Execution Counterpart
AMENDED AND RESTATED
FACILITY B (FIVE YEAR) CREDIT AGREEMENT
dated as of October 23, 1996
between
THE ▇▇▇▇▇▇▇ WORKS
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS........................... 1
SECTION 1.02. Computation of Time Periods................................ 12
SECTION 1.03. Accounting Terms........................................... 12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES......... 12
SECTION 2.01. The Commitment............................................. 12
SECTION 2.02. Making the Committed Advances.............................. 13
SECTION 2.03. Fees....................................................... 16
SECTION 2.04. Continuation and Conversion................................ 16
SECTION 2.05. Interest on Advances....................................... 17
SECTION 2.06. Additional Interest on Eurodollar Rate Advances............ 18
SECTION 2.07. Repayment and Prepayment of Advances....................... 18
SECTION 2.08. Increased Costs............................................ 19
SECTION 2.09. Payments and Computations.................................. 20
SECTION 2.10. Taxes...................................................... 21
SECTION 2.11. Evidence of Debt........................................... 22
SECTION 2.12. Use of Proceeds of Advances................................ 22
SECTION 2.13. Uncommitted Advances....................................... 22
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING.................... 26
SECTION 3.01. Condition Precedent to Effectiveness of
Sections 2.01 and 2.13......................... 26
SECTION 3.02. Conditions Precedent to Each Advance....................... 26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES............................. 27
i
SECTION 4.01. Representations and Warranties of the Borrower.............. 27
ARTICLE V
COVENANTS OF THE BORROWER................................... 29
SECTION 5.01. Affirmative Covenants....................................... 29
SECTION 5.02. Negative Covenants.......................................... 32
ARTICLE VI
EVENTS OF DEFAULT........................................... 34
SECTION 6.01. Events of Default........................................... 34
ARTICLE VII
THE AGENT................................................... 37
SECTION 7.01. Authorization and Action.................................... 37
SECTION 7.02. Agent's Reliance, Etc....................................... 37
SECTION 7.03. Citibank and Affiliates..................................... 37
SECTION 7.04. Lender Credit Decision...................................... 38
SECTION 7.05. Indemnification............................................. 38
SECTION 7.06. Successor Agent............................................. 38
ARTICLE VIII
MISCELLANEOUS............................................... 39
SECTION 8.01. Amendments, Etc............................................. 39
SECTION 8.02. Notices, etc................................................ 39
SECTION 8.03. No Waiver; Remedies......................................... 40
SECTION 8.04. Costs and Expenses; Breakage Indemnification................ 40
SECTION 8.05. Sharing of Payments, Etc.................................... 41
SECTION 8.06. Binding Effect.............................................. 41
SECTION 8.07. Assignments and Participations.............................. 42
SECTION 8.08. Limitation on Assignments and Participations................ 44
SECTION 8.09. Withholding................................................. 44
SECTION 8.10. Mitigation.................................................. 45
SECTION 8.11. Governing Law; Waiver of Jury Trial......................... 45
ii
SECTION 8.12. Execution in Counterparts.................................. 45
SECTION 8.13. Submission to Jurisdiction................................. 46
iii
SCHEDULE I ADDRESSES AND APPLICABLE LENDING OFFICES
EXHIBIT A FORM OF PROMISSORY NOTE (COMMITTED ADVANCES)
EXHIBIT B-1 FORM OF RATE REQUEST
EXHIBIT B-2 FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT D FORM OF PROMISSORY NOTE (UNCOMMITTED ADVANCES)
EXHIBIT E FORM OF QUOTE REQUEST
EXHIBIT F FORM OF QUOTE
EXHIBIT G FORM OF ACCEPTANCE
EXHIBIT H FORM OF OPINION
EXHIBIT I FORM OF ASSIGNMENT AND ACCEPTANCE
iv
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 23rd day of October, 1996 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 agent (the "Agent") for the Lenders
(as hereinafter defined).
W I T N E S S E T H
WHEREAS, the Borrower, the Initial Lenders and the Agent are
parties to a Credit Agreement dated as of October 25, 1995 (the "Existing
Credit Agreement") and propose to amend and restate the Existing Credit
Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants contained herein, the Borrower, the Agent and the
Initial Lenders hereby agree that effective on the Effective Date the Existing
Credit Agreement shall be amended and restated in its entirety to read as
hereinafter set forth:
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.
"Agent's Account" means the account of the Agent maintained
by the Agent at Citibank with its office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Applicable Eurodollar Margin" means with respect to any
Interest Period for each Eurodollar Rate Advance, (i) .1800% if on the date
such Eurodollar Rate Advance is made the Borrower's outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("Standard & Poor's") and Baal or higher by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), (ii) .2000% if on the date such
Eurodollar Rate
Advance is made clause (i) is inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated BBB or higher by Standard & Poor's and Baa2 or
higher by Moody's and (iii) .2250% if on the date such Eurodollar Rate Advance
is made clauses (i) and (ii) are inapplicable (including if such Long-Term
Indebtedness is no longer rated by either agency).
"Applicable Facility Fee Rate" means as of any date of
payment of the fee required by Section 2.03 (i) a rate per annum equal to
.0700% if on such date the Borrower's outstanding Long-Term Indebtedness is
rated BBB+ or higher by Standard & Poor's and Baa1 or higher by Moody's, (ii) a
rate per annum equal to .1000% if on such date clause (i) is inapplicable and
the Borrower's outstanding Long-Term Indebtedness is rated BBB or higher by
Standard & Poor's and Baa2 or higher by Moody's, and (iii) a rate per annum
equal to .1250% if on such date clauses (i) and (ii) are inapplicable
(including if such Long-Term Indebtedness is no longer rated by either agency).
"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 Agent and the Borrower as its Applicable
Lending Office with respect to such Uncommitted Advance.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
the Agent, in substantially the form of Exhibit I 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 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.
2
"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 Subsidiar ies.
"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 the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such
Lender in the Register maintained by the Agent pursuant to Section 8.07(d), as
such amount may be reduced pursuant to Section 2.01(b).
"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" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebted ness of the Borrower to such Lender
resulting from the Committed Advances made by such Lender.
3
"Consolidated Cash Expenditures" has the meaning provided in
Section 5.01(f).
"Consolidated Cash Flow" has the meaning provided in Section
5.01(f).
"Consolidated Net Tangible Assets" means the excess over
current liabilities of all assets properly appearing on a consolidated balance
sheet of the Borrower and its Subsidiaries after deducting goodwill,
trademarks, patents, other like intangibles and the minority interests of
others in Subsidiaries.
"Consolidated Subsidiary" has the meaning provided in Section
5.01(f).
"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.
4
"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 to the Borrower and the Agent.
"Effective Date" has the meaning set forth in Section 3.01.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successors thereto, and the
regulations promulgated and the rulings found thereunder.
"ERISA Controlled Group" means a group consisting of any
ERISA Person and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control with
such Person that, together with such Person, are treated as a single employer
under regulations of the PBGC.
"ERISA Person" has the meaning set forth in Section 3(9) of
ERISA for the term "person."
"ERISA Plan" means (i) any Plan that (x) is not a
Multiemployer Plan and (y) has Unfunded Benefit Liabilities in excess of
$20,000,000 and (ii) any Plan that is a Multiemployer Plan.
"ESOP" means The ▇▇▇▇▇▇▇ Works 401(k) Savings 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 to the Borrower and the 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 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.
5
"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 specified in Section 6.01.
"Federal Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, or any successor
thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve Board arranged by Federal fund brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Reference Bank from three
Federal funds brokers of recognized standing selected by the Reference Bank.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
"Fixed Rate" has the meaning set forth in Section
2.13(c)(ii)(C).
"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.
6
"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.
"Indebtedness" of any Person means, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business of such Person), (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument, (iii) the
principal component of all Capital Lease obligations of such Person, (iv) the
face amount of all letters of credit issued for the account of such Person and,
without duplication, all unreimbursed amounts drawn thereunder, (v) all
indebtedness of any other Person secured by any Lien on any property owned by
such Person, whether or not such indebtedness has been assumed, (vi) all
Contingent Obligations of such Person, and (vii) all payment obligations of
such Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements.
"Initial Lenders" has the meaning specified in the first
paragraph of this Agreement.
"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;
7
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided that if, in the case of any Interest Period
with respect to any Eurodollar Rate Advance, such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iv) below, end on the last Business
Day of a calendar month;
(iv) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(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.
8
"Long-Term Indebtedness" means the long-term Senior Unsecured
Indebtedness of the Borrower.
"Margin Stock" has the meaning ascribed to such term 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.
"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.
"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 esponsibility of the Borrower or a
member of its ERISA Controlled Group, or
9
(iii) hereafter become the responsibility of the Borrower or
a member of its ERISA Controlled Group, including any such plans as
may have been, or may hereafter be, terminated for whatever reason.
"Principal Property" means all real property and tangible
personal property constituting a manufacturing plant owned by the Borrower or
any of its Subsidiaries, exclusive of (i) motor vehicles, mobile materials
handling equipment and other rolling stock, (ii) office furnishings and
equipment, information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or
possession of the United States, or any political subdivision or
instrumentality of the foregoing, on which the interest cannot, in the opinion
of tax counsel of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, be included in gross income of the holder under
Section 103(a)(1) of the Internal Revenue Code (or any successor to such
provision) as in effect at the time of the issuance of such obligations, (iv)
any real property held for development or sale, or (v) any property and
equipment included therein without deduction of any depreciation reserves which
is less than 10% of Consolidated Net Tangible Assets or which the Board of
Directors of the Borrower determines is not material to the operation of the
business of the Borrower and its Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary of the Borrower
which has net sales which represent 15% or more of the consolidated net sales
of the Borrower and its Consolidated Subsidiaries taken as a whole.
"Pro Rata Share" means, 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 set forth in Section 2.13(b).
"Rate Notification" has the meaning set forth in Section
2.02(a).
"Rate Request" has the meaning set forth in Section 2.02(a).
"Reference Bank" means Citibank or, if Citibank is no longer
the Agent, such Person (which shall be a Lender or the 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 specified in Section 8.07(d).
10
"Reportable Event" has the meaning set forth in Section
4043(b) of ERISA (other than a Reportable Event as to which the provision of 30
days notice to the PBGC is waived under applicable regulations).
"Required Lenders" means 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.
"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.
"Taxes" has the meaning provided in Section 2.10.
"Termination Date" means the earlier of (i) October 25, 2001
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.
11
"Uncommitted Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit D
hereto, evidencing the indebtedness of the Borrower to such Lender resulting
from the Uncommitted Advances made by such Lender.
"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.
"Unfunded Benefit Liabilities" means with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan (on the
basis of assumptions prescribed by the PBGC for the purpose of Section 4044 of
ERISA).
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment. (a) 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
12
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 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 B-1 (a "Rate Request"). Upon such request,
the Reference Bank shall furnish such interest rate to the Borrower no later
than noon (New York City time) on the second Busi ness 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 Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex, 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, telex or cable, or
by telephone confirmed immediately in writing, in substantially the form of
Exhibit B-2 hereto, specifying therein the requested (i) date of such Committed
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 Agent at the
Agent's Account, in same day funds, such Lender's Pro Rata Share of such
13
Committed Borrowing. Promptly after the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will 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 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 Agent that the
introduction of or any change in or in the interpreta tion 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 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 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 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 event any Lender
shall notify the 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;
14
(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 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 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
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 calcula tion of the amount of the indemnity
claimed by such Lender.
(e) Funds Available. Unless the 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 Agent such Lender's ratable portion of
such Committed Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Committed Borrowing in
accordance with subsection (a) of this Section 2.02 and the 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 Agent, such Lender and the Borrower
severally agree to repay to the 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
Agent, at (i) in the case of the Borrower, the interest 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
Agent such corresponding amount, such amount so repaid
15
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 Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
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) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
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 Agent by telecopier, telex or cable or by telephone
confirmed immediately in writing, no later than (i) 11:00 A.M., (New York City
time) on the proposed conversion date in the case of a conversion to 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
16
of a conversion to, or a continuation of, Eurodollar Rate Advances,
substantially in the form of Exhibit C hereto. A Notice of Conversion or
Continuation shall specify (w) the requested conversion or continuation date
(which shall be a Business Day), (x) the amount and Type of the 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 accor dance 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 of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate
Advance, a rate per annum equal to the Base Rate in effect from time to time,
payable 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
17
last day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day which occurs during such Interest Period
every three months from the first day of such Interest Period; and
(e) Default Rate. In the event that, and for so long as, any
Event of Default shall have occurred and be continuing, the outstanding
principal amount of all Advances and, to the extent permitted by law, overdue
interest in respect of all Advances, shall bear interest at a rate per annum
equal to the sum of two percent (2%) plus the interest rate otherwise
applicable hereunder to such principal amount in effect from time to time. In
the event that, and for so long as, any Default under Section 6.01(a) shall
have occurred and be continuing, the outstanding principal amount of the
Advance with respect to which such Default has occurred and is continuing shall
bear interest at a rate per annum equal to the sum of two percent (2%) plus the
interest rate otherwise applicable hereunder to such principal amount in effect
from time to time.
SECTION 2.06. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to 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 Agent of the amount thereof.
SECTION 2.07. Repayment and Prepayment of Advances. (a) The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Committed Advances then
outstanding and shall repay to the 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 at least two Business Days' notice
to the Agent 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
18
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 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 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 Agent) accompanied by the certificate
described in the next sentence, pay to the 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 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 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 Agent) accompanied by a certificate of such Lender as to the
amounts demanded, the Borrower shall pay to the Agent for the account of such
Lender, from time to time as speci fied by such Lender, additional amounts
sufficient to compensate such Lender or such corpo ration, 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
19
as to such amounts submitted to the Borrower and the 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 Agent at the Agent's Account in same day funds. The 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 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.
(b) Setoff. The Borrower hereby authorizes each Lender, if
and to the extent payment owed to such Lender is not made when due hereunder or
under the Note or Notes held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender any amount so
due.
(c) Interest. All computations of interest based on the Base
Rate shall be made by the 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 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.
20
(e) Assumption of Payment. Unless the 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 Agent may assume that the Borrower has made such payment in full to the
Agent on such date and the 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 Agent, each Lender shall repay to the 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 Agent, at the
Federal Funds Rate.
(f) Rate Information. The Reference Bank shall notify the
Borrower and the 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 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 each Lender (i)
(unless the Lender is the Reference Bank) promptly upon receipt thereof copies
of the information received by the Borrower pursuant to the immediately
preceding sentence or any Rate Notification received pursuant to Section
2.02(a), (ii) promptly upon the making of any interest payment with respect to
a Base Rate Advance or a Floating Rate Advance hereunder a schedule based on
such information setting forth the Base Rate for each day in the period in
which such Advance was outstanding, and (iii) promptly upon obtaining knowledge
thereof, notice of any change in the rating assigned by Standard & Poor's or
Moody's to the Borrower's Long-Term Indebtedness and the date of such change,
provided that the Borrower's failure to provide any of the foregoing
information shall be deemed not to be a Default or Event of Default hereunder.
SECTION 2.10. Taxes. (a) General. Any and all payments by the
Borrower hereunder 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 Agent, taxes imposed on its income, and
franchise taxes imposed on it by the jurisdiction under the laws of which such
Lender or the 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
21
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 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 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 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 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.
SECTION 2.11. Evidence of Debt. The Committed Advances owing
to each Lender shall be evidenced by the Committed Note to the order of such
Lender and the Uncom mitted Advances owing to each Lender shall be evidenced by
the Uncommitted Note to the order of such Lender, in each case delivered to
such Lender pursuant to Article III. The entries made in each Committed Note
and each Uncommitted Note shall be conclusive and binding for all purposes
absent manifest error.
SECTION 2.12. Use of Proceeds of Advances. The Borrower will
use the proceeds of the Advances for general corporate purposes, 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.
22
(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 Agent, by telecopier or telex, a quote request substantially in
the form of Exhibit E hereto (a "Quote Request") so as to be received (x) no
earlier than 9:00 A.M. (New York City time) and no later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of Borrowing
proposed therein, in the case of a Fixed Rate Auction, or (y) no later than
11:00 A.M. (New York City time) on the Business Day immediately preceding the
proposed date of Borrowing proposed therein, in the case of a Floating Rate
Auction, specifying:
(i) the proposed date of Borrowing, which shall be a Business
Day;
(ii) the proposed aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger whole multiple of $1,000,000; and
(iii) the duration of the proposed Interest Period applicable
thereto subject to the provisions of the definition of Interest
Period.
The 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.
(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 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 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 Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the 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 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.
23
(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 F hereto, and shall in
any case specify:
(A) the principal amount of the Uncommitted Advance for each
such offer, which principal amount (1) may be greater than or less
than the Commitment of 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;
(C) proposes terms other than or in addition to those set
forth in the applicable Quote Request; or
(D) is received by the 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 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 G hereto; provided that if the
Borrower shall fail to so notify the Agent by the times
24
set forth above, the Borrower shall be deemed to have notified the 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 principalamount 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 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 Agent of the allocations of Uncommitted
Advances shall be binding and conclusive in the absence of manifest error. The
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 Agent at the
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 Agent of such funds, the Agent will 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 G). Promptly after
each Uncommitted Borrowing the 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.
25
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of
Sections 2.01 and 2.13. This Agreement shall become effective on the date (the
"Effective Date") as of which the Agent shall confirm to the Borrower that it
has received the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient copies for
each Lender:
(a) Notes. The Committed Notes and the Uncommitted Notes to
the order of the Lenders, respectively;
(b) Resolutions, Etc. Certified copies of documents
evidencing all necessary corporate action and governmental approvals,
if any, with respect to this Agreement, the Committed Notes and the
Uncommitted Notes;
(c) Incumbency. A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign this
Agreement, the Committed Notes, the Uncommitted Notes and the other
documents to be delivered hereunder; and
(d) Legal Opinion. An opinion of counsel to the Borrower
substantially in the form of Exhibit H.
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 repre sentations and warranties contained in
Section 4.01 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 Agent a
certificate of the chief financial officer of the
26
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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Corporate Existence. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Connecticut.
(b) Corporate Authorization, Etc. The execution, delivery and
performance by the Borrower of this Agreement 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 Bor rower's charter or by-laws
or (ii) any law or contractual restriction binding on or affecting the Borrower
or any of its Subsidiaries.
(c) No Approvals. No authorization, approval or action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the Borrower of
this Agreement or the Notes.
(d) Enforceability. This Agreement is and upon issuance and
delivery thereof in accordance with Article III 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 30, 1995 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 30,
1995, there is no pending or (to the best of the Borrower's knowledge)
threatened action or proceeding against the
27
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 30, 1995,
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 30, 1995, 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, 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 G,
U, or X issued by the Board of Governors of the Federal Reserve System.
28
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 accor dance 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 the results of operations of the Borrower and
its Subsidiaries on the dates and for the periods indicated, and (y)
that such officer has reviewed the terms of this Agreement and has
made, or caused to be made under his or her supervision, a review in
reasonable detail of the business and condition of the Borrower and
its Consolidated Subsidiaries during the accounting period covered by
such financial statements, and that as a result of such review such
officer has concluded that no Default or Event of Default
29
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 Agent may from time to time
reasonably request.
(b) Compliance with Law. The Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable laws, rules, statutes,
regulations, decrees and orders of all governmental bodies, domestic or
foreign, in respect of the conduct of their business and the ownership of their
property, except such non-compliance as could not reasonably be expected to
result in a Material Adverse Effect at the time of such noncompliance or in the
foreseeable future.
(c) Payment of Taxes. The Borrower shall pay or cause to be
paid, and shall cause each of its Subsidiaries to pay or cause to be paid, when
due, all taxes, charges and assessments and all other lawful claims required to
be paid by the Borrower or such Subsidiaries, except (x) as contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
have been established with respect thereto in accordance with GAAP and (y)
where such nonpayment could not reasonably be expected to result in a Material
Adverse Effect.
(d) Preservation of Corporate Existence. The Borrower shall,
and shall cause each of its Subsidiaries to, do all things necessary to
preserve, renew and keep in full force and
30
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 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 at such reasonable times
and intervals as may be requested.
(f) Financial Condition. The Borrower shall cause
Consolidated Cash Flow to equal or exceed 125% of Consolidated Cash
Expenditures at the end of each fiscal quarter for the twelve-month period then
ended. The defined terms used in this clause (f) shall be construed in
accordance with GAAP and as follows:
(i) "Consolidated Cash Flow" means for any fiscal period the
sum of (A) consolidated earnings before income taxes of the Borrower
and its Consolidated Subsidiaries for such fiscal period (including
any earnings representing net gain on disposition of assets) before
extraordinary items and their tax effects and before income from
discontinued operations; (B) to the extent such amount is greater than
zero, (x) consolidated interest expense for the Borrower and its
Consolidated Subsidiaries for such fiscal period, minus (y)
consolidated interest earnings for the Borrower and its Consol idated
Subsidiaries for such fiscal period; (C) consolidated depreciation and
amortization for the Borrower and its Consolidated Subsidiaries for
such fiscal period; (D) for any fiscal period which includes a fiscal
quarter in fiscal year 1995, restructuring charges of the Borrower and
its Consolidated Subsidiaries up to an aggregate of $85.5 million in
fiscal year 1995 to the extent such charges are taken into account in
determining consolidated earnings during such fiscal quarter; (E) for
any fiscal period which includes a fiscal quarter in fiscal year 1996,
restructuring charges of the Borrower and its Consolidated
Subsidiaries up to an aggregate of $100 million in fiscal year 1996 to
the extent such charges are taken into account in determining
consolidated earnings for such fiscal quarter; and (F) for any fiscal
period which includes a fiscal quarter in fiscal year 1997,
restructuring charges of the Borrower and its Consolidated
Subsidiaries up to an aggregate of an amount equal to (a) $100 million
minus (b) the aggregate amount of restructuring charges taken into
account in determining consolidated earnings for any fiscal quarter in
1996.
31
(ii) "Consolidated Cash Expenditures" means for any fiscal
period the sum of (A) consolidated interest expense of the Borrower
and its Consolidated Subsidiaries, (B) consolidated capital
expenditures of the Borrower and its Consolidated Subsidiaries and (C)
the aggregate amount of all dividends paid or declared by the Borrower
on any of its capital stock during such fiscal period; and
(iii) "Consolidated Subsidiary" means at any date any
Subsidiary or other entity the financial statements of which would,
under GAAP, be consolidated with those of the Borrower in its
consolidated financial statements as of such date.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other amount owing hereunder shall remain unpaid or 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 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 con nection 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
32
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 busi ness or which is contained in a contract for
the purchase or sale of goods or services entered into in the ordinary
course of business;
(ix) Liens on any property existing at the time of
acquisition but only if the amount of outstanding Indebtedness secured
thereby does not exceed the lesser of the fair market value or the
purchase price of the property as purchased;
(x) any Lien securing the purchase price of revenues or
assets purchased after the date hereof or the cost of repairing or
altering, constructing, developing or substantially improving all or
any part of such revenues or assets; provided that such Lien attaches
only to such revenues or assets (including any improvements) and the
Indebtedness thereby secured does not exceed the lesser of the fair
market value or the purchase price of the revenues or assets
(including any improvements) as purchased;
(xi) any other Liens securing Indebtedness which in the
aggregate does not exceed 10% of Consolidated Net Tangible Assets at
any time outstanding; and
(xii) any extension, renewal or replacement of any of the
Liens referred to above; provided that the Indebtedness secured by any
such extension, renewal or replacement does not exceed the sum of the
principal amount of the Indebtedness originally secured thereby and
any fee incurred in connection with such transaction.
(b) Merger, Etc. The Borrower shall not (i) enter into any
merger or consolidation, or liquidate, wind up or dissolve (or suffer any
liquidation, wind-up or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of its business or property, whether now
or hereafter acquired, or (ii) permit any of its Subsidiaries to do so, if such
action could reasonably be expected to have a Material Adverse Effect, except
that any wholly-owned Subsidiary of the Borrower may merge into or convey,
sell, lease or transfer all or substantially all of its assets to, the Borrower
or any other wholly-owned Subsidiary of the Borrower and the Borrower or any of
its Subsidiaries may enter into any merger or consolidation so long as in the
33
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 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
34
(c) The Borrower shall fail to perform any term, covenant or
agreement contained in Section 5.01(a)(iv), 5.01(f) or 5.02 on its
part to be performed or observed; or
(d) The Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (except those described in
clauses (a) and (c) above) and such failure shall continue for 30
days; or
(e) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of its
Principal Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or other similar official of the Borrower or
such Principal Subsidiary or for any substantial part of its property,
or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 30
consecutive days; or
(f) The Borrower or any of its Principal Subsidiaries shall
commence a volun tary 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
35
adjudicating that an ERISA Plan must be terminated or have a trustee
appointed to administer any ERISA Plan, or (E) the Borrower or a
member of its ERISA Controlled Group suffers a partial or complete
withdrawal from a Multiemployer Plan or is in "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan, or (F) a proceeding shall be instituted against
the Borrower or any member of its ERISA Controlled Group to enforce
Section 515 of ERISA, or (G) any other event or condition shall occur
or exist with respect to any Plan, if such events, transactions or
conditions set forth in clauses (A) through (G) above could singly or
in the aggregate be reasonably expected to have a Material Adverse
Effect; or
(i) If there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 30 days, whether or not consecutive, any
final judgment against the Borrower or any of its Principal
Subsidiaries which, when added to any other outstanding final
judgments which remain undischarged, unsatisfied and unstayed for more
than 30 days against the Borrower or any such Principal Subsidiary,
exceeds $5,000,000;
then, and in any such event, the 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 AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the 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 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 Agent shall not be required to
exercise any discretion or take any action, but shall be
36
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 Agent shall not be required to
take any action that exposes the Agent to personal liability or that is
contrary to this Agreement or applicable law. The 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. Agent's Reliance, Etc. Neither the 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 Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
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 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; and (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, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
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 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 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 Agent or
any other Lender and based on the
37
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 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 Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Committed Notes then held by each of
them (or if no Committed Notes are at the time outstanding or if any Committed
Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), 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 Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Agent under this Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the 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 Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The 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 Agent, which shall be (i) a Lender or (ii) if no Lender
shall accept appointment as the 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 Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint
a successor 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 Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as
38
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 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 and the Uncommitted Notes 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 Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 8.02. Notices, etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier
or telex communication) and mailed, telecopied, telexed or delivered, if to the
Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary, telecopy no. ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Director, Corporate Finance, at the same address and telecopy no.
203-827- 3848; 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 Agent, at its address at ▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Loan
Investor Services Department; or, as to the Borrower or the 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 Agent. All
such notices and communications shall, when telecopied or telexed, be effective
when telecopied (with receipt confirmed by telephone) or confirmed by telex
answerback, respectively, and when mailed or delivered, when received, except
that notices and communications to the Agent pursuant to Article II, III or VII
shall not be effective until
39
received by the Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes 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 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 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 Agent), pay to the 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.
(c) The Borrower agrees to indemnify and hold harmless the
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
40
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 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, 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 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
41
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 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 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 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 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 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.
42
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Committed Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit I 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. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Committed Note
a new Committed Note to the order of such Eligible 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 A hereto. 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 Agent 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 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 ▇▇▇▇▇ cial institutions in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, 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,
43
interest or fees under this Agreement and (C) increase in the Commitment, and
(D) any amendments to the foregoing clauses (A), (B) and (C).
SECTION 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
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 Agent (i) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that
such Person is entitled to receive payments under this Agreement and the Note
or Notes payable to it, without deduction or withholding of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax. Each Person which delivers to the
Borrower a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the preceding
sentence further undertakes to deliver to each of the Borrower and the Agent
two further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occur rence of any event requiring a change in the most recent form previously
delivered by it to the
44
Borrower and the Agent, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Agent, certifying in the case of
a Form 1001 or 4224 that such Person is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Person from duly completing and
delivering any such form with respect to it and such Person advises the
Borrower and the 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-8 or W-9, 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 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 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 or any Note. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and a claim that such proceeding brought in such a court has been brought in an
inconvenient forum.
45
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 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President, Finance and
Chief Financial Officer
$22,500,000 CITIBANK, N.A.,
as Agent and as Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: As-Attorney-In-Fact
INITIAL LENDERS
$17,500,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
46
$17,500,000 BANQUE NATIONALE DE PARIS
By /s/ Sophie Revillard Kaufman
---------------------------------------
Name: Sophie Revillard ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
$10,000,000 BARCLAYS BANK PLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
$17,500,000 FLEET NATIONAL BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
$17,500,000 ROYAL BANK OF CANADA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Manager, Corporate Banking
47
$17,500,000 MELLON BANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
$17,500,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
$12,500,000 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ ▇▇.
▇▇ /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
48
SCHEDULE I
ADDRESS AND APPLICABLE LENDING OFFICES
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=================================================== ========================================= ===================================
Citibank, N.A. Citibank, N.A. Citibank, N.A.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 1 7th Floor, Zone 1
One Court Square One Court Square One Court Square
Long Island City, N.Y. 11120 Long Island City, N.Y. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇/▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇/
▇▇▇▇▇ ▇▇▇
=================================================== ========================================= ===================================
Banque Nationale BNP - New York BNP - Georgetown
de Paris ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ New York, N.Y. 10022
New York, N.Y. 10022 Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
=================================================== ========================================= ===================================
▇▇▇▇▇▇ Guaranty Loan Department c/o ▇.▇. ▇▇▇▇▇▇
Trust Company of ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Euro-Loan Servicing ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
=================================================== ========================================= ===================================
SCHEDULE I-1
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=================================================== ========================================= ===================================
State Street Bank & Trust Co. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ Bank & Trust Co.225
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Mr. F. ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: Mr. F. ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: Mr. F. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
=================================================== ========================================= ===================================
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada Grand
One Financial Square Grand Cayman (North America Cayman (North America
23rd Floor No. 1) Branch No. 1) Branch
New York, New York c/o New York Branch ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ One Financial Square 23rd One Financial Square
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Floor 23rd Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attn: Manager, Credit 10005-3531
Administration
=================================================== ========================================= ===================================
Copy to:
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Manager
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
=================================================== ========================================= ===================================
SCHEDULE I-2
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=================================================== ========================================= ===================================
Wachovia Bank of Wachovia Bank of Wachovia Bank of
Georgia, N.A. Georgia, N.A. Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
MC370 MC370 MC370
=================================================== ========================================= ===================================
SCHEDULE I-3
Name of Lenders
And Addresses Domestic Eurodollar Uncommitted
For Notices Lending Office Lending Office Lending Office
============================ ============================= ==================================== ================================
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇ Loan Admin. ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Barclays Bank PLC Dept., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. Swithins House New York, N.Y. 10038
new York, N.Y. 10265 ▇▇/▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Ref: ▇▇▇▇▇▇▇ Works
171-699-2298 Ref: ▇▇▇▇▇▇▇ Works Uncommitted Bid Option
Base Rate Advances Ref: ▇▇▇▇▇▇▇ Works
Contact: Eurodollar Rate Advances Contacts:
▇▇▇▇▇▇▇▇ ▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: 171-621-4583 ▇▇▇▇ ▇▇▇▇▇▇
Contacts: Telex: 8950821 ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Telecopy: __________
▇▇▇-▇▇▇-▇▇▇▇ Contacts:
▇▇▇▇▇ ▇▇▇▇
171-621-4599
Barclays Bank
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE I-4
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
========================================== ====================================== =============================================
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
Three Mellon Center Three Mellon Center Three Mellon Center
Pittsburgh, Pa. Pittsburgh, Pa. Pittsburgh, Pa.
15259-0001 15259-0001 15259-0001
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Mellon Financial Services Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
========================================== ====================================== =============================================
Fleet National Bank Fleet National Bank Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇.
06115 06115 06115
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE I-5
EXHIBIT A
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 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 23, 1996 (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 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
A-1
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
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
A-2
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------
===============================================================================
Date Amount of Amount of Principal Unpaid Principal Notation
Advance Paid or Prepaid Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
▇-▇
▇▇▇▇▇▇▇ ▇-▇
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 23, 1996 (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 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 ______, 19__ in the principal amount of $_________
with the Interest Period of __ months.
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By
--------------------------
Name:
Title:
B1-1
-------------------------------
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
EXHIBIT B-2
NOTICE OF BORROWING
Citibank, N.A., as 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 23, 1996 (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 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
_________, 19__.
(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]].
B2-1
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 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
(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.
The Borrower's account information for funding purposes is Account ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ No. 021-00-0089, Long Island City, New York,
Ref. .
Very truly yours,
The ▇▇▇▇▇▇▇ Works
By
--------------------------------
Name:
Title:
B2-2
EXHIBIT C
NOTICE OF CONVERSION OR CONTINUATION
[Date]
Citibank, N.A., as 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 23, 1996 (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 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
________, 199_.
-------------------
* Omit clause (ii) if Committed Borrowing consisted of Base Rate Advances.
C-1
Such [conversion][continuation] shall become effective on , 199 , 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 D
PROMISSORY NOTE
(Uncommitted Advances)
$150,000,000 Dated: October 23, 1996
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 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 23, 1996 (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 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
D-1
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
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
D-2
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------
===============================================================================
Date Amount of Amount of Principal Unpaid Principal Notation
Advance Paid or Prepaid Balance Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
D-3
EXHIBIT E
FORM OF QUOTE REQUEST
[Date]
Citibank, N.A., as 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 23, 1996 (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 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
__________, 19__.
(ii) The proposed aggregate amount of the Proposed Uncommitted
Borrowing is $_________.
-------------------
* Information required for a Borrowing may be repeated as necessary if more
than one Borrowing is being requested in one Form of Quote Request.
E-1
(iii) The duration of the proposed Interest Period for the Proposed
Uncommitted Borrowing is ___________.
(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 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:
E-2
EXHIBIT F
FORM OF QUOTE
[Date]
THE ▇▇▇▇▇▇▇ WORKS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Facility B (Five Year) Credit Agreement dated as of October 23, 1996 among
The ▇▇▇▇▇▇▇ Works, certain Lenders parties thereto, and Citibank, N.A., as
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
, 19 , and in response thereto, sets forth below the terms on which
such Quote[s] [is] [are] made:
(i) The principal amount of the Uncommitted Advance is $_____________.
(ii) The Type of Uncommitted Advance is [Fixed Rate] [Floating Rate].
(iii) The Floating Rate Margin in the case of a Floating Rate Advance,
or the Fixed Rate in the case of a Fixed Rate Advance, is ________*.
-------------------
* Clauses (i) through (iii) should be repeated as to each additional offer
being made.
F-1
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this Quote in accordance with Section
2.13(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By
----------------------------
Name:
Title:
F-2
EXHIBIT G
FORM OF ACCEPTANCE
[Date]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Facility B (Five Year) Credit Agreement, dated as of October 23, 1996 (as
amended, modified or supplemented from time to time, the "Credit Agreement")
among the undersigned, certain Lenders parties thereto, and Citibank, N.A., as
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
---------------- ------------------------ ------
G-1
The Borrower's account information for funding purposes is Account ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇. ▇▇▇-▇▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Ref.____.
Very truly yours,
By
-----------------------------
Name:
Title:
G-2
EXHIBIT H
FORM OF OPINION OF GENERAL COUNSEL
[Date]
To each of the Lenders parties
to the Credit Agreement referred
to below and to
Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
I am the General Counsel of The ▇▇▇▇▇▇▇ Works, a Connecticut
corporation (the "Borrower"), and have acted as counsel to the Borrower in
connection with the Facility B (Five Year) Credit Agreement, dated as of
October 23, 1996 (the "Credit Agreement"), among the Borrower, certain Lenders
parties thereto (the "Lenders"), and Citibank, N.A., as Agent for said Lenders.
This opinion is being delivered to you pursuant to Section 3.01(d) of
the Credit Agreement. Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Credit Agreement.
In rendering the opinions set forth herein, I have examined and relied
on originals or copies of the following:
(a) a counterpart executed by the Borrower of the Credit Agreement;
(b) each of the executed Notes and each of the executed Uncommitted
Notes;
(c) copies of the Certificate of Incorporation and By-laws of the
Borrower;
(d) a certified copy of certain resolutions of the Board of Directors
of the Borrower;
H-1
(e) certificates from public officials in the State of Connecticut as
to the good standing of the Borrower in the State of Connecticut; and
(f) such other documents as I have deemed necessary or appropriate as
a basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which I did not independently establish or verify, I have relied upon
written statements and certificates of the Borrower and its officers and other
representatives and of public officials.
Unless otherwise indicated, references in this opinion to the "Loan
Documents" shall mean the documents listed in clauses (a) and (b) above. In
addition, references to (i) "Applicable Laws" shall mean the laws and
regulations of the States of Connecticut and New York and the United States of
America (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System) which are applicable to the
transactions contemplated by the Loan Documents; (ii) the term "Governmental
Authorities" means any Connecticut, New York and federal executive,
legislative, judicial, administrative or regulatory body; (iii) the term
"Applicable Contracts" shall mean the agreements and instruments set forth in
the index of exhibits to the Borrower's Annual Report on Form 10-K for the year
ended , 19 filed with the Securities and Exchange Commission and
(iv) the term "Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, recording or registration with,
any Governmental Authority pursuant to any Applicable Law.
I am admitted to the bar in the States of Connecticut and New York.
This opinion is limited to the laws of the State of Connecticut, the State of
New York and the United States of America to the extent specified herein.
In rendering this opinion, I have assumed, with your consent, that:
(a) the execution, delivery or performance by the Borrower of the Loan
Documents does not and will not conflict with, contravene, violate or
constitute a default under any rule, law or regulation to which the
Borrower is subject (other than applicable laws, orders and decrees as to
which I express my opinion in paragraph 5 herein) or any agreement or
instrument to which the Borrower or the Borrower's property is subject
(except and to the extent that I express my opinion in paragraph 5 herein);
(b) and no authorization, consent or other approval of, notice to
or filing with any court, governmental authority or regulatory body
(other than Governmental
H-2
Approvals as to which I express my opinion in paragraph 6 herein) is
required to authorize or is required in connection with the execution,
delivery or performance by the Borrower of any Loan Document or the
transactions contemplated thereby.
My opinions are also subject to the following assumptions and
qualifications:
(a) the Credit Agreement constitutes the valid and binding obligation
of the Lenders and is enforceable against the Lenders in accordance with
its terms; and
(b) I express no opinion as to the effect on the opinions herein
stated of (i) the compliance or non-compliance of the Lenders with any
state, federal or other laws or regulations applicable to the Lenders or
(ii) the legal or regulatory status or the nature of the business of the
Lenders.
Based upon the foregoing and such investigations that I have deemed
necessary, and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, I am of the opinion that:
1. The Borrower has been duly incorporated, is validly existing and in
good standing under the laws of the State of Connecticut.
2. The Borrower has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under the Loan Documents.
3. The execution and delivery of each Loan Document has been duly
authorized by all requisite corporate action on the part of the Borrower.
4. Each Loan Document has been duly executed and delivered by the
Borrower, constitutes a valid and binding obligation of the Borrower and is
enforceable against the Borrower in accordance with its terms, subject to the
following qualifications:
(i) enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in
equity or at law);
(ii) I express no opinion as to the enforceability of any rights
to indemnification provided for in the Loan Documents which may
violate the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation);
and
H-3
(iii) I express no opinion as to the enforceability of Section
8.05 of the Credit Agreement insofar as this provision purports to
authorize a Person who has purchased a participation in Advances under
the Credit Agreement to set off, appropriate or apply any deposit or
property or indebtedness of the Borrower against any obligation of the
Borrower.
5. Neither the execution, delivery or performance by the Borrower of
the Loan Documents nor the compliance by the Borrower with the terms and
provisions thereof will conflict with, contravene, violate or constitute a
default under (i) any provision of any Applicable Contract or, to the best of
my knowledge, after due investigation, any other agreement or instrument to
which the Borrower or the Borrower's property is subject, (ii) any provision of
any Applicable Law, (iii) to the best of my knowledge, after due investigation,
any judicial or administrative order or decree of any Governmental Authority or
(iv) its Certificate of Incorporation and By-laws. As used in this paragraph,
"due investigation" means solely that, as to agreements and instruments, I have
interviewed the officers of the Borrower responsible for its financing
activities, and, as to orders and decrees, I have interviewed the lawyers under
my supervision.
6. Based on my review of Applicable Laws, but without my having made
any special investigation concerning any other law, rule or regulation, no
Governmental Approval which has not been obtained or taken and is not in full
force and effect, is required to authorize or is required in connection with
the execution, delivery or performance of any of the Loan Documents by the
Borrower.
7. The Borrower is not required to be registered under the Investment
Company Act of 1940, as amended.
This opinion is being furnished only to you and is solely for your
benefit in connection with the transactions contemplated by the Loan Documents
and is not to be used, circulated, quoted, relied upon or otherwise referred to
for any other purpose without my prior written consent.
Very truly yours,
H-4
EXHIBIT I
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of October 23, 1996
(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 agent for the Lenders
(the "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 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
I-1
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 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) confirms that it is an Eligible Assignee; (iv) appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) 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; (vi) 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 (vii) 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 Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the 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 Agent, from and after the
Effective Date, the 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
I-2
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:
By
----------------------------
Name:
Title:
I-3
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 Date(1): _____________, 199_
[NAME OF ASSIGNOR], as Assignor
By__________________________
Name:
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By__________________________
Name:
--------------
(1) This date should be no earlier than five Business Days after the delivery
of this As signment and Acceptance to the Agent.
I-4
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ______ day
of _______________, 199_
Citibank, N.A., as Agent
By___________________________
Name:
Title:
[Approved this __________ day
of _______________, 199_
The ▇▇▇▇▇▇▇ Works
By___________________________
Name:
Title:
I-5