a quote request
substantially in the form of Exhibit C hereto (a "Quote Request") so as to be
received (x) no earlier than 9:00 A.M. (New York City time) and no later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
Borrowing proposed therein, in the case of a Fixed Rate Auction, or (y) no later
than 11:00 A.M. (New York City time) on the Business Day immediately preceding
the proposed date of Borrowing proposed therein, in the case of a Floating Rate
Auction, specifying:
(i) the proposed date of Borrowing, which shall be a Business
Day;
(ii) the proposed aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger whole multiple of $1,000,000; and
(iii) the duration of the proposed Interest Period applicable
thereto subject to the provisions of the definition of Interest Period.
The Administrative Agent shall in turn promptly notify each Lender of each
request for an Uncommitted Borrowing received by it from the Borrower by sending
such Lender a copy of the related Quote Request. The Borrower may request offers
to make Uncommitted Advances for more than one Interest Period in a single Quote
Request. No Quote Request shall be given within five Business Days of any other
Quote Request.
5-YEAR CREDIT AGREEMENT
22
(c) Submission and Contents of Quotes. (i) Each Lender may but
shall not be required to submit a Quote containing an offer or offers to make an
Uncommitted Advance as part of a proposed Uncommitted Borrowing in response to
any Quote Request. Each Quote must comply with the requirements of this Section
2.13(c) and must be submitted to the Administrative Agent (which shall give
prompt notice thereof to the Borrower) in writing (including by telecopy) no
later than (A) 11:00 A.M. (New York City time) on the third Business Day prior
to the proposed date of borrowing in the case of a Fixed Rate Auction or (B)
11:00 A.M. (New York City time) on the Business Day immediately preceding the
proposed date of borrowing, in the case of a Floating Rate Auction; provided
that if the Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower of such
offer at least 30 minutes before the time and on the date on which notice of
such election is to be given to the Administrative Agent by the other Lenders.
If any Lender shall elect not to make such an offer, such Lender shall so notify
the Administrative Agent, before 11:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Administrative Agent by the
other Lenders, and such Lender shall not be obligated to, and shall not, make
any Uncommitted Advance as part of such Uncommitted Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Uncommitted Advance as part of such proposed Uncommitted
Borrowing. Any Quote so made shall be irrevocable except with the written
consent of the Borrower.
(ii) A Quote may set forth each separate offer by a Lender
with respect to each Interest Period specified in the related Quote Request.
Each Quote shall be in substantially the form of Exhibit D hereto, and shall in
any case specify:
(A) the principal amount of the Uncommitted Advance for each
such offer, which principal amount (1) may be greater than or less than
the Commitment of such Lender, (2) must be a whole multiple of
$1,000,000, (3) may not exceed (but may be less than) the proposed
principal amount of the proposed Uncommitted Borrowing set forth in the
related Quote Request, and (4) may be subject to an aggregate
limitation as to the principal amount of Uncommitted Advances for which
offers being made by such Lender may be accepted;
(B) in the case of a Floating Rate Auction, the margin below
the Base Rate (the "Floating Rate Margin") offered for each such
Uncommitted Advance expressed as a percentage (specified to the nearest
1/1,000th of 1%) to be subtracted from such Base Rate; and
(C) in the case of a Fixed Rate Auction, the rate of interest
per annum (specified to the nearest 1/1,000th of 1%) (the "Fixed Rate")
offered for each such Uncommitted Advance.
(iii) Any Quote shall be disregarded if it:
(A) is not substantially in conformity with the format
described in the relevant Quote Request or does not specify all of the
information required by Section 2.13(c)(ii);
(B) contains qualifying, conditional or similar language;
5-YEAR CREDIT AGREEMENT
23
(C) proposes terms other than or in addition to those set
forth in the applicable Quote Request; or
(D) is received by the Administrative Agent after the time set
forth in Section 2.13(c)(i).
(d) Acceptance and Notice by Borrower. Not later than (i) 1:00
P.M. (New York City time) on the third Business Day prior to the proposed date
of borrowing, in the case of a Fixed Rate Auction or (ii) 1:00 P.M. (New York
City time) on the Business Day immediately preceding the proposed date of
borrowing, in the case of a Floating Rate Auction, the Borrower shall notify the
Administrative Agent (which shall give prompt notice thereof to the Lenders) of
its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.13(c) substantially in the form of Exhibit E hereto; provided that if
the Borrower shall fail to so notify the Administrative Agent by the times set
forth above, the Borrower shall be deemed to have notified the Administrative
Agent of its nonacceptance of each such offer. In the case of acceptance, each
such notice shall specify the aggregate principal amount of offers that are
accepted. The Borrower may accept any such offer in whole or in part; provided
that:
(i) the aggregate principal amount of each Uncommitted
Borrowing may not exceed the applicable amount set forth in the related
Quote Request;
(ii) the principal amount of each Uncommitted Borrowing must
be $10,000,000 or a larger whole multiple of $1,000,000;
(iii) acceptance of offers from the Lenders may only be made
on the basis of ascending Floating Rate Margins or Fixed Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is described
in Section 2.13(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(e) Allocation. If offers are made by more than one Lender
with the same Floating Rate Margins or Fixed Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted, the principal amount of Uncommitted Advances in respect of
which such offers are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in such multiples, not less than
$1,000,000, as it may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Administrative Agent of the
allocations of Uncommitted Advances shall be binding and conclusive in the
absence of manifest error. The Administrative Agent shall promptly notify the
Borrower and the Lenders of any allocation pursuant to this Section 2.13(e).
(f) Funding. In the case of an Uncommitted Borrowing as to
which the Borrower has accepted the offer of one or more Lenders to make an
Uncommitted Advance under clause (d) above, before 12:00 noon (New York City
time) on the date of such Uncommitted Borrowing, each such Lender shall make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such Lender's
portion of such Uncommitted Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the Administrative Agent will promptly (and in any event by
the close of business New York City
5-YEAR CREDIT AGREEMENT
24
time on the date of such Borrowing) make such funds available to the Borrower by
depositing the same in immediately available funds into such account as the
Borrower shall have specified in the related notice of acceptance (in
substantially the form of Exhibit E hereto). Promptly after each Uncommitted
Borrowing the Administrative Agent will notify each Lender of the amount of the
Uncommitted Borrowing, the aggregate principal amount of the Uncommitted
Advances then outstanding and the dates upon which such Uncommitted Advances
commenced and will mature.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Sections
2.01 and 2.13. Sections 2.01 and 2.13 of this Agreement shall become effective
on the date (the "Effective Date"), which shall be on or before October 17,
2001, as of which the Administrative Agent shall confirm to the Borrower that it
has received the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement;
(b) Authority and Approvals. Certified copies of the
resolutions of the Board of Directors of the Borrower (or equivalent
documents) authorizing and approving this Agreement, authorizing
Borrowings hereunder in an aggregate principal amount up to but not
exceeding $100,000,000 at any one time outstanding, and certified
copies of all documents evidencing all necessary corporate action and
all other necessary action (corporate, partnership or otherwise) and
governmental approvals, if any, with respect to this Agreement;
(c) Secretary's or Assistant Secretary's Certificate. A
certificate of the Secretary or an Assistant Secretary of the Borrower,
dated the Effective Date, certifying the names and true signatures of
the officers of the Borrower authorized to execute and deliver this
Agreement, the Notes, and the other documents to be delivered
hereunder;
(d) Legal Opinion. An opinion of counsel to the Borrower,
dated the Effective Date, substantially in the form of Exhibit F
hereto;
(e) Closing Certificate. A certificate of a senior financial
officer of the Borrower, dated the Effective Date, certifying that the
representations and warranties set forth in Article IV are true on such
date as if made on and as of such date and that no Default shall have
occurred and be continuing on such date; and
5-YEAR CREDIT AGREEMENT
25
(f) Termination of Commitments; Fees and Expenses. Evidence
satisfactory to the Administrative Agent that (i) the commitments under
the Existing Credit Agreements have been terminated and all accrued
fees, expenses, interest, principal and other amounts thereunder have
been paid, and (ii) the Borrower shall have paid to the Administrative
Agent for account of the Lenders such up-front fees in connection with
the execution of this Agreement as the Borrower and the Administrative
Agent shall have agreed upon.
SECTION 3.02. Conditions Precedent to Each Advance. The
obligation of each Lender to make each Advance (including the initial Advance)
as part of a Borrowing shall be subject to the further conditions precedent that
(i) on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing or the notice of
acceptance under Section 2.13(d), as the case may be, and the acceptance by the
Borrower of the proceeds of such Advance shall constitute a representation and
warranty by the Borrower that on the date of such Advance the following
statements shall be true): (x) the representations and warranties contained in
Section 4.01 (other than the Excluded Representation) are correct in all
material respects on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and (y) no event has occurred
and is continuing, or would result from such Borrowing or from the application
of the proceeds therefrom, that would constitute an Event of Default, or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both and, (ii) in the case of a requested Borrowing the proceeds
of which are to be used to purchase or carry any Margin Stock, the Borrower
shall deliver to the Administrative Agent a certificate of the chief financial
officer of the Borrower accompanying the relevant Notice of Borrowing setting
forth in reasonable detail the basis upon which the Borrower has made the
representation set forth in the third sentence of Section 4.01(l) on and as of
the date of such Borrowing, before and after giving effect to such Borrowing and
to the application of the proceeds therefrom, together with (if so requested by
the Administrative Agent) a duly completed Form U-1 satisfactory to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Corporate Existence. The Borrower is a corporation duly
organized and validly existing under the laws of the State of Connecticut.
(b) Corporate Authorization, Etc. The execution, delivery and
performance by the Borrower of this Agreement and the Notes are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's charter or bylaws or
(ii) any law or contractual restriction binding on or affecting the Borrower or
any of its Subsidiaries.
5-YEAR CREDIT AGREEMENT
26
(c) No Approvals. No authorization, approval or action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes.
(d) Enforceability. This Agreement is and upon issuance and
delivery thereof in accordance with this Agreement each Note will be the legal,
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their respective terms.
(e) Financial Information. The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 2000 and the
related statements of income and retained earnings of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which have
been furnished to the Lenders, fairly present in all material respects the
financial condition of the Borrower and its Consolidated Subsidiaries as of such
date and the results of the operations of the Borrower and its Consolidated
Subsidiaries for the period ended on such date, all in accordance with GAAP
consistently applied.
(f) No Litigation. Except as disclosed or otherwise reflected
in the Borrower's Annual Report on Form 10-K for the year ended December 31,
2000, as updated by the Borrower's Form 10-Q for the period ending July 1, 2001,
there is no pending or (to the best of the Borrower's knowledge) threatened
action or proceeding against the Borrower or any of its Subsidiaries or relating
to any of their respective properties before any court, governmental agency or
arbitrator, which could reasonably be expected to have a Material Adverse Effect
or which purports to affect the legality, validity or enforceability of this
Agreement or any Note.
(g) No Material Adverse Effect. Since December 31, 2000, there
has been no event, act or condition which has had a Material Adverse Effect.
(h) Environmental Matters. Except as disclosed or otherwise
reflected in the Borrower's Annual Report on Form 10-K for the year ended
December 31, 2000, as updated by the Borrower's Form 10-Q for the period ending
July 1, 2001, neither the Borrower nor any of its Subsidiaries has received
notice or otherwise obtained knowledge of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential or
actual liability which could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect arising in connection with (i) any
non-compliance with or violation of the requirements of any applicable federal,
state or local environmental health or safety statutes or regulations, or (ii)
the release or threatened release of any toxic or hazardous waste, substance or
constituent into the environment.
(i) Investment Company. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(j) Disclosure. The information furnished in writing by or on
behalf of the Borrower to the Lenders in connection with the negotiation,
execution and delivery of this Agreement does not contain any material
misstatements of fact or omit to state a material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(k) No Defaults. The Borrower (i) is not in default under or
with respect to this Agreement or any Note, and (ii) is not in default under or
with respect to any other agreement,
5-YEAR CREDIT AGREEMENT
27
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect which could reasonably be expected to result in
a Material Adverse Effect.
(l) Use of Proceeds, Etc. All proceeds of each Advance will be
used by the Borrower only in accordance with the provisions of Section 2.12. The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock and no proceeds of any Advance will be used
to extend credit to others for the purpose of purchasing or carrying any Margin
Stock. Neither the making of any Advance nor the use of the proceeds thereof
will violate or be inconsistent with the provisions of Regulations U or X issued
by the Board of Governors of the Federal Reserve System.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other amount owing hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder:
(a) Financial Information. The Borrower will furnish to the
Lenders:
(i) Quarterly Financial Statements. Within 50 days after the
close of each quarterly accounting period in each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such quarterly period and
the related consolidated and consolidating statements of income,
retained earnings and cash flows for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such
quarterly period, in each case setting forth comparative figures for
the related periods in the prior fiscal year.
(ii) Annual Financial Statements. Within 95 days after the
close of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as at the end
of such fiscal year and the related consolidated statement of income,
retained earnings and cash flows for such fiscal year, setting forth
comparative figures for the preceding fiscal year and reported on
without qualification by independent certified public accountants of
recognized national standing, in each case together with a report of
such accounting firm stating that in the course of its regular audit of
the consolidated financial statements of the Borrower, which audit was
conducted in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge of any Default or Event
of Default relating to accounting matters (including, without
limitation, in respect of Section 5.01(f)), or if in the opinion of
such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof.
(iii) Officer's Certificates. At the time of the delivery of
the financial statements under clauses (i) and (ii) above, a
certificate of the chief financial officer of the Borrower which
certifies (x) that such financial statements fairly present the
financial condition and
5-YEAR CREDIT AGREEMENT
28
the results of operations of the Borrower and its Consolidated
Subsidiaries on the dates and for the periods indicated, and (y) that
such officer has reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a review in reasonable
detail of the business and condition of the Borrower and its
Consolidated Subsidiaries during the accounting period covered by such
financial statements, and that as a result of such review such officer
has concluded that no Default or Event of Default has occurred during
the period commencing at the beginning of the accounting period
covered by the financial statements accompanied by such certificate
and ending on the date of such certificate or, if any Default or Event
of Default has occurred, specifying the nature and extent thereof and,
if continuing, the action the Borrower proposes to take in respect
thereof. Such certificate shall set forth the calculations required to
establish whether the Borrower was in compliance with the provisions
of Section 5.01(f) for the twelve-month period ending as at the end of
the accounting period covered by the financial statements accompanied
by such certificate.
(iv) Notice of Default or Litigation. Promptly after the
Borrower obtains knowledge thereof, notice of (i) the occurrence of any
Default or Event of Default, or (ii) any litigation or governmental
proceeding pending or threatened against the Borrower or other event,
act or condition which could reasonably be expected to result in a
Material Adverse Effect.
(v) SEC Filings. Promptly upon transmission thereof, copies of
all regular and periodic financial information, proxy materials and
other information and reports, if any, which the Borrower shall file
with the Securities and Exchange Commission or any governmental
agencies substituted therefor or which the Borrower shall send to its
stockholders.
(vi) Other Information. From time to time, and as soon as
reasonably practicable, such other information or documents (financial
or otherwise) as any Lender through the Administrative Agent may from
time to time reasonably request.
Reports and financial statements required to be delivered by the Borrower
pursuant clauses (i), (ii) and (v) of this Section 5.01 (a) shall be deemed to
have been delivered on the date on which it posts such reports, or reports
containing such financial statements, on its website on the Internet at
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ , or when such reports, or reports containing such
financial statements are posted on the website of the Securities and Exchange
Commission at ▇▇▇.▇▇▇.▇▇▇; provided that it shall deliver such paper copies of
the reports and financial statements referred to in Clauses (i), (ii) and (v) of
this Section 5.01(a) to the Administrative Agent or any Lender who request it to
deliver such paper copies until written notice to cease delivering paper copies
is given by the Administrative Agent or such Lender.
(b) Compliance with Law. The Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable laws, rules, statutes,
regulations, decrees and orders of all governmental bodies, domestic or foreign,
in respect of the conduct of their business and the ownership of their property,
except such non-compliance as could not reasonably be expected to result in a
Material Adverse Effect at the time of such noncompliance or in the foreseeable
future.
5-YEAR CREDIT AGREEMENT
29
(c) Payment of Taxes. The Borrower shall pay or cause to be
paid, and shall cause each of its Subsidiaries to pay or cause to be paid, when
due, all taxes, charges and assessments and all other lawful claims required to
be paid by the Borrower or such Subsidiaries, except (x) as contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
have been established with respect thereto in accordance with GAAP and (y) where
such nonpayment could not reasonably be expected to result in a Material Adverse
Effect.
(d) Preservation of Corporate Existence. The Borrower shall,
and shall cause each of its Subsidiaries to, do all things necessary to
preserve, renew and keep in full force and effect its corporate existence and
the licenses, permits, rights and franchises necessary to the proper conduct of
its business, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the date of this Agreement.
(e) Maintenance of Books and Records. The Borrower will
maintain financial records in accordance with GAAP, consistently applied. The
representatives of the Administrative Agent or any of the Lenders shall have the
right to visit and inspect any of the properties of the Borrower and of any of
its Subsidiaries, to examine their books of account and records and take notes
and make transcripts therefrom, and to discuss their affairs, finances and
accounts with, and be advised as to the same by, their officers upon reasonable
prior notice at such reasonable times and intervals as may be requested (subject
to the standard policies of the Borrower and its Subsidiaries as to access,
safety and, without prejudice to the reasonable requirements of lending
institutions and their regulatory supervisors, confidentiality).
(f) Interest Coverage Ratio. The Borrower shall maintain, for
each period of four consecutive fiscal quarters of the Borrower, an Interest
Coverage Ratio of not less than 5.00 to 1.00.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other amount owing hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder:
(a) No Liens. The Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist, directly or
indirectly, any Lien on any Principal Property now owned or hereafter acquired
(unless the Borrower secures the Advances made hereunder equally and ratably
with such Lien), other than:
(i) Liens existing and disclosed to the Lenders in writing
prior to the date hereof;
(ii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate
5-YEAR CREDIT AGREEMENT
30
proceedings diligently conducted and with respect to which adequate
bonds have been posted;
(iv) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(v) easements, rights-of-way, zoning and similar restrictions
and other similar charges or encumbrances not interfering with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries and which do not detract materially from the value of the
property to which they attach or impair materially the use thereof by
the Borrower or any of its Subsidiaries;
(vi) Liens on property of any Person existing at the time such
Person becomes a Subsidiary of the Borrower;
(vii) Liens securing Indebtedness owed by a Subsidiary of the
Borrower to the Borrower or another Subsidiary of the Borrower;
(viii) any Lien arising solely by operation of law in the
ordinary course of business or which is contained in a contract for the
purchase or sale of goods or services entered into in the ordinary
course of business;
(ix) Liens on any property existing at the time of acquisition
but only if the amount of outstanding Indebtedness secured thereby does
not exceed the lesser of the fair market value or the purchase price of
the property as purchased;
(x) any Lien securing the purchase price of revenues or assets
purchased after the date hereof or the cost of repairing or altering,
constructing, developing or substantially improving all or any part of
such revenues or assets; provided that such Lien attaches only to such
revenues or assets (including any improvements) and the Indebtedness
thereby secured does not exceed the lesser of the fair market value or
the purchase price of the revenues or assets (including any
improvements) as purchased;
(xi) any other Liens on Principal Properties securing
Indebtedness which in the aggregate does not exceed 10% of Consolidated
Net Tangible Assets at any time outstanding; and
(xii) any extension, renewal or replacement of any of the
Liens referred to above; provided that the Indebtedness secured by any
such extension, renewal or replacement does not exceed the sum of the
principal amount of the Indebtedness originally secured thereby and any
fee incurred in connection with such transaction.
(b) Merger, Etc. The Borrower shall not (i) enter into any
merger or consolidation, or liquidate, wind up or dissolve (or suffer any
liquidation, wind-up or dissolution), discontinue its business or convey, lease,
sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of its business or property,
5-YEAR CREDIT AGREEMENT
31
whether now or hereafter acquired, or (ii) permit any of its Subsidiaries to do
so, if such action could reasonably be expected to have a Material Adverse
Effect, except that any wholly-owned Subsidiary of the Borrower may merge into
or convey, sell, lease or transfer all or substantially all of its assets to,
the Borrower or any other wholly-owned Subsidiary of the Borrower and the
Borrower or any of its Subsidiaries may enter into any merger or consolidation
so long as in the case of a transaction involving the Borrower, the Borrower, or
in the case of any other transaction, a Subsidiary of the Borrower, is the
surviving entity in such transaction and, after giving effect thereto, no
Default or Event of Default shall have occurred or be continuing.
(c) Sale-Leasebacks. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become liable, directly or indirectly, with
respect to any lease, whether an operating lease or a Capital Lease, of any
property (whether real or personal or mixed) whether now owned or hereafter
acquired (except for property the aggregate value of which at the time such
lease is entered into is less than 10% of Consolidated Net Tangible Assets), (i)
which the Borrower or such Subsidiary has sold or transferred or is to sell or
transfer to any other Person, or (ii) which the Borrower or such Subsidiary
intends to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by the Borrower or such Subsidiary to
any other Person in connection with such lease.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay when due any principal of
any Advance (or, if any such failure is due solely to technical or
administrative difficulties relating to the transfer of such amounts,
within two Business Days after its due date) or the Borrower shall fail
to pay when due any interest on any Advance, any fee (other than the
fees referenced in Section 2.03) or any other amount payable by it
hereunder or under any Note and five (5) days shall have elapsed from
the date such interest, fees or other amounts were due; or with respect
to the fees payable pursuant to Section 2.03, the Borrower shall fail
to pay any such fee when due and two Business Days shall have elapsed
from the Borrower's receipt of notice of such nonpayment from the
Administrative Agent or any Lender; or
(b) Any representation or warranty made by the Borrower herein
or pursuant to this Agreement or any Note (including without limitation
in any certificate of the Borrower delivered pursuant hereto) shall
prove to have been incorrect in any material respect when made or
deemed made; or
(c) The Borrower shall fail to perform any term, covenant or
agreement contained in the first sentence of Section 2.07(b), Section
5.01(a)(iv), 5.01(f) or 5.02 on its part to be performed or observed;
or
5-YEAR CREDIT AGREEMENT
32
(d) The Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (except those described in
clauses (a) and (c) above) and such failure shall continue for 30 days;
or
(e) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of its
Principal Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official of the Borrower or such
Principal Subsidiary or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and such decree
or order shall remain unstayed and in effect for a period of 30
consecutive days; or
(f) The Borrower or any of its Principal Subsidiaries shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or shall consent to
the entry of any order for relief in an involuntary case under any such
law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Borrower or such Principal Subsidiary or for any
substantial part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action in furtherance
of any of the foregoing; or
(g) (A) The Borrower shall fail to make any payment in respect
of Indebtedness when due (whether by scheduled maturity, required
prepayment, acceleration or otherwise) if the aggregate amount of such
payment is $5,000,000 or more, or (B) any breach, default or event of
default shall occur and be continuing (and applicable grace and notice
periods shall have expired) under any agreement or indenture relating
to any Indebtedness in an aggregate amount of $5,000,000 or more, and,
except in the case of financial covenant defaults, the maturity of any
such Indebtedness has been accelerated in accordance with the terms
thereof; or
(h) (A) Any Termination Event shall occur, or (B) any Plan
shall incur an "accumulated funding deficiency" (as defined in Section
412 of the Code or Section 302 of ERISA), whether or not waived, or (C)
the Borrower or any member of its ERISA Controlled Group shall fail to
pay when due an amount which it shall have become liable to pay to the
PBGC, any Plan or a trust established under Title IV of ERISA, or (D) a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that an ERISA Plan must be terminated or
have a trustee appointed to administer any ERISA Plan, or (E) the
Borrower or a member of its ERISA Controlled Group suffers a partial or
complete withdrawal from a Multiemployer Plan or is in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (F) a proceeding shall be instituted against the
Borrower or any member of its ERISA Controlled Group to enforce Section
515 of ERISA, or (G) any other event or condition shall occur or exist
with respect to any Plan, if such events, transactions or conditions
set forth in clauses (A) through (G) above could singly or in the
aggregate be reasonably expected to have a Material Adverse Effect; or
(i) If there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 30 days, whether or not consecutive, any
final judgment against the Borrower or any of its Principal
Subsidiaries which, when added to any other outstanding final judgments
5-YEAR CREDIT AGREEMENT
33
which remain undischarged, unsatisfied and unstayed for more than 30
days against the Borrower or any such Principal Subsidiary, exceeds
$25,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare all Advances, the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon all
Advances, the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the case of any of the Events of Default specified in
clauses (e) or (f) above with respect to the Borrower, (A) the obligation of
each Lender to make Advances shall automatically be terminated and (B) the
Advances, the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
5-YEAR CREDIT AGREEMENT
34
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (vi) shall incur no liability
under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier) believed
by it to be genuine and signed or sent by the proper party or parties; and (vii)
shall be deemed not to have knowledge of any Default (other than a failure to
pay any principal or interest on the due date therefor) unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note or Notes issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Administrative Agent; and
the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of their Commitments, as then or
most recently in effect, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement and the Notes, or any action taken or omitted by
the Administrative Agent under this Agreement and the Notes, provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from the Administrative Agent's gross negligence
or willful misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse the Administrative Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the
5-YEAR CREDIT AGREEMENT
35
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which shall be (i) a Lender or (ii) if no Lender shall accept appointment
as the Administrative Agent within 30 days after such resignation or removal,
any other Person, which Person, so long as no Default shall have occurred and be
continuing, shall be reasonably acceptable to the Borrower. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be (i) a Lender or (ii) any other Person, which Person, so long as
no Default shall have occurred and be continuing, shall be reasonably acceptable
to the Borrower. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders, or in the case of
Section 2.13 and any Uncommitted Note, the Borrower and the Lender to which such
Note is payable, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that
the written consent of the Borrower and all the Lenders shall be required in
order to amend or waive any provision of the Agreement or the Notes other than
Section 2.13 which would have the effect of (a) a reduction in principal,
interest or fees payable to the Lenders under this Agreement or the Committed
Notes, (b) the postponement of any date fixed for the payment of any principal,
interest or fees under this Agreement or the Committed Notes, (c) an increase in
the Commitments, (d) amending or waiving compliance with the last sentence of
Section 2.01(a), Section 2.08, Section 8.05 or this Section 8.01, or (e)
amending the definition of Required Lenders; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action,
5-YEAR CREDIT AGREEMENT
36
affect the rights or duties of the Administrative Agent under this Agreement,
and provided, further, that the Commitment of any Lender shall not be extended
without the prior written consent of such Lender.
SECTION 8.02. Notices, etc.
All notices and other communications provided for hereunder shall be in writing
(including telecopier communication) and mailed, telecopied or delivered, if to
the Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Secretary, telecopy no. ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Treasurer, at the same address and telecopy no. ▇▇▇-▇▇▇-▇▇▇▇; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loans Syndication, telecopy no.
▇▇▇-▇▇▇-▇▇▇▇; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses; Breakage Indemnification.
(a) The Borrower agrees to pay on demand all reasonable costs and expenses, if
any (including, without limitation, counsel fees and expenses reasonably
incurred), of the Administrative Agent and each Lender in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment, prepayment or conversion of any Eurodollar
Rate Advance or a Fixed Rate Advance is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of acceleration of the maturity of the Advances and the
Notes pursuant to Section 6.01 or for any other reason other than in connection
with Section 2.02(c), the Borrower shall, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses which it may reasonably
incur as a result of such payment, including, without limitation, any loss, cost
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such Advance.
5-YEAR CREDIT AGREEMENT
37
(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with the actual or
proposed use of the proceeds of the Advances in connection with any acquisition
or proposed acquisition by the Borrower or any Subsidiary of the Borrower of
another Person or one or more businesses of another Person (whether by means of
a stock purchase, asset acquisition or otherwise), whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
SECTION 8.05. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Committed Advances owing to it
(other than pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or 8.04(b)) in excess
of its ratable share of payments on account of the Committed Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Committed Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 8.05 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 8.06. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations hereunder or under
any Note or any interest herein or therein (other than as permitted by Section
5.02(b)) without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, and the Committed Advances owing to it and the Committed Note or
Notes held by it); provided, however, that (i) each such assignment (other than
assignment to an affiliate of such Lender) shall require the prior written
consent of the Borrower, which consent shall not be unreasonably withheld, (ii)
each such
5-YEAR CREDIT AGREEMENT
38
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than any right to make Uncommitted
Advances, Uncommitted Advances owing to it and Uncommitted Notes), (iii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (iv) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance (which shall include the agreement of the assignee
party to such assignment, for the benefit of the Borrower, to be bound by the
terms and provisions of this Agreement to the same extent as if it were an
original party hereto), together with any Committed Note subject to such
assignment and the assignor or assignee shall pay to the Administrative Agent a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vi) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
5-YEAR CREDIT AGREEMENT
39
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Committed Note or
Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit G hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. In the case of any Lender that holds a Committed Note,
within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in
simultaneous exchange for the surrendered Committed Note a new Committed Note to
the order of such assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Committed Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Committed Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Committed Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit H-2. Such Assignment and
Acceptance shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Person as a Lender and the
resulting adjustment of the Commitments, if any, arising from such assignment of
Commitments to such Person.
(d) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks
or other financial institutions, or other entities engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of their business, in all or a portion of its
rights and/or obligations under this Agreement (including, without limitation,
all or a portion of its Commitment and the Advances owing to it and the Note or
Notes held by it); provided that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the Borrower for
the performance of such obligations, (iii) the Borrower shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (iv) such participant's right to consent to
any modification, waiver or release of any of the provisions of this Agreement
shall be limited to the right to consent to (A) any reduction in principal,
interest or fees payable to such Lender under this Agreement, (B) the
postponement of any date fixed for the payment of any principal, interest or
fees under this Agreement and (C) any amendments to the foregoing clauses (A)
and (B).
SECTION 8.08. Limitation on Assignments and Participations.
(a) Any Lender may, in connection with any actual or proposed assignment or
participation pursuant to Section 8.07, disclose to the actual or proposed
assignee or participant any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided that the actual or
5-YEAR CREDIT AGREEMENT
40
proposed assignee or participant shall have agreed prior to any such disclosure
to preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender or the Borrower.
(b) Notwithstanding anything in Section 8.07 to the contrary,
no Lender shall have the right to assign its rights and obligations hereunder or
any interest therein or to sell participations to one or more banks or other
financial institutions in all or a portion of its rights hereunder or any
interest therein where the result of such assignment or participation would be
reasonably expected to entitle the Lender to claim additional amounts pursuant
to Section 2.02(d), 2.06, 2.08, 2.10, 2.13(f) or 8.04 or would otherwise result
in an increase in the Borrower's obligations.
(c) Anything in this Section 8.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of its
rights to payment of the Advances owing to it hereunder to any Federal Reserve
Bank (and its transferees) as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any applicable
Operating Circular issued by such Federal Reserve Bank. No such assignment shall
have the effect of releasing such Lender from its obligations hereunder.
SECTION 8.09. Withholding. If any Lender, or any Person that
becomes a party to this Agreement pursuant to Section 8.07, is not incorporated
under the laws of the United States of America or a state thereof, such Person
agrees that, prior to the first date on which any payment is due to it
hereunder, it will deliver to each of the Borrower and the Administrative Agent
(i) two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI or successor applicable form, as the case may be, certifying in
each case that such Person is entitled to receive payments under this Agreement,
without deduction or withholding of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8BEN or successor applicable form, as
the case may be, to establish an exemption from United States backup withholding
tax. Each Person which delivers to the Borrower a Form W-8BEN or W-8ECI pursuant
to the preceding sentence further undertakes to deliver to each of the Borrower
and the Administrative Agent two further copies of Form W-8BEN or W-8ECI, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower and the Administrative Agent, and
such extensions or renewals thereof as may reasonably be requested by the
Borrower or the Administrative Agent, certifying in the case of a Form W-8BEN or
W-8ECI that such Person is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Person from duly completing and delivering any such
form with respect to it and such Person advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, and in the case of
a Form W-8BEN, establishing an exemption from United States backup withholding
tax.
SECTION 8.10. Mitigation. In the event that any Lender claims
any amounts under Sections 2.02(d), 2.06, 2.08, 2.10 or 8.04(b), it shall use
all reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to take actions (including, without
5-YEAR CREDIT AGREEMENT
limitation, changing the jurisdiction of its Applicable Lending Office) so as to
eliminate such additional amounts; provided that such Lender shall not be
required to take any action if, in its reasonable judgment, such action would be
materially disadvantageous to it.
SECTION 8.11. Governing Law; Waiver of Jury Trial. THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.13. Submission to Jurisdiction. The Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement and the Notes. The Borrower irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and a claim
that such proceeding brought in such a court has been brought in an inconvenient
forum.
5-YEAR CREDIT AGREEMENT
42
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective signatories thereunto duly
authorized, as of the date first above written.
THE ▇▇▇▇▇▇▇ WORKS
By_____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
43
CITIBANK, N.A.,
as Administrative Agent and as Lender
By_____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
44
FLEET NATIONAL BANK
By_____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
45
BNP Paribas
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
46
Mellon Bank, N.A.
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
48
Barclays Bank PLC
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
49
Centura Bank
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇/▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
51
The Northern Trust Company
By____________________________________
Name:
Title:
5-YEAR CREDIT AGREEMENT
52
SCHEDULE I
ADDRESS AND APPLICABLE LENDING OFFICES
Name of Lenders and Addresses Domestic Lending Office Eurodollar Lending
For Notices Office
========================================================================================================================
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
3 Mellon Bank Center, 3 Mellon Bank Center, 3 Mellon Bank Center,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
========================================================================================================================
BNP Paribas BNP Paribas BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
========================================================================================================================
Centura Bank Centura Bank Centura Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Deutsche Bank AG, New York Deutsche Bank AG, New York
Branch and/or Cayman Islands Branch and/or Cayman Islands Branch and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
========================================================================================================================
5-YEAR CREDIT AGREEMENT
53
Name of Lenders and Addresses Domestic Lending Office Eurodollar Lending
For Notices Office
========================================================================================================================
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇ Loan Admin.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Barclays Bank PLC Dept., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10265 ▇▇/▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
171-699-2298 Ref: ▇▇▇▇▇▇▇ Works
Base Rate Advances Ref: ▇▇▇▇▇▇▇ Works
Contacts: Eurodollar Rate Advances
▇▇▇▇▇▇▇▇ ▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Tel. No. Telecopy: 171-621-4583
171-699-2301 Contacts: Telex: 895-0821
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ Contacts:
▇▇▇▇▇ ▇▇▇▇
171-621-4599
========================================================================================================================
Citibank, N.A. Citibank, N.A. Citibank, N.A.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy no. ▇▇▇-▇▇▇-▇▇▇▇
Telecopy no. ▇▇▇-▇▇▇-▇▇▇▇ Telecopy no. ▇▇▇-▇▇▇-▇▇▇▇ Attention: Bank Loans
Attention: Bank Loans Syndication Attention: Bank Loans Syndication Syndication
========================================================================================================================
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ Chase Manhattan Plaza,
8th floor, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 8th floor, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 8th floor, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Primary contact -
Attention: Primary contact - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: Primary contact - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tel(212) -552-7402
Tel(212) -552-7402 Tel(212) -552-7402 Fax(212)-552-5662
Fax(212)-552-5662 Fax(212)-552-5662
Secondary Contact - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Secondary Contact - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Secondary Contact - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel(212) -552-4599 Tel(212) -552-4599 Fax(212)-552-5662
Tel(212) -552-4599 Fax(212)-552-5662
Fax(212)-552-5662
=======================================================================================================================
5-YEAR CREDIT AGREEMENT
54
Name of Lenders and Addresses Domestic Lending Office Eurodollar Lending
For Notices Office
========================================================================================================================
The Northern Trust Company The Northern Trust Company The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ Salle Street ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
=======================================================================================================================
Fleet National Bank Fleet National Bank Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇.
06115 06115 06115
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
========================================================================================================================
5-YEAR CREDIT AGREEMENT
1
Schedule I
----------
Lenders and Commitments
-----------------------
Lenders Commitment
------- ----------
Citibank, N.A. 16,071,428.57
Fleet National Bank 14,642,857.14
BNP Paribas 14,642,857.14
Mellon Bank, N.A. 14,642,857.14
The Chase Manhattan Bank 11,428,571.43
Barclays Bank PLC 7,142,857.14
Centura Bank 7,142,857.14
Deutsche Bank AG, New York Branch and/or Cayman Islands 7,142,857.14
The Northern Trust Company 7,142,857.14
B1-1
EXHIBIT A-1
RATE REQUEST
Citibank, N.A., as Reference Bank
under the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [________]
[Date]
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇ Works, refers to the Facility B (Five
Year) Credit Agreement, dated as of October 17, 2001 (as amended, modified or
supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined) among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Administrative Agent for said
Lenders and hereby requests notification from you pursuant to Section 2.02(a)
thereof of the Eurodollar Rate which is applicable to the Committed Advance to
be made (or converted or continued) on ___________________, 200_ in the
principal amount of $________ with the Interest Period of months.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By____________________________________
Name:
Title:
--------------------------------------
TO BE COMPLETED AND RETURNED BY
REFERENCE BANK:
The rate requested above,
determined as required by
the Credit Agreement, is _______.
CITIBANK, N.A., as Reference Bank
By________________________________
Authorized Officer
B1-2
1
EXHIBIT A-2
NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [________]
[Date]
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇ Works, refers to the Facility B
(Five Year) Credit Agreement, dated as of October 17, 2001 (as amended, modified
or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Administrative Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests a Committed Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Committed Borrowing (the "Proposed Committed
Borrowing") as required by Section 2.02(b) of the Credit Agreement:
(i) The Business Day of the Proposed Committed Borrowing is _____________,
200_.
(ii) The Type of Advances comprising the Proposed Committed Borrowing is
[Base Rate] [Eurodollar Rate].
(iii) The aggregate amount of the Proposed Committed Borrowing is $______ .
[(iv)] The Initial Interest Period for each Eurodollar Rate Advance made as
part of the Proposed Committed Borrowing is month[s]].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Committed Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (other than the Excluded Representation) are
correct in all material respects, before and after giving effect to the Proposed
Committed Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
B2-1
2
(B) no event has occurred and is continuing, or would result
from such Proposed Committed Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By_________________________________
Name:
Title:
B2-2
1
EXHIBIT B
NOTICE OF CONVERSION OR CONTINUATION
[Date]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [________]
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇ Works, refers to the Facility B
(Five Year) Credit Agreement, dated as of October 17, 2001 (as amended, modified
or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Administrative Agent for said
Lenders, and hereby gives you notice, pursuant to Section 2.04(b) of the Credit
Agreement, that the undersigned hereby elects to [convert][continue] the
Committed Borrowing consisting of[Base Rate][Eurodollar Rate] Advances:
(i) which is in the amount of $___________;
(ii) which, in the case of a Committed Borrowing consisting of
Eurodollar Rate Advances, has an Interest Period of _______________ month(s);*
and
(iii) which was borrowed (or previously converted or
continued) on _____________________, 200_.
---------------
* Omit clause (ii) if Committed Borrowing consisted of Base Rate
Advances.
C-1
Such [conversion][continuation] shall become effective on ,
200_ at which time such Advances shall be [converted into][continued as] [Base
Rate][Eurodollar Rate] Advances:
(i) which is in the amount of $_______________;*
and
(ii) which has an Interest Period of _____________month(s)**.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By___________________________________-
Name:
Title:
-----------------
* Omit clause (i) if conversion or continuation is for entire amount of
Committed Borrowing.
** Omit clause (ii) if conversion is into Base Rate Advance.
C-2
EXHIBIT C
FORM OF QUOTE REQUEST
[Date]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [___________]
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇ Works, refers to the Facility B
(Five Year) Credit Agreement, dated as of October 17, 2001 (as amended, modified
or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Administrative Agent for said
Lenders, and hereby gives you notice pursuant to Section 2.13 of the Credit
Agreement that the undersigned hereby requests offers to make an Uncommitted
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such Borrowing (the "Proposed Uncommitted Borrowing") is
requested to be made*:
(i) The Business Day of the Proposed Uncommitted Borrowing is
_______, 200_.
(ii) The proposed aggregate amount of the Proposed Uncommitted
Borrowing is $______.
(iii) The duration of the proposed Interest Period for the Proposed
Uncommitted Borrowing is __________.
C-1
(iv) The Type of Proposed Uncommitted Borrowing is [Fixed Rate]
[Floating Rate].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Uncommitted Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement (other than the Excluded Representation) are correct in all
material respects, before and after giving effect to the Proposed Uncommitted
Borrowing on the same day and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Uncommitted Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By________________________________________
Name:
Title:
C-2
EXHIBIT D
FORM OF QUOTE
[Date]
THE ▇▇▇▇▇▇▇ WORKS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Facility B (Five Year) Credit Agreement dated as of October 17, 2001 among
The ▇▇▇▇▇▇▇ Works, certain Lenders parties thereto, and Citibank, N.A., as
Administrative Agent for said Lenders (as amended, modified or supplemented
from time to time, the "Credit Agreement")
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the
above-referenced Credit Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby makes [a] Quote[s] pursuant to Section
2.13 of the Credit Agreement, in response to the Quote Request made by the
Borrower on [______________], and in response thereto, sets forth below the
terms on which such Quote[s] [is] [are] made:
(i) The principal amount of the Uncommitted Advance is
$___________ .
(ii) The Type of Uncommitted Advance is [Fixed Rate] [Floating
Rate].
(iii) The Floating Rate Margin in the case of a Floating Rate
Advance, or the Fixed Rate in the case of a Fixed Rate Advance, is ________.*
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to the
Borrower upon acceptance by the Borrower of this Quote in accordance with
Section 2.13(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
------------------
* Clauses (i) through (iii) should be repeated as to each additional offer
being made.
C-3
By_____________________________________
Name:
Title:
C-4
EXHIBIT E
FORM OF ACCEPTANCE
[Date]
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [________]
Re: Facility B (Five Year) Credit Agreement, dated as of October 17, 2001 (as
amended, modified or supplemented from time to time, the "Credit Agreement")
among the undersigned, certain Lenders parties thereto, and Citibank, N.A., as
Administrative Agent for said Lenders
Ladies and Gentlemen:
The undersigned, The ▇▇▇▇▇▇▇ Works, refers to the above
referenced Credit Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. In accordance with Section 2.13 of the Credit Agreements, we have
received [a] Quote/Quotes in connection with our Quote Request, dated _________,
for [an] Uncommitted Borrowing[s] to occur on _______________, and in accordance
with Section 2.13(d) of the Credit Agreement, we hereby accept the following
offer/offers for the Interest Period of [ ]:
Principal Amount Fixed Rate/Floating Rate Lender
---------------- ------------------------ ------
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By_______________________________
Name:
Title:
C-5
EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE BORROWER
October 17, 2001
To each of the Lenders listed on
Schedule I hereto and
to Citibank, N.A., as
Administrative Agent for the Lenders
Re: The Facility B (Five Year) Credit Agreement among
The ▇▇▇▇▇▇▇ Works, the Lenders party thereto and
Citibank, N.A., as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to The ▇▇▇▇▇▇▇ Works, a Connecticut
corporation (the "Borrower"), in connection with the Facility B (Five Year)
Credit Agreement dated as of even date herewith, among the Borrower, the lenders
party thereto (the "Lenders") and Citibank, N.A., as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders. This opinion is
being delivered pursuant to Section 3.01(d) of the Credit Agreement. Capitalized
terms used herein but not otherwise defined shall have the meaning set forth in
the Credit Agreement.
In rendering the opinions set forth herein, we have examined and relied
on originals or copies of (i) the Credit Agreement, (ii) the certificate
executed by the General Counsel of the Borrower dated as of the date hereof, a
copy of which is attached hereto as Exhibit A (the "Borrower's Certificate"),
(iii) a copy of the Borrower's Annual Report on Form 10-K for the year ended
January 1, 2001 (the "Form 10-K") filed with the Securities and Exchange
Commission, (iv) a copy of the Borrower's Quarterly Report on Form 10-Q for the
period ended July 1, 2001 filed with the Securities and Exchange Commission, (v)
the Restated Certificate of Incorporation of the Borrower dated September 11,
1998, filed with the Connecticut Secretary of the State's office on September
15, 1998, (vi) the Bylaws of the Borrower as amended through May 24, 2001, (vii)
Resolutions of the Board of Directors of the Borrower adopted on September 19,
2001, and (viii) a Certificate of Legal Existence of the Borrower dated October
9, 2001 issued by the Connecticut Secretary of the State. Furthermore, in
rendering the opinions set forth herein we have, with your consent, relied only
upon examination of the documents described above and upon statements and
representations of the Borrower and its officers and other representatives,
including the facts and conclusions set forth in the Borrower's Certificate and
we have made no independent verification or investigation of the factual matters
set forth therein.
C-6
In our examination we have assumed the genuineness of all signatures
including endorsements, the legal capacity of natural persons, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as facsimile, certified or
photostatic copies, and the authenticity of the originals of such copies.
We express no opinion as to the laws of any jurisdiction other than the
Applicable Laws of the States of Connecticut and New York and the United States
of America. "Applicable Laws" shall mean those laws, rules and regulations
which, in our experience, are normally applicable to transactions of the type
contemplated by the Credit Agreement without our having made any special
investigation as to the applicability of any specific law, rule or regulation,
and which are not the subject of a specific opinion herein referring expressly
to a particular law or laws. "Governmental Authorities" shall mean any United
States of America, Connecticut or New York executive, legislative, judicial,
administrative or regulatory body. "Governmental Approval" shall mean any
consent, approval, license, authorization or validation of, or filing, recording
or registration with, any Governmental Authority pursuant to Applicable Laws.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that as of the date hereof:
1. The Borrower has been duly incorporated in, and is validly existing
under the laws of, the State of Connecticut.
2. The Borrower has the corporate power and corporate authority to
execute, deliver, and perform its obligations under the Credit Agreement.
3. The execution and delivery of the Credit Agreement has been duly
authorized by all requisite corporate action on the part of the Borrower.
4. The Credit Agreement has been duly executed and delivered by the
Borrower and constitutes the valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms under the laws of
the State of New York.
5. Neither the execution, delivery or performance by the Borrower of
the Credit Agreement nor the compliance by the Borrower with the terms and
provisions thereof will contravene any provision of any Applicable Law of the
States of New York and Connecticut, or the federal laws of the United States of
America.
6. Based upon our review of Applicable Laws, but without our having
made any special investigation concerning any other law, rule or regulation, no
Governmental Approval which has not been obtained or taken and is not in full
force and effect is required to authorize or is required in connection with the
execution, delivery or performance of the Credit Agreement by the Borrower.
C-7
7. Neither the execution, delivery or performance by the Borrower of
the Credit Agreement nor the compliance by the Borrower with the terms and
provisions thereof will conflict with, contravene, violate or constitute a
default under (i) to the best of our knowledge, after due investigation, any
provision of any Applicable Contract or any other agreement or instrument to
which the Borrower or the Borrower's property is subject, (ii) any provision of
any Applicable Law, (iii) to the best of our knowledge, after due investigation,
any judicial or administrative order or decree of any Governmental Authority, or
(iv) its Certificate of Incorporation and Bylaws. As used in this paragraph,
"due investigation" means solely that we have reviewed the Certificate of the
Borrower attached hereto as Exhibit A.
8. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
Our opinions are subject to the following assumptions and
qualifications:
(a) since we do not represent the Borrower on a regular basis, we have
assumed the accuracy of the description of the Borrower's business set forth in
the Borrower's Form 10-K;
(b) enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, or other similar laws affecting
creditors' rights and remedies generally and by general principles of equity or
the exercise of judicial discretion (regardless of whether enforcement is sought
in equity or at law) including, but not limited to, principles relating to good
faith and fair dealing, commercial reasonableness and the like;
(c) we have assumed that the Credit Agreement constitutes the valid and
binding obligation of each party thereto (other than the Borrower) enforceable
against such other party in accordance with its terms;
(d) we express no opinion as to the effect on the opinions expressed
herein of (i) the compliance or non-compliance of the Administrative Agent or
any party (other than the Borrower to the extent expressly set forth herein) to
the Credit Agreement with any state, federal or other laws or regulations
applicable to them or (ii) the legal or regulatory status or the nature of the
business of the Administrative Agent;
(e) we express no opinion as to the enforceability of any rights to
contribution or indemnification provided for in the Loan Documents which are
violative of the public policy underlying any law, rule or regulation (including
any federal or state securities law, rule or regulation); and
(f) we express no opinion with respect to any provision of the Credit
Agreement to the extent it authorizes or permits any purchaser of a
participation interest to set-off or apply any deposit, property or indebtedness
with respect to any participation interest.
C-8
In rendering the foregoing opinions, we have assumed, with your
consent, that (a) the execution, delivery, or performance by the Borrower of the
Credit Agreement does not and will not conflict with, contravene, violate or
constitute a default under any rule, law, or regulation to which the Borrower is
subject (other than Applicable Laws, orders, and decrees as to which we express
an opinion in paragraph 7 herein) or any agreement or instrument to which the
Borrower or the Borrower's property is subject (except to the extent that we
express an opinion in paragraph 7 herein); and (b) no authorization, consent or
other approval of, notice to or filing with, any court, governmental authority
or regulatory body (other than Governmental Approvals as to which we express our
opinion in paragraph 6 herein) is required to authorize or is required in
connection with the execution, delivery or performance by the Borrower of the
Credit Agreement or the transactions contemplated thereby.
This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. The opinions set
forth herein are rendered as of the date hereof. We assume no obligation to
update any facts or circumstances which may hereafter come to our attention or
any changes in any laws, regulations or court decisions which may hereafter
occur.
This opinion is being furnished only to you in connection with the
Credit Agreement and is solely for your benefit and is not to be used,
circulated, quoted or otherwise referred to for any other purpose or relied upon
by any other Person for any purpose without our prior written consent, provided,
that any Person that becomes a Lender pursuant to Section 8.07(a) of the Credit
Agreement may rely on this opinion as if it were addressed to such Person and
delivered on the date hereof.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
By: ______________________
A Partner
C-9
SCHEDULE I
Lenders
Citibank, N.A.
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
C-10
Exhibit A to
TC&A Opinion
BORROWER'S CERTIFICATE
------------------------
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, am General Counsel of The ▇▇▇▇▇▇▇ Works (the
"Borrower"). I understand that pursuant to Section 3.01(d) of that certain
Facility B (Five Year) Credit Agreement dated as of October 17, 2001 (the
"Credit Agreement"), among the Borrower, the lenders party thereto (the
"Lenders") and Citibank, N.A. as administrative agent for the Lenders, ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP is relying on this certificate and the statements made
herein in rendering certain legal opinions. Capitalized terms used herein but
not otherwise defined shall have the meaning set forth in the Credit Agreement.
With regard to the foregoing, on behalf of the Borrower I certify that:
A. Based solely and exclusively on conversations with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Treasurer of Borrower;
1. The value of all securities owned by the Borrower (excluding
those issued by majority-owned Subsidiaries of the Borrower) does
not exceed 10% of the value of the Borrower's total assets;
2. Less than 25 percent of the assets of the Borrower on a
consolidated basis and on an unconsolidated basis consist of the
margin stock (as such term is defined in Regulation U of the
Board of Governors of the Federal Reserve System);
3. The Borrower (a) is primarily engaged, directly or through a
wholly-owned subsidiary or subsidiaries, in a business or
businesses other than that of investing, reinvesting, owning
holding or trading in securities and (b) is not engaged and does
not propose to engage in the business of investing, reinvesting,
owning, holding or trading in securities, and does not own or
propose to acquire investment securities having a value exceeding
40 percent of the value of the Borrower's total assets (exclusive
of government securities and cash items) on an unconsolidated
basis; and
B. Based solely and exclusively on a certain Statement by Holding
Company Claiming Exemption Under Rule U-3A-2 from the Provisions of
the Public Utility Holding Company Act of 1935 (the "Act"), filed by
Borrower with the United States Securities and Exchange Commission on
February 29, 2000 (Accession Number 0000093556-00-000003), Borrower is
exempt from the provisions of the Act.
C. Based solely and exclusively on interviews of the officers of the
Borrower responsible for its financing activities and the lawyers under my
supervision, the execution, delivery and performance by the Borrower of any of
its obligations under the Credit Agreement does not and will not conflict with,
contravene, violate or constitute a default under (i) any
I-1
provision of any Applicable Contract or any other agreement or instrument to
which the Borrower or the Borrower's property is subject, or (ii) any judicial
or administrative order or decree of any Governmental Authority.
IN WITNESS WHEREOF, I have executed this certificate this ___ day of
October, 2001.
By: _________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, General Counsel
and Secretary
I-2
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Facility B (Five Year) Credit
Agreement dated as of October 17, 2001, (as amended or modified from time to
time, the "Credit Agreement") among The ▇▇▇▇▇▇▇ Works, a Connecticut corporation
(the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank,
N.A., as administrative agent for the Lenders (the "Administrative Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Uncommitted Advances and Uncommitted
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Uncommitted Advances and Uncommitted Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Committed Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Committed Note held
by the Assignor and requests that the Administrative Agent exchange such
Committed Note for a new Committed Note payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Committed Notes payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise
I-3
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; (v)
agrees, for the benefit of the Borrower, that it will be bound by the terms and
provisions of the Credit Agreement to the same extent as if it were an original
party thereto and (vi) attaches any U.S. Internal Revenue Service forms required
under Section 8.09 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Committed Notes in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the Committed Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
By__________________________
Name:
Title:
By__________________________
Name:
Title:
I-4
By__________________________
Name:
Title:
I-5
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ________%
Assignee's Commitment: $__________
Aggregate outstanding principal amount
of Committed $__________
Advances assigned:
Principal amount of Committed Note
payable to Assignee: $__________
Principal amount of Committed Note
payable to Assignor: $__________
Effective Date1: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By__________________________
Name:
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By__________________________
Name:
Title:
Dated: _______________, 200_
--------------
1 This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
I-6
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ______ day
of _______________, 200_
Citibank, N.A., as Administrative Agent
By________________________
Name:
Title:
[Approved this __________ day
of _______________, 200_
The ▇▇▇▇▇▇▇ Works
By_______________________
Name:
Title:
I-7
EXHIBIT H-1
PROMISSORY NOTE
(Committed Advances)
$___________ Dated: _______________
FOR VALUE RECEIVED, the undersigned, The ▇▇▇▇▇▇▇ Works, a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] (the "Lender") the principal sum of $________ or, if less, the
aggregate principal amount of all Committed Advances made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below outstanding on the
Termination Date, and such amount shall be paid on or prior to the Termination
Date as provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall
have the meanings provided in the Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount
of each Committed Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at ▇ ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, in same day funds. Each Committed
Advance made by the Lender to the Borrower and the maturity thereof, and all
payments made on account of the principal amount thereof, shall be recorded by
the Lender and, prior to any transfer hereof, endorsed on the grid attached
hereto which is a part of this Promissory Note, which recordation shall be
conclusive and binding absent manifest error but the failure to make such
recording shall not have any effect on the Lender's rights hereunder.
This Promissory Note is one of the Committed Notes referred to
in, and is entitled to the benefits of, the Facility B (Five Year) Credit
Agreement dated as of October 17, 2001 (as amended, modified or supplemented
from time to time, the "Credit Agreement), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Administrative
Agent for the Lender and such other lenders. The Credit Agreement, among other
things, (i) provides for the making of Committed Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Committed Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
THE ▇▇▇▇▇▇▇ WORKS
I-8
By_____________________
Name:
Title:
By_____________________
Name:
Title:
I-9
EXHIBIT H-2
PROMISSORY NOTE
(Uncommitted Advances)
$[______] Dated: [_____]
FOR VALUE RECEIVED, the undersigned, The ▇▇▇▇▇▇▇ Works, a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] (the "Lender") the aggregate principal amount of all
Uncommitted Advances made by the Lender to the Borrower pursuant to the Credit
Agreement referred to below and such amount shall be paid in the amounts and on
the dates provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall
have the meanings provided in the Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount
of each Uncommitted Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, for the
account of the Lender, at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in
same day funds. Each Uncommitted Advance made by the Lender to the Borrower and
the maturity thereof, and all payments made on account of the principal amount
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is a part of this Promissory Note,
which recordation shall be conclusive and binding absent manifest error but the
failure to make such recording shall not have any effect on the Lender's rights
hereunder.
This Promissory Note is one of the Uncommitted Notes referred
to in, and is entitled to the benefits of, the Facility B (Five Year) Credit
Agreement dated as of October 17, 2001 (as amended, modified or supplemented
from time to time, the "Credit Agreement"), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Administrative
Agent for the Lender and such other Lenders. The Credit Agreement, among other
things, (i) provides for the making of Uncommitted Advances by the Lender to the
Borrower from time to time, the indebtedness of the Borrower resulting from each
such Uncommitted Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
I-10
THE ▇▇▇▇▇▇▇ WORKS
By__________________________
Name:
Title:
By__________________________
Name:
Title:
I-11