CREDIT AGREEMENT
Dated as of October 21, 1998
among
THE ▇▇▇▇▇▇▇ WORKS
as Borrower
THE LENDERS REFERRED TO HEREIN,
as Lenders
and
CITIBANK, N.A.
as Agent
CITICORP SECURITIES, INC.
Arranger
CREDIT AGREEMENT, dated as of October 21, 1998, among THE ▇▇▇▇▇▇▇ WORKS
(the "Borrower"); each of the lenders listed on the signature pages hereof under
the heading "LENDERS" (the "Lenders"); and CITIBANK, N.A., as Agent for the
Lenders (together with its successors in such capacity, the "Agent").
The Borrower, certain lenders and the Agent are parties to an Amended and
Restated Facility A (364-Day) Credit Agreement dated as of October 23, 1996 (as
in effect immediately prior to the Effective Date (as defined below), the
"Existing Credit Agreement"), providing, subject to the terms and conditions
thereof, for the making of advances by said lenders to the Borrower up to an
aggregate principal amount at any one time outstanding not exceeding
$150,000,000.
The Borrower proposes to terminate the Commitments under the Existing
Credit Agreement, and the Borrower, the Lenders and the Agent wish to enter into
this Agreement in order to provide for Commitments in an aggregate amount of
$250,000,000 and to incorporate by reference the terms and conditions of the
Existing Credit Agreement with the modifications set forth below; and
accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms used but not otherwise defined herein have
the meanings given them in the Existing Credit Agreement.
Section 2. The Commitments. The parties hereto agree that effective on the
Effective Date (1) the Lenders agree to make Committed Advances on and subject
to the terms and conditions of the Existing Credit Agreement as modified hereby,
each Lender to have the Commitment set forth in Schedule I hereto opposite the
name of such Lender, (2) the terms and conditions of the Existing Credit
Agreement shall be modified as provided in Section 3 hereof (such terms and
conditions, as so modified, being herein called the "Amended Terms"), and (3)
the Amended Terms shall be deemed incorporated herein by reference and made a
part hereof and shall be deemed to continue in effect without regard to any
amendment or termination after the Effective Date; and without limiting the
foregoing, the Borrower agrees to perform, observe and comply with the Amended
Terms, and all of the terms, conditions, covenants, agreements, limitations,
schedules, exhibits and other provisions constituting the Amended Terms shall be
given effect as if the Existing Credit Agreement were amended and restated in
its entirety hereby with the modifications herein provided.
Section 3. Amendments. Effective on the Effective Date, (i) the Borrower
confirms that Commitments under the Existing Credit Agreement are terminated and
(ii) the parties agree that the terms and conditions of the Existing Credit
Agreement are hereby modified as set forth below:
-2-
A. References in the Existing Credit Agreement to "this Agreement" and
"Facility A (364 Day) Credit Agreement dated as of October 23, 1996" and words
of similar import (including indirect references) shall be deemed to be
references to this Agreement.
B. Section 1.01 of the Existing Credit Agreement is hereby modified by
changing the following definitions to read in their entirety as follows:
"Applicable Eurodollar Margin" means, with respect to any Interest
Period for each Eurodollar Rate Advance, (i) .1900% 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 Baa1 or higher by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), (ii) .2300% 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) .2500% if on such date clauses (i) and (ii) are
inapplicable (including if such Long-Term Indebtedness is no longer rated
by either agency); provided, however, that if the maturity of any
Eurodollar Rate Advance has been extended pursuant to Section 2.07(c), the
Applicable Eurodollar Margin shall mean, with respect to any Interest
Period for each Eurodollar Rate Advance from and after the Termination
Date, (i) .2500% if on the Termination Date or 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 and Baa1 or higher by Moody's,
(ii) .3000% 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) .3500% if on such date
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 .0600% 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 .0700% 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 Mood s, and (iii) .1000% if on such
date clauses (i) and (ii) are inapplicable (including if such Long-Term
Indebtedness is no longer rated by either agency).
"Commitment" means, with respect to any Lender, the amount specified
opposite such Lender's name on Schedule I hereto or, if such Lender has
-3-
entered into any Assignment and Acceptance or New Commitment 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) or increased pursuant to Section 2.01(c).
"Termination Date" means the earlier of (a) October 20, 1999 or (b)
the date of termination in whole of the Commitments pursuant to Section
2.01(b) or 6.01.
C. Section 2.03(a) of the Existing Credit Agreement is hereby modified to
read in its entirety as follows:
"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
Lender and, in the case of each Person which becomes a Lender pursuant to
Section 8.07, from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender until the Termination Date
at the Applicable Facility Fee Rate, payable quarterly in arrears on the
last day of each March, June, September and December during the term hereof
and on the Termination Date. All computations of the facility fee shall be
based on a year of 365 or 366 days, as the case may be."
D. Schedule I hereto shall be deemed attached to and made a part of the
Existing Credit Agreement as Schedule I thereto.
Section 4. Representations and Warranties. The Borrower represents and
warrants to the Lenders as of the Effective Date that (i) the representations
and warranties set forth in Section 4.01 of the Existing Credit Agreement are
true and correct on and as of the Effective Date as though made on and as of the
Effective Date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date) and as if
each reference in said Section 4.01 to "this Agreement" included reference to
this Agreement and as if each reference in said Section 4.01 to "December 30,
1995" were instead a reference to "January 3, 1998" and (ii) no event has
occurred and is continuing that constitutes a Default or Event of Default (and
the parties agree that breach of any of said representations and warranties
shall constitute an Event of Default under Section 6.01(b) of the Existing
Credit Agreement as incorporated herein).
Section 5. Conditions to Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") on which the Agent shall notify the
Borrower that the following conditions precedent have been satisfied (and the
Agent shall promptly notify the Banks of the occurrence of the Effective Date):
-4-
(a) Documents. The Agent shall have received the following documents (with,
except in the case of clause (2), sufficient copies for each Lender), each of
which shall be satisfactory to the Agent in form and substance:
(1) Execution by All Parties. Counterparts of this Agreement, duly
executed and delivered by each of the parties hereto.
(2) Notes. Committed Notes and Uncommitted Notes to the order of the
Lenders (and each of the Existing Lenders that is a party hereto agrees
that it will return to the Borrower such Lender's Notes (as defined in the
Existing Credit Agreement) issued to such Lender under the Existing Credit
Agreement on or as promptly as practical after the Effective Date).
(3) Authority and Approvals. Certified copies of the resolutions of
the Board of Directors of the Borrower (or equivalent documents)
authorizing and approving this Agreement and the Notes, authorizing
Borrowings under this Agreement in an aggregate principal amount up to but
not exceeding $250,000,000 at any one time outstanding, and certified
copies of all documents evidencing other necessary action (corporate,
partnership or otherwise) and governmental approvals, if any, with respect
to this Agreement and the Notes.
(4) Secretary's or Assistant Secretary's Certificate. A certificate of
the Secretary or an Assistant Secretary of the Borrower, dated the
Effective Date, certifying the names and true signatures of the officers of
the Borrower authorized to execute and deliver this Agreement and the Notes
and the other documents to be delivered hereunder.
(5) Opinion of Borrower's Counsel. A favorable opinion of counsel to
the Borrower, in substantially the form of Exhibit A hereto, and as to such
other matters as the Agent or any Lender acting through the Agent may
reasonably request.
(6) Closing Certificate. A certificate of a senior financial officer
of the Borrower, dated the Effective Date, certifying the representations
and warranties set forth in Section 4 hereof are true on such date as if
made on and as of such date.
(b) Approvals. The Agent shall have received evidence satisfactory to it of
receipt of all third party consents and approvals necessary in connection with
this Agreement (without the imposition of any conditions except those that are
acceptable to the Lenders) and that the same remain in effect.
-5-
(c) Expenses. The Borrower shall have paid all accrued fees and expenses of
the Agent (including the reasonable fees and expenses of counsel to the Agent in
connection with this Agreement).
(d) Fees. The Agent shall have received evidence that the Borrower shall
have paid in full all facility fees payable to the Existing Lenders under the
Existing Credit Agreement accrued to the Effective Date.
(e) Other Items. The Agent shall have received such other approvals,
opinions and documents relating to this Agreement and the transactions
contemplated hereby as any Lender may, through the Agent, reasonably request.
Section 6. Miscellaneous. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement be duly
executed and delivered as of the day and year first above written.
BORROWER
THE ▇▇▇▇▇▇▇ WORKS
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
AGENT
CITIBANK, N.A.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
-7-
LENDERS
CITIBANK, N.A.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
WACHOVIA BANK, N.A.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANQUE NATIONALE DE PARIS
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
By ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
BARCLAYS BANK PLC
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-8-
FLEET NATIONAL BANK
By ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: SVP
ROYAL BANK OF CANADA
By ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Manager
Corporate Banking
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
MELLON BANK, N.A.
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
BANKBOSTON, N.A.
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
-9-
THE NORTHERN TRUST COMPANY
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior VP
BANKERS TRUST COMPANY
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
Lenders and Commitments
Lenders Commitment
CITIBANK, N.A. $30,000,000.00
BANQUE NATIONALE DE PARIS $27,500,000.00
FLEET NATIONAL BANK $27,500,000.00
MELLON BANK, N.A. $27,500,000.00
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK $27,500,000.00
WACHOVIA BANK, N.A. $27,500,000.00
BANKERS TRUST COMPANY $25,000,000.00
BARCLAYS BANK PLC $20,000,000.00
ROYAL BANK OF CANADA $17,500,000.00
BANKBOSTON, N.A. $10,000,000.00
THE NORTHERN TRUST COMPANY $10,000,000.00
EXHIBIT A
[FORM OF OPINION OF GENERAL COUNSEL]
October 21, 1998
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 Credit Agreement, dated as of October 21, 1998 (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 5(a)(5) 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;
(c) copies of the Certificate of Incorporation and Bylaws of the
Borrower;
(d) a certified copy of certain resolutions of the Board of Directors
of the Borrower;
(e) certificates from public officials in the State of Connecticut as
to the good standing of the Borrower in the State of Connecticut; and
(f) such other documents as I have deemed necessary or appropriate as
a basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which I did not independently establish or verify, I have relied upon
written statements and certificates of the Borrower and its officers and other
representatives and of public officials.
Unless otherwise indicated, references in this opinion to the "Loan
Documents" shall mean the documents listed in clauses (a) and (b) above. In
addition, references to (i) "Applicable Laws" shall mean the laws and
regulations of the States of Connecticut and New York and the United States of
America (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System) which are applicable to the
transactions contemplated by the Loan Documents; (ii) the term "Governmental
Authorities" means any Connecticut, New York and federal executive, legislative,
judicial, administrative or regulatory body; (iii) the term "Applicable
Contracts" shall mean the agreements and instruments set forth in the index of
exhibits to the Borrower's Annual Report on Form 10K 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
2
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 paragrap 5 herein);
(b) and no authorization, consent or other approval of, notice to or filing
with any court, governmental authority or regulatory body (other than
Governmental Approvals as to which I express my opinion in paragraph 6
herein) is required to authorize or is required in connection with the
execution, delivery or performance by the Borrower of any Loan Document or
the transactions contemplated thereby.
My opinions are also subject to the following assumptions and
qualifications:
(a) the Credit Agreement constitutes the valid 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 noncompliance 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
3
is enforceable against the Borrower in accordance with its terms, subject
to the following qualifications:
(i) enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law);
(ii) I express no opinion as to the enforceability of any rights to
indemnification provided for in the Loan Documents which may violate the public
policy underlying any law, rule or regulation (including any federal or state
securities law, rule or regulation); and
(iii) I express no opinion as to the enforceability of Section 8.05 of
the Existing Credit Agreement as incorporated in 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 the Loan Documents by the Borrower.
4
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,