1
Exhibit 10(l)
EXECUTION COPY
________________________________________________________________________________
$5,500,000,000
CREDIT AGREEMENT
among
WESTINGHOUSE ELECTRIC CORPORATION,
as Borrower
THE LENDERS NAMED HEREIN,
NATIONSBANK, N.A. and THE TORONTO-DOMINION BANK,
as Syndication Agents
THE CHASE MANHATTAN BANK,
as Documentation Agent
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
Dated as of August 29, 1996
________________________________________________________________________________
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II.
THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.2. Revolving Credit Loans; Competitive Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.3. Competitive Bid Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.4. Revolving Credit Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.5. Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.6. Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.7. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.8. Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.9. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.11. Default Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Alternate Rate of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.13. Termination and Optional Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.14. Optional Prepayments of Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.15. Reserve Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.16. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.18. Sharing of Setoffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.19. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.20. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.21. Termination or Assignment of Commitments Under Certain Circumstances . . . . . . . . . . . . . . . . . 36
ARTICLE III.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . 37
SECTION 3.1. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.2. Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.3. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.4. No Breach, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.5. Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.6. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.7. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.9. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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SECTION 3.10. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.11. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.12. Material Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.13. No Material Misstatements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.14. Ownership of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.15. Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.16. FCC Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING . . . . . . . . . . . . . . . . . 40
SECTION 4.1. Initial Credit Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.2. All Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V.
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.1. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.2. Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.4. Prohibition of Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.5. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.6. Limitation on Subsidiary Indebtedness; Termination of Existing Infinity Credit Agreement . . . . . . . 48
SECTION 5.7. Consolidated Leverage Ratio, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.8. Consolidated Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.9. Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.10. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.11. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.12. Limitation on Negative Pledge Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VI.
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII.
THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.2. Survival of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.3. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.4. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.5. Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.6. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.7. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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SECTION 8.8. Waivers; Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.9. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.10. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.11. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.13. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.14. Jurisdiction; Consent to Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.15. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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EXHIBITS
Exhibit A Administrative Questionnaire
Exhibit B-1 Form of Competitive Bid Request
Exhibit B-2 Form of Notice of Competitive Bid Request
Exhibit B-3 Form of Competitive Bid
Exhibit B-4 Form of Revolving Credit Borrowing Request
Exhibit B-5 Form of Swingline Borrowing Request
Exhibit B-6 Form of Notice of Designated Letter of Credit
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E-1 Form of Opinion of General Counsel
Exhibit E-2 Form of Opinion of Assistant/Associate General Counsel
Exhibit E-3 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit F Form of Closing Certificate
Exhibit G Form of Issuing Lender Agreement
SCHEDULES
Schedule 1.1 Commitments; Addresses for Notices
Schedule 3.12 Material Subsidiaries
Schedule 5.5(n) Certain CBS Assets
Schedule 5.6 Existing CBS Indebtedness
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CREDIT AGREEMENT entered into as of August 29, 1996, among WESTINGHOUSE
ELECTRIC CORPORATION, a Pennsylvania corporation ("Westinghouse"); the lenders
whose names appear on the signature pages hereto or who subsequently become
parties hereto as provided herein (the "Lenders"); NATIONSBANK, N.A.
("NationsBank") and THE TORONTO-DOMINION BANK ("Toronto Dominion"), as
syndication agents for the Lenders (in such capacity, the "Syndication
Agents"); THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
as documentation agent for the Lenders; and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, a New York banking corporation ("Xxxxxx"), as administrative agent
for the Lenders.
W I T N E S S E T H :
WHEREAS, Westinghouse has requested the Lenders to provide extensions of
credit pursuant to this Agreement to be used to refinance indebtedness under
the Existing Westinghouse Credit Agreement (as herein defined), to pay fees and
expenses relating to the Infinity Merger (as herein defined), to refinance
certain indebtedness of Infinity (as herein defined) and for general corporate
purposes, which extensions of credit shall enable Westinghouse to (a) borrow
loans on a revolving credit basis on and after the Closing Date (as herein
defined) and prior to the Revolving Credit Maturity Date (as herein defined),
(b) request the issuance of Letters of Credit (as herein defined) and (c)
invite the Lenders to bid on an uncommitted basis on short-term borrowings by
Westinghouse, in an aggregate principal amount for all such extensions of
credit not in excess of $5,500,000,000; and
WHEREAS, the Lenders are willing to extend credit to Westinghouse on the
terms and subject to the conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, Westinghouse, the Lenders and the Agents (as herein defined)
hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Loan" shall mean (a) any Revolving Credit Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II and (b) any ABR Swingline Loan.
"ABR Revolving Credit Loan" shall mean any Revolving Credit Loan which is an
ABR Loan.
"ABR Swingline Exposures" shall mean at any time the aggregate principal
amount at such time of the outstanding ABR Swingline Loans. The ABR Swingline
Exposure of any Lender at any time shall mean its Revolving Credit Percentage
of the aggregate ABR Swingline Exposures at such time.
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"ABR Swingline Loan" shall have the meaning assigned to such term in Section
2.6(a).
"Absolute Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal rounded to
no more than four decimal places) specified by the Lender making such Loan in
its Competitive Bid.
"Adjusted Applicable Commitment Fee Rate" shall mean, at any time, 50% of
the Applicable Commitment Fee Rate then in effect.
"Administrative Agent" shall mean Xxxxxx, together with its affiliates, as
an arranger of the Commitments and as the administrative agent for the Lenders
under this Agreement, and any successor thereto pursuant to Article VII.
"Administrative Agent Fee Letter" shall mean the Fee Letter with respect to
this Agreement between Westinghouse and the Administrative Agent, as amended,
supplemented or otherwise modified from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to such term
in Section 2.9(c).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in
the form of Exhibit A hereto.
"Affiliate" shall mean, as to Westinghouse, any Person which directly or
indirectly controls, is under common control with or is controlled by
Westinghouse. As used in this definition, "control" (including, with
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 10% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 10% or more of the partnership or
other ownership interests of any other Person (other than as a limited partner
of such other Person) will be deemed to control such corporation or other
Person. Notwithstanding the foregoing, (a) no individual shall be deemed to be
an Affiliate of Westinghouse solely by reason of his or her being an officer,
director or employee of Westinghouse or any of its Subsidiaries, (b)
Westinghouse and its Subsidiaries shall not be deemed to be Affiliates of each
other and (c) no Person of which Westinghouse or any of its Subsidiaries
acquires or has acquired control in connection with or as a consequence of any
debt or equity financing provided to such Person in the ordinary course of
business of WFSI, any of its Subsidiaries, Financial Services or WCI shall be
deemed an Affiliate of Westinghouse.
"Agents" shall mean the collective reference to the Administrative Agent,
the Documentation Agent and the Syndication Agents.
"Aggregate LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time and
(b) the aggregate amount which has been drawn under Letters of Credit but for
which the applicable Issuing Lender or the Lenders, as the case may be, have
not been reimbursed by Westinghouse at such time.
"Agreement" shall mean this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
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"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by the
Lender serving as the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding 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 the day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be the Prime Rate until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Commitment Fee Rate" shall mean the "Applicable Commitment Fee
Rate" determined in accordance with the Pricing Grid set forth in Annex I
hereto.
"Applicable Eurodollar Margin" shall mean the "Applicable Eurodollar Margin"
determined in accordance with the Pricing Grid set forth in Annex I hereto.
"Applicable LC Fee Rate" shall mean (a) with respect to Financial Letters of
Credit, the "Applicable Financial LC Fee Rate" determined in accordance with
the Pricing Grid set forth in Annex I hereto and (b) with respect to
Non-Financial Letters of Credit, the "Applicable Non-Financial LC Fee Rate"
determined in accordance with the Pricing Grid set forth in Annex I hereto.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit C.
"Base Commitment" shall mean, with respect to each Lender, a portion of such
Lender's Commitment equal to such Lender's Revolving Credit Percentage of an
amount equal to (a) $4,000,000,000 minus (b) the aggregate amount of optional
reductions in the Base Commitments (if any) made pursuant to Section 2.13.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in Dollar deposits in the London
interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real
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or personal property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"CBS" shall mean CBS Inc., a New York corporation.
"Change of Control" shall mean that any person or group of persons (within
the meaning of Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the SEC relating
to such sections) shall have acquired beneficial ownership (within the meaning
of Rules 13d-3 and 13d-5 promulgated by the SEC pursuant to the Exchange Act)
of 30% or more of the outstanding shares of voting stock of Westinghouse.
"Chase" shall have the meaning assigned to such term in the preamble to this
Agreement.
"Closing Certificate" shall mean a certificate, substantially in the form of
Exhibit F, delivered by Westinghouse pursuant to Section 4.1(b).
"Closing Date" shall have the meaning assigned to such term in Section 4.1.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Credit Loans pursuant to Section 2.1, to make or
refund ABR Swingline Loans pursuant to Section 2.6 and to issue or participate
in Letters of Credit pursuant to Section 2.7, as set forth on Schedule 1.1, as
such Lender's Commitment may be permanently terminated or reduced from time to
time pursuant to Section 2.13 or changed pursuant to Section 8.4.
"Commitment Fee Calculation Amount" shall mean, as to any Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Utilizable
Commitment over (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender's
LC Exposure at such time and (iii) in the case of each Swingline Lender, the
aggregate principal amount of all Swingline Loans made by such Swingline Lender
then outstanding.
"Commitment Fees" shall mean all fees payable pursuant to Section 2.9(a).
"Communications Act" shall mean the Communications Act of 1934, as amended.
"Competitive Bid" shall mean an offer to make a Competitive Loan pursuant to
Section 2.3.
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"Competitive Bid Rate" shall mean, as to any Competitive Bid made pursuant
to Section 2.3(b), (a) in the case of a Eurodollar Competitive Loan, the
Margin, and (b) in the case of an Absolute Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section 2.3
in the form of Exhibit B-1.
"Competitive Loan" shall mean a Loan from a Lender to Westinghouse pursuant
to the bidding procedure described in Section 2.3. Each Competitive Loan shall
be a Eurodollar Competitive Loan or an Absolute Rate Loan.
"Compliance Certificate" shall have the meaning assigned to such term in
Section 5.1.
"Confidential Information" shall have the meaning assigned to such term in
Section 8.15(a).
"Confidential Information Memorandum" shall mean the Information Memorandum
dated August 1996 and furnished to the Lenders.
"Confidentiality Agreement" shall mean a confidentiality agreement
substantially in the form of Exhibit D, with such changes as Westinghouse may
approve.
"Consolidated Coverage Ratio" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated EBITDA" shall mean, with respect to Westinghouse and its
Consolidated Subsidiaries for any period, Consolidated Net Income for such
period (less any items of non-cash income of Westinghouse and its Consolidated
Subsidiaries included in such Consolidated Net Income) plus, to the extent
deducted in computing such Consolidated Net Income, (a) Consolidated Interest
Expense, (b) provision for Federal, state and local income taxes, (c)
depreciation and amortization expense (including write-offs and write-downs of
amortizable and depreciable items but excluding amortization relating to
programming rights) and (d) other non-cash items (including (i) provisions for
losses and additions to valuation allowances, (ii) provisions for
restructuring, litigation and environmental reserves and losses on the
Disposition of businesses and (iii) pension settlement charges, but excluding
non-cash items attributable to non-Wholly Owned Subsidiaries to the extent the
effect of including such items would be to include in Consolidated EBITDA
amounts excluded from Consolidated Net Income pursuant to clause (III) of the
definition thereof) and minus cash payments made during such period in respect
of non-cash charges taken during any previous period (excluding (x) cash
payments in respect of non-cash charges taken prior to the Closing Date and (y)
up to $100,000,000 of cash payments made on or prior to June 30, 1997 in
respect of employee separation costs which relate to restructuring charges
taken on or prior to March 31, 1997).
"Consolidated Interest Expense" shall mean, for any period, the gross
interest expense of Westinghouse and its Consolidated Subsidiaries (excluding
the amortization of deferred financing charges and the gross interest expense
of the Discontinued Operations) for such period, computed and consolidated in
accordance with GAAP.
"Consolidated Leverage Ratio" shall mean, as of the last day of any period,
the ratio of Consolidated Total Funded Indebtedness at such date to
Consolidated EBITDA for such period.
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"Consolidated Net Income" shall mean, with respect to Westinghouse and its
Consolidated Subsidiaries for any period, the aggregate net income (or net
deficit) of such Persons (excluding that related to the Discontinued
Operations) minus gains on the sale of assets (other than (a) gains on sales of
inventory sold in the ordinary course of business and (b) gains on sales of
other assets if such gains are less than $10,000,000 individually and less than
$50,000,000 in the aggregate during such period) and extraordinary gains,
computed and consolidated in accordance with GAAP; provided, that, except as
otherwise provided in Section 1.2(c), there shall be excluded from the
foregoing calculation (I) the income of any other Person accrued prior to the
date it becomes a Consolidated Subsidiary of Westinghouse or is merged into or
consolidated with Westinghouse or any of its Consolidated Subsidiaries, (II)
the income of any other Person (other than a Consolidated Subsidiary of
Westinghouse) in which Westinghouse or any of its Consolidated Subsidiaries has
an ownership interest, except to the extent that any such income is actually
received by Westinghouse or such Consolidated Subsidiary in the form of
dividends or similar distributions, (III) the Undistributed Income of any
Consolidated Subsidiary (other than a Wholly Owned Subsidiary), except to the
extent of Westinghouse's direct or indirect percentage equity interest in such
Consolidated Subsidiary, and (IV) the Undistributed Income of any Subsidiary (a
"Limited Subsidiary") to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation or requirement of law
applicable to such Subsidiary. For the purposes of this definition, income
shall be treated as "Undistributed Income" unless it has been distributed to
Westinghouse or a Wholly Owned Consolidated Subsidiary of Westinghouse which is
not a Limited Subsidiary.
"Consolidated Net Worth" shall mean the total shareholders' equity of
Westinghouse and its Consolidated Subsidiaries determined without giving effect
to any changes in such total shareholders' equity resulting from (a) changes in
pension liabilities after the Net Worth Commencement Date pursuant to SFAS 87
and SFAS 88, (b) non-cash losses on the Disposition of businesses after the Net
Worth Commencement Date, (c) changes made in accordance with GAAP to the
amortization periods of separately identified intangible assets and goodwill
attributable to the acquisition of CBS or Infinity, as the case may be, from
the 40-year amortization utilized in the projections contained in the
Confidential Information Memorandum or (d) provisions for restructuring
reserves (but not environmental or litigation reserves) established after the
Net Worth Commencement Date and not exceeding $100,000,000 in the aggregate,
net of cash payments made in respect of such reserves, all net of tax effect
and computed and consolidated in accordance with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be consolidated with the financial
statements of such Person in accordance with GAAP.
"Consolidated Total Funded Indebtedness" shall mean, with respect to
Westinghouse and its Consolidated Subsidiaries at any date, the sum at such
date of (a) all Indebtedness for Borrowed Money (including commercial paper and
unpaid reimbursement obligations in respect of drawn letters of credit but
otherwise excluding letters of credit), (b) all indebtedness for the deferred
purchase price of Property or services (other than trade accounts payable and
accruals in the ordinary course of business), (c) all Capital Lease
Obligations, (d) the amount of any Indebtedness for Borrowed Money secured by
receivables sold by Westinghouse and its Consolidated Subsidiaries pursuant to
a program established for the purpose of financing such receivables, and (e)
all Guarantees of indebtedness of the type referred to in any of clauses (a)
through (d) above (other than Guarantees of any such indebtedness of
Westinghouse and its Consolidated Subsidiaries); provided, that in no event
shall indebtedness attributable to Discontinued Operations be included in
Consolidated Total Funded Indebtedness.
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"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit hereunder (including the designation of a Designated Letter of
Credit as a "Letter of Credit" hereunder). It is understood that conversions
and continuations pursuant to Section 2.8 do not constitute "Credit Events".
"Debt Rating" shall mean the rating applicable to Westinghouse's senior,
unsecured, non-credit-enhanced long-term indebtedness for borrowed money, as
assigned by either Rating Agency.
"Default" shall mean any event or condition which upon notice, lapse of time
or both would constitute an Event of Default.
"Designated Letters of Credit" shall mean each letter of credit issued by an
Issuing Lender that (a) is not a Letter of Credit hereunder at the time of its
issuance and (b) is designated on or after the Closing Date by Westinghouse,
with the consent of such Issuing Lender, as a "Letter of Credit" hereunder by
written notice to the Administrative Agent in the form of Exhibit B-6.
"Discontinued Operations" shall mean the discontinued operations of
Westinghouse and its Subsidiaries as set forth in the 1996 First Quarter
Financial Statements.
"Disposition" shall mean, with respect to any Property, any sale, lease,
assignment, conveyance, transfer or other disposition thereof; and the terms
"Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent" shall mean Chase, together with its affiliates, as an
arranger of the Commitments and as the documentation agent for the Lenders
under this Agreement.
"Dollars" or "$" shall mean lawful money of the United States of America.
"Environmental Laws" shall mean any and all Federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean, with respect to Westinghouse, any trade or
business (whether or not incorporated) that is a member of a group of which
Westinghouse is a member and which is treated as a single employer under
Section 414 of the Code.
"Eurodollar Competitive Loan" shall mean any Competitive Loan which is a
Eurodollar Loan.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.
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"Eurodollar Rate" shall mean, with respect to an Interest Period pertaining
to any Eurodollar Loan, the rate of interest determined on the basis of the
rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate Screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate Screen (or otherwise on the Telerate
Service), the "Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be agreed
upon by the Administrative Agent and Westinghouse or, in the absence of such
agreement, the "Eurodollar Rate" shall instead be the interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the average of
the rates at which Dollar deposits approximately equal in principal amount to
(a) in the case of a Eurodollar Tranche, the portion of such Eurodollar Tranche
of the Lender serving as Administrative Agent and (b) in the case of a
Eurodollar Competitive Loan, a principal amount that would have been the
portion of such Loan of the Lender serving as the Administrative Agent had such
Loan been a Eurodollar Revolving Credit Loan, and for a maturity comparable to
such Interest Period, are offered by the principal London offices of the
Reference Banks (or, if any Reference Bank does not at the time maintain a
London office, the principal London office of any affiliate of such Reference
Bank) for immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Revolving Credit Loan" shall mean any Revolving Credit Loan
which is a Eurodollar Loan.
"Eurodollar Tranche" shall mean the collective reference to Eurodollar
Revolving Credit Loans made by the Lenders, the then current Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Event of Default" shall have the meaning assigned to such term in Article
VI, provided that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"Exchange Act Report" shall have the meaning assigned to such term in
Section 3.3.
"Excluded Indebtedness" shall mean (a) Indebtedness of any Person which is
acquired by Westinghouse or any of its Subsidiaries after the Closing Date,
which Indebtedness was outstanding prior to the date of acquisition of such
Person and was not created in anticipation thereof, (b) any Indebtedness owing
by Westinghouse or any of its Subsidiaries to Westinghouse or any of its
Subsidiaries (including any intercompany Indebtedness created by the
declaration of a note payable dividend by any Subsidiary to Westinghouse or any
of its other Subsidiaries) and (c) Specified Section 5.5(o) Indebtedness.
"Existing Infinity Credit Agreement" shall mean the Third Amended and
Restated Credit Agreement dated as of June 13, 1996 among Infinity, the lenders
party thereto and Chase, as administrative agent, together with the Loan
Documents referred to therein.
"Existing Westinghouse Credit Agreement" shall mean the Revolving Credit
Agreement dated as of September 12, 1995 among Westinghouse, the lenders party
thereto, Xxxxxx, as documentation agent, and Chase, as administrative agent.
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"Facility Exposure" shall mean, with respect to any Lender, the sum of (a)
the Outstanding Revolving Extensions of Credit of such Lender, (b) the
aggregate outstanding principal amount of any Competitive Loans made by such
Lender and (c) in the case of a Swingline Lender, the aggregate outstanding
principal amount of any Quoted Swingline Loans made by such Swingline Lender.
"FCC" shall mean the Federal Communications Commission.
"FCC Licenses" shall mean, with respect to Westinghouse or any of its
Subsidiaries, any radio, television or other license, permit, certificate of
compliance or authorization issued by the FCC and required for the operation of
its respective radio and television broadcast stations.
"Federal Funds Effective Rate" shall have the meaning assigned to such term
in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees, the
Issuing Lender Fees and the LC Fees.
"Financial Covenants" shall have the meaning assigned to such term in
Section 1.2(b).
"Financial Letter of Credit" shall mean any Letter of Credit that, as
determined by the Administrative Agent, (a) supports a financial obligation and
(b) qualifies for the 100% credit conversion factor under the applicable Bank
for International Settlements guidelines.
"Financial Officer" of any corporation shall mean its chief financial
officer, its Vice President and Treasurer or its Vice President and Chief
Accounting Officer or, in each case, any comparable officer or any Person
designated by any such officer.
"Financial Services" shall mean those operations designated as the Financial
Services portion of Discontinued Operations in the 1996 First Quarter Financial
Statements.
"Foreign Currency" shall mean any currency other than Dollars which is
readily convertible by the relevant Issuing Lender into Dollars.
"Foreign Exchange Rate" shall mean, with respect to any Foreign Currency on
a particular date, the rate at which such Foreign Currency may be exchanged
into Dollars, determined by reference to the selling rate in respect of such
Foreign Currency published in the "Wall Street Journal" on the relevant date of
determination. In the event that such rate is not, or ceases to be, so
published by the "Wall Street Journal", the "Foreign Exchange Rate" with
respect to such Foreign Currency shall be determined by reference to such other
publicly available source for determining exchange rates as may be agreed upon
by the Administrative Agent and Westinghouse or, in the absence of such
agreement, such "Foreign Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its foreign
currency exchange operations in respect of such Foreign Currency are then being
conducted, at or about 12:00 noon, local time, at such date for the purchase of
Dollars with such Foreign Currency, for delivery two banking days later.
"FSC" shall mean a subsidiary of Westinghouse or any of its Subsidiaries
which is a FSC as defined in Section 922 of the Code, or in any successor
provision, and which is used solely for the purpose of a single lease project
or lease transaction or related lease projects or lease transactions and is not
related to Property predominantly manufactured by Westinghouse or any of its
Subsidiaries.
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"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis (but subject to changes approved by Westinghouse's independent
public accountants).
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or entered into with the purpose of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (b) to purchase Property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit,
in either case in the ordinary course of business.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to Property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the deferred purchase
price of Property or services, (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on Property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person and (i) all obligations of such Person as an account
party in respect of outstanding letters of credit (whether or not drawn) and
bankers' acceptances; provided, however, that Indebtedness shall not include
(i) trade accounts payable arising in the ordinary course of business, (ii)
deferred compensation, (iii) any Indebtedness of such Person (other than any
such Person that is a FSC) to the extent (A) such Indebtedness does not appear
on the financial statements of such Person, (B) such Indebtedness is recourse
only to certain assets of such Person and (C) the assets to which such
Indebtedness is recourse only appear on the financial statements of such Person
net of such Indebtedness or (iv) obligations (not constituting obligations for
borrowed money) specifically with respect to the production, distribution and
acquisition of television and other programming rights or talent; and provided
further that the amount of any Indebtedness described in clause (f) above shall
be the lower of the amount of the obligation or the fair market value of the
collateral securing such obligation. The Indebtedness of any Person shall
include the Indebtedness of any partnership in which such Person is a general
partner, which Indebtedness is recourse to such general partner.
"Indebtedness for Borrowed Money" shall mean Indebtedness of the type
described in clause (a) or (b) of the definition of "Indebtedness" and any
Guarantee thereof.
"Infinity" shall mean Infinity Broadcasting Corporation, a Delaware
corporation.
"Infinity Merger" shall mean the merger of Infinity with and into a
Subsidiary of Westinghouse.
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"Infinity Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of June 20, 1996, among Westinghouse, R Acquisition Corp. and
Infinity, as amended, supplemented or otherwise modified from time to time.
"Infinity Merger Date" shall mean the date of consummation of the Infinity
Merger.
"Information" shall have the meaning assigned to such term in Section 3.13.
"Intellectual Property" shall mean the collective reference to patents,
trademarks (registered or unregistered), trade names, service marks, assumed
names, copyrights, technology, know-how and processes.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar Loan
or Absolute Rate Loan, the last day of the Interest Period applicable thereto
and, in the case of a Eurodollar Loan with an Interest Period of more than
three months' duration or an Absolute Rate Loan with an Interest Period of more
than 90 days' duration, each day that would have been an Interest Payment Date
for such Loan had successive Interest Periods of three months' duration or 90
days' duration, as the case may be, been applicable to such Loan and, in
addition, the date of any conversion of any Eurodollar Revolving Credit Loan to
an ABR Loan, the date of repayment or prepayment of any Eurodollar Loan and the
applicable Maturity Date; (b) with respect to any ABR Loan (other than an ABR
Swingline Loan which is not an Unrefunded Swingline Loan), the last day of each
March, June, September and December and the applicable Maturity Date; (c) with
respect to any ABR Swingline Loan (other than an Unrefunded Swingline Loan),
the earlier of (i) the day that is five Business Days after such Loan is made
and (ii) the Revolving Credit Maturity Date and (d) with respect to any Quoted
Swingline Loan, the date established as such by Westinghouse and the relevant
Swingline Lender prior to the making thereof (but in any event no later than
the Revolving Credit Maturity Date).
"Interest Period" shall mean (a) as to any Eurodollar Loan, the period
commencing on the borrowing date or conversion date of such Loan, or on the
last day of the immediately preceding Interest Period applicable to such Loan,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months or (subject, in the case of Revolving Credit
Loans, to the prior consent of each Lender) 9 or 12 months thereafter, as
Westinghouse may elect, and (b) as to any Absolute Rate Loan, the period
commencing on the date of such Loan and ending on the date specified in the
Competitive Bids in which the offer to make such Absolute Rate Loan was
extended, which shall not be later than 180 days after the date of such Loan;
provided, however, that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii)
notwithstanding anything to the contrary herein, Westinghouse may not select an
Interest Period which would end after the Maturity Date applicable to the
relevant Loan. Interest shall accrue from and including that first day of an
Interest Period to but excluding the last day of such Interest Period.
"Interim Certificate" shall have the meaning assigned to such term in Annex
I hereto.
"Issuing Lender" shall mean any Lender designated as an Issuing Lender in an
Issuing Lender Agreement executed by such Lender, Westinghouse and the
Administrative Agent.
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"Issuing Lender Agreement" shall mean an agreement, substantially in the
form of Exhibit G, executed by a Lender, Westinghouse, and the Administrative
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder.
"Issuing Lender Fees" shall mean, as to any Issuing Lender, the fees set
forth in the applicable Issuing Lender Agreement.
"LC Disbursement" shall mean any payment or disbursement made by an Issuing
Lender under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, as to each Lender, such Lender's Revolving Credit
Percentage of the Aggregate LC Exposure.
"LC Fee" shall have the meaning assigned such term in Section 2.9(b).
"Lenders" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Letters of Credit" shall mean letters of credit or bank guarantees issued
by an Issuing Lender for the account of Westinghouse pursuant to Section 2.7
(including any Designated Letters of Credit).
"Leveraged Spin-Off Indebtedness" shall mean Indebtedness incurred by a
Subsidiary (either previously existing or newly formed) for the purpose of
financing a cash dividend or other cash distribution made, directly or
indirectly, to Westinghouse, so long as (a) concurrently with or immediately
after the incurrence of such Indebtedness and the making of such dividend or
distribution, all of the common stock of such Subsidiary is distributed to the
common shareholders of Westinghouse and (b) the assets of the Subsidiary which
is the subject of such transaction are comprised entirely of assets included
within those businesses of Westinghouse and its Subsidiaries identified in a
written notice from Westinghouse delivered to the Lenders prior to the Closing
Date.
"Lien" shall mean, with respect to any asset or Property, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset or Property and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset or Property.
"Loan" shall mean any loan made by a Lender hereunder.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal rounded to
no more than four places) to be added to or subtracted from the Eurodollar Rate
in order to determine the interest rate applicable to such Loan, as specified
in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term under Regulation
U.
"Material Acquisition" shall mean any acquisition of Property or series of
related acquisitions of Property (including by way of merger) which (a)
constitutes assets comprising all or substantially all of an operating unit of
a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by Westinghouse and its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash consideration consisting of notes
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or other debt securities and valued at fair market value in the case of other
non-cash consideration) in excess of $50,000,000.
"Material Adverse Effect" shall mean (a) a material adverse effect on the
Property, business, results of operations or financial condition of
Westinghouse and its Subsidiaries taken as a whole or (b) material impairment
of the ability of Westinghouse to perform any of its obligations under this
Agreement.
"Material Disposition" shall mean any Disposition of Property or series of
related Dispositions of Property which yields gross proceeds to Westinghouse or
any of its Subsidiaries (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess
of $50,000,000.
"Material Subsidiary" shall mean any Subsidiary of Westinghouse except for
Subsidiaries which in the aggregate would not constitute a significant
subsidiary under Regulation S-X of the SEC.
"Maturity Date" shall mean (a) in the case of the Revolving Credit Loans and
the ABR Swingline Loans, the Revolving Credit Maturity Date, (b) in the case of
the Quoted Swingline Loans, the date established as such by Westinghouse and
the relevant Swingline Lender prior to the making thereof (but in any event no
later than the Revolving Credit Maturity Date) and (c) in the case of
Competitive Loans, the last day of the Interest Period applicable thereto, as
specified in the related Competitive Bid Request.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Xxxxxx" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
3(37) of ERISA to which contributions have been made by Westinghouse or any
ERISA Affiliate of Westinghouse and which is covered by Title IV of ERISA.
"NationsBank" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Net Worth Commencement Date" shall have the meaning assigned to such term
in Section 5.9.
"1996 First Quarter Financial Statements" shall mean the unaudited
consolidated financial statements of Westinghouse and its subsidiaries as of
and for the fiscal quarter ended March 31, 1996 as set forth in the Quarterly
Report on Form 10-Q of Westinghouse.
"Non-Financial Letter of Credit" shall mean any Letter of Credit that is not
a Financial Letter of Credit.
"Non-U.S. Person" shall have the meaning assigned to such term in Section
2.20(f).
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"Outstanding Revolving Extensions of Credit" shall mean, as to any Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding, (b) such
Lender's LC Exposure at such time and (c) such Lender's ABR Swingline Exposure
at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability company or other
entity, or any government or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan as defined in Section
3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code and which is maintained for
employees of Westinghouse or any ERISA Affiliate.
"Prime Rate" shall have the meaning assigned to such term in the definition
of "Alternate Base Rate".
"Pro Forma Period" shall have the meaning assigned to such term in Section
1.2(c).
"Projections" shall have the meaning assigned to such term in Section 3.13.
"Property" shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Quoted Swingline Loans" shall have the meaning assigned to such term in
Section 2.6(a).
"Quoted Swingline Rate" shall have the meaning assigned to such term in
Section 2.6(a).
"Rating Agencies" shall mean S&P and Moody's.
"Reference Banks" shall mean Chase, Morgan, NationsBank and Toronto
Dominion.
"Register" shall have the meaning assigned to such term in Section 8.4(d).
"Regulation D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders whose respective Total
Facility Percentages aggregate not less than 51%.
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"Responsible Officer" of any corporation shall mean any executive officer or
Financial Officer of such corporation and any other officer or similar official
thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement (or, in the case of matters relating
to ERISA, any officer responsible for the administration of the pension funds
of such corporation).
"Revolving Credit Borrowing Request" shall mean a request made pursuant to
Section 2.4 in the form of Exhibit B-4.
"Revolving Credit Loans" shall mean the revolving loans made by the Lenders
to Westinghouse pursuant to Section 2.4. Each Revolving Credit Loan shall be a
Eurodollar Loan or an ABR Loan.
"Revolving Credit Maturity Date" shall mean the fifth anniversary of the
Closing Date.
"Revolving Credit Percentage" of any Lender at any time shall mean the
percentage of the aggregate Commitments (or, following any termination of all
the Commitments, the Commitments most recently in effect) represented by such
Lender's Commitment (or, following any such termination, the Commitment of such
Lender most recently in effect).
"Sale/Leaseback" shall mean any lease, whether an operating lease or a
capital lease, whereby Westinghouse or any of its Subsidiaries, directly or
indirectly, becomes or remains liable as lessee or as guarantor or other
surety, of any Property whether now owned or hereafter acquired, (a) that
Westinghouse or any of its Subsidiaries, as the case may be, has sold or
transferred or is to sell or transfer to any other Person (other than
Westinghouse or any of its Subsidiaries), or (b) that is acquired by any other
Person, as part of a financing transaction to which Westinghouse or any of its
Subsidiaries is a party, in contemplation of leasing such Property to
Westinghouse or any of its Subsidiaries, as the case may be.
"Sale/Leaseback Attributable Debt" shall mean, for any Sale/Leaseback, the
present value (discounted at the rate of interest implicit in such
Sale/Leaseback, determined in accordance with GAAP or, in the event that such
rate of interest is not reasonably determinable, discounted at the interest
rate applicable to an ABR Revolving Credit Loan on the date of the commencement
of such transaction), as of the date on which the amount thereof is to be
determined, of the obligation of the lessee for net rental payments during the
remaining term of such Sale/Leaseback (including any period for which such
Sale/Leaseback may, at the option of the lessor, be extended). In the case of
any master lease agreement, each fixed or capital asset subject thereto (or any
related group of such assets for which the lease terms commence at the same
time) shall be deemed to be the subject of a separate Sale/Leaseback, and, to
the extent that any fixed or capital asset is the subject of a Sale/Leaseback
and then of another, the Sale/Leaseback Attributable Debt will be deemed to be
incurred only under the first such Sale/Leaseback. For the purposes of Section
5.5(o), the Sale/Leaseback Attributable Debt of any Subsidiary of Westinghouse
which is not a Wholly Owned Subsidiary shall be deemed to be the amount
determined in accordance with the foregoing provisions of this definition
multiplied by Westinghouse's direct or indirect percentage common equity
interest in such Subsidiary at the date of determination.
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission.
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"Specified Section 5.5(o) Indebtedness" shall have the meaning assigned to
such term in Section 5.5(o).
"Subsidiary" shall mean, for any Person (the "Parent"), any corporation,
partnership or other entity of which shares of Voting Capital Stock sufficient
to elect a majority of the board of directors or other Persons performing
similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening
of any contingency) are at the time directly or indirectly owned or controlled
by the Parent or one or more of its Subsidiaries or by the Parent and one or
more of its Subsidiaries; provided, however, that (a) no Person of which
Westinghouse or any of its Subsidiaries acquires or has acquired control in
connection with or as a consequence of any debt or equity financing provided to
such Person in the ordinary course of the business of WFSI, any of its
Subsidiaries, Financial Services or WCI shall be deemed a Subsidiary of
Westinghouse and (b) for purposes of paragraph (d) of Article VI, no Person
which is a FSC shall be deemed a Subsidiary of Westinghouse. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Westinghouse.
"Swingline Commitment" shall mean, with respect to any Swingline Lender, the
commitment of such Lender to make ABR Swingline Loans pursuant to Section 2.6,
as designated in accordance with Section 2.6(g).
"Swingline Lender" shall mean any Lender designated by Westinghouse as a
"Swingline Lender" pursuant to Section 2.6(g).
"Swingline Loans" shall mean the collective reference to the ABR Swingline
Loans and the Quoted Swingline Loans.
"Swingline Percentage" of any Swingline Lender at any time shall mean the
percentage of the aggregate Swingline Commitments represented by such Swingline
Lender's Swingline Commitment.
"Syndication Agents" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Test Period" shall have the meaning assigned to such term in Section
1.2(c).
"Toronto Dominion" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Total Base Commitment" shall mean at any time the aggregate amount of the
Base Commitments in effect at such time.
"Total Facility Exposure" shall mean at any time the aggregate amount of the
Facility Exposures at such time.
"Total Facility Percentage" shall mean, as to any Lender at any time, the
quotient (expressed as a percentage) of (a) such Lender's Commitment (or (x)
for the purposes of acceleration of the Loans pursuant to clause (II) of
Article VI or (y) if the Commitments have terminated, such Lender's Facility
Exposure) and (b) the aggregate of all Lenders' Commitments (or (x) for the
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purposes of acceleration of the Loans pursuant to clause (II) of Article VI or
(y) if the Commitments have terminated, the Total Facility Exposure).
"Total Utilizable Commitment" shall mean at any time the aggregate amount of
the Utilizable Commitments in effect at such time.
"Transferee" shall mean any assignee or participant described in Section
8.4(b) or (f).
"Type" when used in respect of any Loan, shall refer to the Rate by
reference to which interest on such Loan is determined. For purposes hereof,
"Rate" shall mean the Eurodollar Rate, the Alternate Base Rate, the Quoted
Swingline Rate and the rate paid on Absolute Rate Loans.
"Unrefunded Swingline Loans" shall have the meaning assigned to such term in
Section 2.6(d).
"U.S. Person" shall mean a citizen, national or resident of the United
States of America, or an entity organized in or under the laws of the United
States of America.
"Utilizable Commitment" shall mean, at any time, with respect to each
Lender, (a) prior to the Infinity Merger Date, such Lender's Base Commitment
then in effect and (b) on and after the Infinity Merger Date, such Lender's
Commitment then in effect.
"Voting Capital Stock" shall mean securities or other ownership interests of
a corporation, partnership or other entity having by the terms thereof ordinary
voting power to vote in the election of the board of directors or other Persons
performing similar functions of such corporation, partnership or other entity
(without regard to the occurrence of any contingency).
"Westinghouse" shall have the meaning assigned to such term in the preamble
to this Agreement.
"WCI" shall mean WCI Communities, Inc., a Delaware corporation, and its
Wholly Owned Subsidiaries.
"WFSI" shall mean Westinghouse Financial Services, Inc., a Delaware
corporation that was merged into Westinghouse on May 5, 1993.
"Wholly Owned Subsidiary" shall mean any Subsidiary of which all shares of
Voting Capital Stock (other than, in the case of a corporation, directors'
qualifying shares) are owned directly or indirectly by the Parent (as defined
in the definition of "Subsidiary").
SECTION 1.2. Terms Generally. (a) The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall, except where the context otherwise requires, be deemed to be
followed by the phrase "without limitation". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require.
(b) Except as otherwise expressly provided herein, all terms of an
accounting nature shall be construed in accordance with GAAP as in effect from
time to time; provided, however, that,
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for purposes of determining compliance with the covenants set forth in Sections
5.7, 5.8 and 5.9 (such Sections being referred to as the "Financial
Covenants"), except as otherwise set forth in the Financial Covenants and the
definitions related thereto, such terms shall be construed in accordance with
GAAP as in effect on March 31, 1996, applied on a basis consistent with the
application used in preparing the 1996 First Quarter Financial Statements.
(c) For the purposes of calculating Consolidated EBITDA and Consolidated
Interest Expense for any period (a "Test Period"), (i) if at any time from the
period (a "Pro Forma Period") commencing on the second day of such Test Period
and ending on the date which is ten days prior to the date of delivery of the
Compliance Certificate or Interim Certificate, as the case may be, in respect
of such Test Period (or, in the case of any pro forma calculation made pursuant
hereto in respect of a particular transaction, ending on the date such
transaction is consummated after giving effect thereto), Westinghouse or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA
for such Test Period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) attributable to the Property which is the subject of such
Material Disposition for such Test Period or increased by an amount equal to
the Consolidated EBITDA (if negative) attributable thereto for such Test
Period, and Consolidated Interest Expense for such Test Period shall be reduced
by an amount equal to the Consolidated Interest Expense for such Test Period
attributable to any Indebtedness of Westinghouse or any Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to Westinghouse and
its Subsidiaries in connection with such Material Disposition (or, if the
Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense for
such Test Period directly attributable to the Indebtedness of such Subsidiary
to the extent Westinghouse and its continuing Subsidiaries are no longer liable
for such Indebtedness after such Disposition); (ii) if during such Pro Forma
Period Westinghouse or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA and Consolidated Interest Expense for such Test Period
shall be calculated after giving pro forma effect thereto (including the
incurrence or assumption of any Indebtedness in connection therewith) as if
such Material Acquisition (and the incurrence or assumption of any such
Indebtedness) occurred on the first day of such Test Period; and (iii) if
during such Pro Forma Period any Person that subsequently became a Subsidiary
or was merged with or into Westinghouse or any Subsidiary since the beginning
of such Pro Forma Period shall have entered into any disposition or acquisition
transaction that would have required an adjustment pursuant to clause (i) or
(ii) above if made by Westinghouse or a Subsidiary during such Pro Forma
Period, Consolidated EBITDA and Consolidated Interest Expense for such Test
Period shall be calculated after giving pro forma effect thereto as if such
transaction occurred on the first day of such Test Period. For the purposes of
this paragraph, whenever pro forma effect is to be given to a Material
Disposition or Material Acquisition, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness discharged or incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a Financial Officer of
Westinghouse. If any Indebtedness bears a floating rate of interest and the
incurrence or assumption thereof is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on
the last day of the relevant Pro Forma Period had been the applicable rate for
the entire relevant Test Period (taking into account any interest rate
protection agreement applicable to such Indebtedness if such interest rate
protection agreement has a remaining term in excess of 12 months).
(d) For the purposes of the Financial Covenants, (i) the Discontinued
Operations shall be disregarded and (ii) the businesses classified as
Discontinued Operations shall be limited to those businesses treated as such in
the 1996 First Quarter Financial Statements and the accounting treatment of
Discontinued Operations shall be consistent with the accounting treatment
thereof in such financial statements.
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ARTICLE II.
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Revolving Credit Loans to
Westinghouse, at any time and from time to time on and after the Closing Date
and until the earlier of (a) the Business Day immediately preceding the
Revolving Credit Maturity Date and (b) the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Utilizable Commitment. Westinghouse may borrow, prepay
and reborrow Revolving Credit Loans on and after the Closing Date and prior to
the Revolving Credit Maturity Date, subject to the terms, conditions and
limitations set forth herein.
SECTION 2.2. Revolving Credit Loans; Competitive Loans. (a) Each
Revolving Credit Loan shall be made to Westinghouse by the Lenders ratably in
accordance with their respective Commitments. Each Competitive Loan shall be
made to Westinghouse by the Lender whose Competitive Bid therefor is accepted,
and in the amount so accepted, in accordance with the procedures set forth in
Section 2.3. The Revolving Credit Loans or Competitive Loans shall be made in
minimum amounts equal to (i) in the case of Competitive Loans, $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (ii) in the case of
Eurodollar Revolving Credit Loans, $50,000,000 or an integral multiple of
$5,000,000 in excess thereof, and (iii) in the case of ABR Revolving Credit
Loans, $25,000,000 or an integral multiple of $5,000,000 in excess thereof (or
an aggregate principal amount equal to the remaining balance of the available
Total Utilizable Commitments).
(b) Each Lender shall make each Loan (other than a Swingline Loan, as to
which this Section 2.2 shall not apply) to be made by it on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 12:00 noon, New York City time (or,
in connection with an ABR Loan to be made on the same day on which a notice is
submitted, 12:30 p.m., New York City time) and the Administrative Agent shall
by 3:00 p.m., New York City time, credit the amounts so received to the general
deposit account of Westinghouse with the Administrative Agent.
SECTION 2.3. Competitive Bid Procedure. (a) In order to request
Competitive Bids, Westinghouse shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit B-1, to be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Loan, not later than 10:00 a.m., New York City time,
four Business Days before a proposed Competitive Loan and (ii) in the case of
an Absolute Rate Loan, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Loan. A Competitive Bid Request
that does not conform substantially to the format of Exhibit B-1 may be
rejected in the Administrative Agent's discretion (exercised in good faith),
and the Administrative Agent shall promptly notify Westinghouse of such
rejection by telephone, confirmed by telecopier. Such request shall in each
case refer to this Agreement and specify (x) whether the Competitive Loan then
being requested is to be a Eurodollar Competitive Loan or an Absolute Rate
Loan, (y) the date of such Loan (which shall be a Business Day) and the
aggregate principal amount thereof which shall be in a minimum principal amount
of $5,000,000 and in an integral multiple of $1,000,000, and (z) the Interest
Period with respect thereto (which may not end after the Revolving Credit
Maturity Date). Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid (and in any event by 5:00 p.m., New York City
time, on the date of such receipt if such receipt occurs by the time specified
in the first sentence of this paragraph), the Administrative Agent shall invite
by telecopier (in the form set forth in Exhibit B-2) the Lenders to bid, on the
terms and conditions of this Agreement, to make Competitive Loans pursuant to
such Competitive Bid Request.
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(b) Each Lender may, in its sole discretion, make one or more Competitive
Bids to Westinghouse responsive to a Competitive Bid Request. Each Competitive
Bid must be received by the Administrative Agent by telecopier, in the form of
Exhibit B-3, (i) in the case of a Eurodollar Competitive Loan, not later than
9:30 a.m., New York City time, three Business Days before a proposed
Competitive Loan and (ii) in the case of an Absolute Rate Loan, not later than
9:30 a.m., New York City time, on the day of a proposed Competitive Loan.
Multiple Competitive Bids will be accepted by the Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit B-3
may be rejected by the Administrative Agent after conferring with, and upon the
instruction of, Westinghouse, and the Administrative Agent shall notify the
Lender making such nonconforming Competitive Bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to this Agreement and specify
(x) the principal amount (which shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Loan requested by Westinghouse) of
the Competitive Loan or Loans that the applicable Lender is willing to make to
Westinghouse, (y) the Competitive Bid Rate or Rates at which such Lender is
prepared to make the Competitive Loan or Loans and (z) the Interest Period and
the last day thereof. A Competitive Bid submitted pursuant to this paragraph
(b) shall be irrevocable (subject to the satisfaction of the conditions to
borrowing set forth in Article IV).
(c) The Administrative Agent shall promptly (and in any event by 10:15
a.m., New York City time, on the date on which such Competitive Bids shall have
been made) notify Westinghouse by telecopier of all the Competitive Bids made,
the Competitive Bid Rate and the principal amount of each Competitive Loan in
respect of which a Competitive Bid was made and the identity of the Lender that
made each Competitive Bid. The Administrative Agent shall send a copy of all
Competitive Bids to Westinghouse for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.3.
(d) Westinghouse may in its sole and absolute discretion, subject only to
the provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above. Westinghouse shall notify the
Administrative Agent by telephone, confirmed by telecopier in such form as may
be agreed upon by Westinghouse and the Administrative Agent, whether and to
what extent it has decided to accept or reject any of or all the Competitive
Bids referred to in paragraph (c) above, (x) in the case of a Eurodollar
Competitive Loan, not later than 11:00 a.m., New York City time, three Business
Days before a proposed Competitive Loan, and (y) in the case of an Absolute
Rate Loan, not later than 11:00 a.m., New York City time, on the day of a
proposed Competitive Loan; provided, however, that (i) the failure by
Westinghouse to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in paragraph (c) above, (ii) Westinghouse shall
not accept a Competitive Bid made at a particular Competitive Bid Rate if it
has decided to reject a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by Westinghouse
shall not exceed the principal amount specified in the Competitive Bid Request
(but may be less than that requested), (iv) if Westinghouse shall accept a
Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate
but the amount of such Competitive Bid or Competitive Bids shall cause the
total amount of Competitive Bids to be accepted by it to exceed the amount
specified in the Competitive Bid Request, then Westinghouse shall accept a
portion of such Competitive Bid or Competitive Bids in an amount equal to the
amount specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid at such Competitive Bid Rate, and (v) except pursuant to clause
(iv) above no Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $5,000,000 and an
integral amount multiple of $1,000,000; provided, further, however, that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
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provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of Westinghouse. A notice given by Westinghouse pursuant to this
paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Administrative Agent,
and each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its Competitive Bid has been accepted.
(f) A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request, unless Westinghouse and
the Administrative Agent shall mutually agree otherwise.
(g) If the Lender which is the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to Westinghouse one quarter of an hour earlier than the latest time
at which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.3 shall be given in accordance
with Section 8.1.
(i) Westinghouse shall not have the right to prepay any Competitive Loan
without the consent of the affected Lender or Lenders.
SECTION 2.4. Revolving Credit Borrowing Procedure. In order to request a
Revolving Credit Loan, Westinghouse shall hand deliver or telecopy to the
Administrative Agent a Revolving Credit Borrowing Request in the form of
Exhibit B-4 (a) in the case of a Eurodollar Revolving Credit Loan, not later
than 11:00 a.m., New York City time, three Business Days before a proposed
borrowing and (b) in the case of an ABR Revolving Credit Loan, not later than
11:00 a.m., New York City time, on the day of a proposed borrowing. Such
notice shall be irrevocable and shall in each case specify (i) whether the
Revolving Credit Loan then being requested is to be a Eurodollar Revolving
Credit Loan or an ABR Revolving Credit Loan, (ii) the date of such Revolving
Credit Loan (which shall be a Business Day) and the amount thereof; and (iii)
in the case of a Eurodollar Revolving Credit Loan, the Interest Period with
respect thereto. The Administrative Agent shall promptly advise the Lenders of
any notice given pursuant to this Section 2.4 and of each Lender's portion of
the requested Loan.
SECTION 2.5. Repayment of Loans. Westinghouse shall repay all outstanding
Revolving Credit Loans and all outstanding ABR Swingline Loans on the Revolving
Credit Maturity Date (or such earlier date on which the Commitments shall
terminate in accordance herewith). Westinghouse shall repay Quoted Swingline
Loans and Competitive Loans on the Maturity Date applicable thereto. Each Loan
shall bear interest from and including the date thereof on the outstanding
principal balance thereof as set forth in Section 2.10.
SECTION 2.6. Swingline Loans. (a) Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Swingline Lender agrees, severally and not jointly, at any time and from
time to time on and after the Closing Date and until the
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earlier of the Business Day immediately preceding the Revolving Credit Maturity
Date and the termination of the Swingline Commitment of such Swingline Lender,
(i) to make available to Westinghouse Swingline Loans ("Quoted Swingline
Loans") on the basis of quoted interest rates (each, a "Quoted Swingline Rate")
furnished by such Swingline Lender from time to time in its discretion to
Westinghouse (through the Administrative Agent) and accepted by Westinghouse in
its discretion and (ii) to make Swingline Loans ("ABR Swingline Loans") to
Westinghouse bearing interest at a rate equal to the Alternate Base Rate in an
aggregate principal amount (in the case of this clause (ii)) not to exceed such
Swingline Lender's Swingline Commitment. The aggregate outstanding principal
amount of the Quoted Swingline Loans of any Swingline Lender, when added to the
aggregate outstanding principal amount of the ABR Swingline Loans of such
Swingline Lender, may exceed such Swingline Lender's Swingline Commitment,
provided, that in no event shall the aggregate outstanding principal amount of
the Swingline Loans exceed the aggregate Swingline Commitments then in effect.
Each Quoted Swingline Loan shall be made only by the Swingline Lender
furnishing the relevant Quoted Swingline Rate. Each ABR Swingline Loan shall
be made by the Swingline Lenders ratably in accordance with their respective
Swingline Percentages. The Swingline Loans shall be made in a minimum
aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof (or an aggregate principal amount equal to the remaining
balance of the available Swingline Commitments). Each Swingline Lender shall
make the portion of each Swingline Loan to be made by it available to
Westinghouse by means of a credit to the general deposit account of
Westinghouse with the Administrative Agent or a wire transfer, at the expense
of Westinghouse, to an account designated in writing by Westinghouse, in each
case by 3:30 p.m., New York City time, on the date such Swingline Loan is
requested to be made pursuant to paragraph (b) below, in immediately available
funds. Westinghouse may borrow, prepay and reborrow Swingline Loans on or
after the Closing Date and prior to the Revolving Credit Maturity Date (or such
earlier date on which the Commitments shall terminate in accordance herewith)
on the terms and subject to the conditions and limitations set forth herein.
(b) Westinghouse shall give the Administrative Agent telephonic, written or
telecopy notice substantially in the form of Exhibit B-5 (in the case of
telephonic notice, such notice shall be promptly confirmed by telecopy) no
later than 2:30 p.m., New York City time (or, in the case of a proposed Quoted
Swingline Loan, 12:00 noon, New York City time), on the day of a proposed
Swingline Loan. Such notice shall be delivered on a Business Day, shall be
irrevocable (subject, in the case of Quoted Swingline Loans, to receipt by
Westinghouse of Quoted Swingline Rates acceptable to it) and shall refer to
this Agreement and shall specify the requested date (which shall be a Business
Day) and amount of such Swingline Loan. The Administrative Agent shall
promptly advise the Swingline Lenders of any notice received from Westinghouse
pursuant to this paragraph (b). In the event that Westinghouse accepts a
Quoted Swingline Rate in respect of a proposed Quoted Swingline Loan, it shall
notify the Administrative Agent (which shall in turn notify the relevant
Swingline Lender) of such acceptance no later than 2:30 p.m., New York City
time, on the relevant borrowing date.
(c) In the event that any ABR Swingline Loan shall be outstanding for more
than five Business Days, the Administrative Agent shall, on behalf of
Westinghouse (which hereby irrevocably directs and authorizes the
Administrative Agent to act on its behalf), request each Lender, including the
Swingline Lenders, to make an ABR Revolving Credit Loan in an amount equal to
such Lender's Revolving Credit Percentage of the principal amount of such ABR
Swingline Loan. Each Lender will make the proceeds of its Revolving Credit
Loan available to the Administrative Agent for the account of the Swingline
Lenders at the office of the Administrative Agent prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date such notice is given. The proceeds of such Revolving Credit Loans
shall be immediately applied to repay the ABR Swingline Loans.
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(d) If, for any reason, Revolving Credit Loans may not be (as determined by
the Administrative Agent in its sole discretion), or are not, made pursuant to
Section 2.6(c) to repay ABR Swingline Loans as required by said Section, then,
effective on the date such Revolving Credit Loans would otherwise have been
made, each Lender severally, unconditionally and irrevocably agrees that it
shall purchase an undivided participating interest in such ABR Swingline Loans
("Unrefunded Swingline Loans") in an amount equal to the amount of the
Revolving Credit Loan which otherwise would have been made by such Lender
pursuant to Section 2.6(c), which purchase shall be funded by the time such
Revolving Credit Loan would have been required to be made pursuant to Section
2.6(c). In the event that the Lenders purchase undivided participating
interests pursuant to the first sentence of this paragraph (d), each Lender
shall immediately transfer to the Administrative Agent, for the account of the
Swingline Lenders, in immediately available funds, the amount of its
participation. Any Lender holding a participation in an Unrefunded Swingline
Loan may exercise any and all rights of banker's lien, setoff or counterclaim
with respect to any and all moneys owing by Westinghouse to such Lender by
reason thereof as fully as if such Lender had made a Loan directly to
Westinghouse in the amount of such participation.
(e) Whenever, at any time after any Swingline Lender has received from any
Lender such Lender's participating interest in an ABR Swingline Loan, such
Swingline Lender receives any payment on account thereof, such Swingline Lender
will promptly distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by such Swingline Lender is required to be returned, such Lender will
return to such Swingline Lender any portion thereof previously distributed by
such Swingline Lender to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Revolving Credit Loans referred to in Section
2.6(c) and to purchase and fund participating interests pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or Westinghouse may have
against any Swingline Lender, Westinghouse or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the conditions specified in Article
IV; (iii) any adverse change in the condition (financial or otherwise) of
Westinghouse or any of its Subsidiaries; (iv) any breach of this Agreement by
Westinghouse or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(g) Upon written or telecopy notice to the Swingline Lenders and to the
Administrative Agent, Westinghouse may at any time terminate, from time to time
in part reduce, or from time to time (with the approval of the relevant
Swingline Lender) increase, the Swingline Commitment of any Swingline Lender.
At any time when there shall be fewer than ten Swingline Lenders, Westinghouse
may appoint from among the Lenders a new Swingline Lender, subject to the prior
consent of such new Swingline Lender and prior notice to the Administrative
Agent, so long as at no time shall there be more than ten Swingline Lenders.
Notwithstanding anything to the contrary in this Agreement, (i) if any ABR
Swingline Loans shall be outstanding at the time of any termination, reduction,
increase or appointment pursuant to the preceding two sentences, Westinghouse
shall on the date thereof prepay or borrow ABR Swingline Loans to the extent
necessary to ensure that at all times the outstanding ABR Swingline Loans held
by the Swingline Lenders shall be pro rata according to the respective
Swingline Commitments of the Swingline Lenders and (ii) in no event may the
aggregate Swingline Commitments exceed $600,000,000. On the date of any
termination or reduction of the Swingline Commitments pursuant to this
paragraph (g), Westinghouse shall pay or prepay so much of the Swingline Loans
as shall be necessary in order that, after giving effect to such termination
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or reduction, (i) the aggregate outstanding principal amount of the ABR
Swingline Loans of any Swingline Lender will not exceed the Swingline
Commitment of such Swingline Lender and (ii) the aggregate outstanding
principal amount of all Swingline Loans will not exceed the aggregate Swingline
Commitments.
(h) Westinghouse may prepay any Swingline Loan in whole or in part at any
time without premium or penalty; provided that Westinghouse shall have given
the Administrative Agent written or telecopy notice (or telephone notice
promptly confirmed in writing or by telecopy) of such prepayment not later than
10:30 a.m., New York City time, on the Business Day designated by Westinghouse
for such prepayment; and provided further that each partial payment shall be in
an amount that is an integral multiple of $1,000,000. Each notice of
prepayment under this paragraph (h) shall specify the prepayment date and the
principal amount of each Swingline Loan (or portion thereof) to be prepaid,
shall be irrevocable and shall commit Westinghouse to prepay such Swingline
Loan (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this paragraph (h) shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.
Each payment of principal of or interest on ABR Swingline Loans shall be
allocated, as between the Swingline Lenders, pro rata in accordance with their
respective Swingline Percentages.
SECTION 2.7. Letters of Credit. (a) Subject to the terms and conditions
hereof and relying upon the representations and warranties herein set forth,
each Issuing Lender agrees, at any time and from time to time on or after the
Closing Date until the earlier of (i) the tenth Business Day preceding the
Revolving Credit Maturity Date and (ii) the termination of the Commitments in
accordance with the terms hereof, to issue and deliver or to extend the expiry
of Letters of Credit for the account of Westinghouse in an aggregate
outstanding undrawn amount which does not exceed the maximum amount specified
in the applicable Issuing Lender Agreement; provided that in no event shall the
Aggregate LC Exposure exceed $1,500,000,000 at any time. Each Letter of Credit
(i) shall be in a form approved in writing by Westinghouse and the applicable
Issuing Lender and (ii) shall permit drawings upon the presentation of such
documents as shall be specified by Westinghouse in the applicable notice
delivered pursuant to paragraph (c) below. The Lenders agree that, subject to
compliance with the conditions precedent set forth in Section 4.2, any
Designated Letter of Credit may be designated as a Letter of Credit hereunder
from time to time on or after the Closing Date pursuant to the procedures
specified in the definition of "Designated Letters of Credit".
(b) Each Letter of Credit shall by its terms expire not later than the
fifth Business Day preceding the Revolving Credit Maturity Date. Any Letter of
Credit may provide for the renewal thereof for additional periods (which shall
in no event extend beyond the date referred to in the preceding sentence).
Each Letter of Credit shall by its terms provide for payment of drawings in
Dollars or in a Foreign Currency, provided that a Letter of Credit denominated
in a Foreign Currency may not be issued if, after giving effect thereto, the
Dollar equivalent of the aggregate face amount of all Letters of Credit
denominated in Foreign Currencies then outstanding would exceed $300,000,000,
as determined by the Administrative Agent.
(c) Westinghouse shall give the applicable Issuing Lender and the
Administrative Agent written or telecopy notice not later than 10:00 a.m., New
York City time, five Business Days (or such shorter period as shall be
acceptable to such Issuing Lender) prior to any proposed issuance of a Letter
of Credit. Each such notice shall refer to this Agreement and shall specify
(i) the date on which such Letter of Credit is to be issued (which shall be a
Business Day) and the face amount of such Letter of Credit, (ii) the name and
address of the beneficiary, (iii) whether such Letter of Credit is a Financial
Letter of Credit or a Non-Financial Letter of Credit (subject to confirmation
of such
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status by the Administrative Agent), (iv) whether such Letter of Credit shall
permit a single drawing or multiple drawings, (v) the form of the documents
required to be presented at the time of any drawing (together with the exact
wording of such documents or copies thereof), (vi) the expiry date of such
Letter of Credit (which shall conform to the provisions of paragraph (b) above)
and (vii) if such Letter of Credit is to be in a Foreign Currency, the relevant
Foreign Currency. The Administrative Agent shall give to each Lender prompt
written or telecopy advice of the issuance of any Letter of Credit. Each
determination by the Administrative Agent as to whether or not a Letter of
Credit constitutes a Financial Letter of Credit shall be conclusive and binding
upon Westinghouse and the Lenders.
(d) By the issuance of a Letter of Credit and without any further action on
the part of the applicable Issuing Lender or the Lenders in respect thereof,
the applicable Issuing Lender hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Lender, a participation in such Letter of
Credit equal to such Lender's Revolving Credit Percentage at the time of any
drawing thereunder of the face amount of such Letter of Credit, effective upon
the issuance of such Letter of Credit. In addition, the applicable Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from such
Issuing Lender, a participation in each Designated Letter of Credit equal to
such Lender's Revolving Credit Percentage at the time of any drawing thereunder
of the face amount of such Designated Letter of Credit, effective on the date
such Designated Letter of Credit is designated as a Letter of Credit hereunder.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of each Issuing Lender, in accordance with paragraph (f) below,
such Lender's Revolving Credit Percentage of each unreimbursed LC Disbursement
made by such Issuing Lender; provided, however, that the Lenders shall not be
obligated to make any such payment with respect to any payment or disbursement
made under any Letter of Credit to the extent resulting from the gross
negligence or wilful misconduct of such Issuing Lender.
(e) Each Lender acknowledges and agrees that its acquisition of
participations pursuant to paragraph (d) above in respect of Letters of Credit
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or Westinghouse may have
against any Issuing Lender, Westinghouse or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the conditions specified in Article
IV; (iii) any adverse change in the condition (financial or otherwise) of
Westinghouse or any of its Subsidiaries; (iv) any breach of this Agreement by
Westinghouse or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(f) On the date on which it shall have ascertained that any documents
presented under a Letter of Credit appear to be in conformity with the terms
and conditions of such Letter of Credit, the applicable Issuing Lender shall
give written or telecopy notice to Westinghouse and the Administrative Agent of
the amount of the drawing and the date on which payment thereon has been or
will be made. If the applicable Issuing Lender shall not have received from
Westinghouse the payment required pursuant to paragraph (g) below by 12:00
noon, New York City time, two Business Days after the date on which payment of
a draft presented under any Letter of Credit has been made, such Issuing Lender
shall so notify the Administrative Agent, which shall in turn promptly notify
each Lender, specifying in the notice to each Lender such Lender's Revolving
Credit Percentage of such LC Disbursement. Each Lender shall pay to the
Administrative Agent, not later than 2:00 p.m., New York City time, on such
second Business Day, such Lender's Revolving Credit Percentage of such LC
Disbursement (which obligation shall be expressed in Dollars only), which the
Administrative Agent shall promptly pay to the applicable Issuing Lender. The
Administrative Agent will promptly remit to each Lender such Lender's Revolving
Credit Percentage of any amounts subsequently received by the Administrative
Agent from Westinghouse in respect of such LC Disbursement; provided that (i)
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amounts so received for the account of any Lender prior to payment by such
Lender of amounts required to be paid by it hereunder in respect of any LC
Disbursement and (ii) amounts representing interest at the rate provided in
paragraph (g) below on any LC Disbursement for the period prior to the payment
by such Lender of such amounts shall in each case be remitted to the applicable
Issuing Lender.
(g) If an Issuing Lender shall pay any draft presented under a Letter of
Credit, Westinghouse shall pay to such Issuing Lender an amount equal to the
amount of such draft before 12:00 noon, New York City time, on the second
Business Day immediately following the date of payment of such draft, together
with interest (if any) on such amount at a rate per annum equal to the interest
rate in effect for ABR Loans (or, in the case of Foreign Currency-denominated
Letters of Credit, the rate which would reasonably and customarily be charged
by such Issuing Lender on outstanding loans denominated in the relevant Foreign
Currency) from (and including) the date of payment of such draft to (but
excluding) the date on which either Westinghouse shall have repaid, or the
Lenders shall have refunded, such draft in full (which interest shall be
payable on such second Business Day and from time to time thereafter on demand
until either Westinghouse shall have repaid, or the Lenders shall have
refunded, such draft in full). In the event that such drawing shall be
refunded by the Lenders as provided in Section 2.7(f), Westinghouse shall pay
to the Administrative Agent, for the account of the Lenders, quarterly on the
last day of each March, June, September and December, interest on the amount so
refunded at a rate per annum equal to the interest rate in effect for ABR Loans
from (and including) the date of such refunding to (but excluding) the date on
which the amount so refunded by the Lenders shall have been paid in full in
Dollars by Westinghouse. Each payment made to an Issuing Lender by
Westinghouse pursuant to this paragraph shall be made at such Issuing Lender's
address for notices specified herein in lawful money of (x) the United States
of America (in the case of payments made on Dollar-denominated Letters of
Credit) or (y) the applicable foreign jurisdiction (in the case of payments on
Foreign Currency-denominated Letters of Credit) and in immediately available
funds. The obligation of Westinghouse to pay the amounts referred to above in
this paragraph (g) (and the obligations of the Lenders under paragraphs (d) and
(f) above) shall be absolute, unconditional and irrevocable and shall be
satisfied strictly in accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or any
Issuing Lender Agreement or of the obligations of Westinghouse under this
Agreement or any Issuing Lender Agreement;
(ii) the existence of any claim, setoff, defense or other right which
Westinghouse or any other Person may at any time have against the beneficiary
under any Letter of Credit, the Agents, any Issuing Lender or any Lender
(other than the defense of payment in accordance with the terms of this
Agreement or a defense based on the gross negligence or wilful misconduct of
the applicable Issuing Lender) or any other Person in connection with this
Agreement or any other transaction;
(iii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect; provided that payment by the
applicable Issuing Lender under such Letter of Credit against presentation of
such draft or document shall not have constituted gross negligence or wilful
misconduct;
(iv) payment by the applicable Issuing Lender under a Letter of Credit
against presentation of a draft or other document which does not comply in
any immaterial respect
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with the terms of such Letter of Credit; provided that such payment shall not
have constituted gross negligence or wilful misconduct; or
(v) any other circumstance or event whatsoever, whether or not similar to
any of the foregoing; provided that such other circumstance or event shall
not have been the result of gross negligence or wilful misconduct of the
applicable Issuing Lender.
It is understood that in making any payment under a Letter of Credit (x)
such Issuing Lender's exclusive reliance on the documents presented to it under
such Letter of Credit as to any and all matters set forth therein, including
reliance on the amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary thereof equals the amount of
such draft and whether or not any document presented pursuant to such Letter of
Credit proves to be forged, fraudulent or invalid in any respect, if such
document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and (y) any noncompliance in any
immaterial respect of the documents presented under a Letter of Credit with the
terms thereof shall, in either case, not, in and of itself, be deemed wilful
misconduct or gross negligence of such Issuing Lender.
(h) (i) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating any LC Fee or Commitment Fee payable in
respect of any Business Day, the Administrative Agent shall convert the amount
available to be drawn under any Letter of Credit denominated in Foreign
Currency into an amount of Dollars based upon the relevant Foreign Exchange
Rate in effect for such day. If on any date the Administrative Agent shall
notify Westinghouse that, by virtue of any change in the Foreign Exchange Rate
of any Foreign Currency in which a Letter of Credit is denominated, the Total
Facility Exposure shall exceed the Total Utilizable Commitment then in effect,
then, within three Business Days after the date of such notice, Westinghouse
shall prepay the Revolving Credit Loans and/or the Swingline Loans to the
extent necessary to eliminate such excess. Each Issuing Lender which has
issued a Letter of Credit denominated in a Foreign Currency agrees to notify
the Administrative Agent of the average daily outstanding amount thereof for
any period in respect of which LC Fees or Commitment Fees are payable and, upon
request by the Administrative Agent, for any other date or period. For all
purposes of this Agreement, determinations by the Administrative Agent of the
Dollar equivalent of any amount expressed in a Foreign Currency shall be made
on the basis of Foreign Exchange Rates reset monthly (or on such other periodic
basis as shall be selected by the Administrative Agent in its sole discretion)
and shall in each case be conclusive absent manifest error.
(ii) Notwithstanding anything to the contrary contained in this Section
2.7, prior to demanding any reimbursement from the Lenders pursuant to Section
2.7(f) in respect of any Letter of Credit denominated in a Foreign Currency,
the relevant Issuing Lender shall convert Westinghouse's obligation under
Section 2.7(g) to reimburse such Issuing Lender in such Foreign Currency into
an obligation to reimburse such Issuing Lender (and, in turn, the Lenders) in
Dollars. The amount of any such converted obligation shall be computed based
upon the relevant Foreign Exchange Rate (as quoted by the Administrative Agent
to such Issuing Lender) in effect for the day on which such conversion occurs.
SECTION 2.8. Conversion and Continuation Options. (a) Westinghouse may
elect from time to time to convert Eurodollar Revolving Credit Loans (or,
subject to Section 2.10(f), a portion thereof) to ABR Revolving Credit Loans on
the last day of an Interest Period with respect thereto by giving the
Administrative Agent prior irrevocable notice of such election. Westinghouse
may elect from time to time to convert ABR Revolving Credit Loans (subject to
Section 2.10(f)) to
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Eurodollar Revolving Credit Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Revolving Credit Loans shall specify the
length of the initial Interest Period therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding Eurodollar Revolving Credit Loans and ABR Revolving
Credit Loans may be converted as provided herein, provided that no Revolving
Credit Loan may be converted into a Eurodollar Revolving Credit Loan when any
Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not
to permit such a conversion.
(b) Any Eurodollar Revolving Credit Loans (or, subject to Section 2.10(f),
a portion thereof) may be continued as such upon the expiration of the then
current Interest Period with respect thereto by Westinghouse giving irrevocable
notice to the Administrative Agent, not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto, of the
length of the next Interest Period to be applicable to such Revolving Credit
Loans, provided that no Eurodollar Revolving Credit Loan may be continued as
such when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such a continuation, and provided, further,
that if Westinghouse shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Eurodollar Revolving Credit Loans shall be automatically
converted to ABR Revolving Credit Loans on the last day of such then expiring
Interest Period. Upon receipt of any notice from Westinghouse pursuant to this
Section 2.8(b), the Administrative Agent shall promptly notify each Lender
thereof.
SECTION 2.9. Fees. (a) Westinghouse agrees to pay to the Administrative
Agent for the account of each Lender a Commitment Fee for the period from and
including the date hereof to the Revolving Credit Maturity Date (or such
earlier date on which the Commitments shall terminate in accordance herewith),
computed at a per annum rate equal to the Applicable Commitment Fee Rate on the
average daily Commitment Fee Calculation Amount in respect of such Lender
during the period for which payment is made. In addition, Westinghouse agrees
to pay to the Administrative Agent for the account of each Lender a
supplemental Commitment Fee for the period from and including the date hereof
to the Infinity Merger Date (or such earlier date on which the Commitments
shall terminate in accordance herewith), computed at a per annum rate equal to
the Adjusted Applicable Commitment Fee Rate on the excess of such Lender's
Commitment over such Lender's Base Commitment. All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days and shall be payable quarterly in arrears on the last day of each March,
June, September and December, on the Revolving Credit Maturity Date or such
earlier date on which the Commitments shall be terminated, commencing on the
first of such dates to occur after the date hereof.
(b) Westinghouse agrees to pay each Lender, through the Administrative
Agent, on the last day of each March, June, September and December and on the
Revolving Credit Maturity Date or the date on which the Commitment of such
Lender shall be terminated as provided herein and all Letters of Credit issued
hereunder shall have expired, a letter of credit fee (an "LC Fee") computed at
a per annum rate equal to the Applicable LC Fee Rate on such Lender's Revolving
Credit Percentage of the average daily undrawn amount of the Financial Letters
of Credit or Non-Financial Letters of Credit, as the case may be, outstanding
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Revolving Credit Maturity Date or the date on which the
Commitment of such Lender shall have been terminated and all Letters of Credit
issued hereunder
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shall have expired). All LC Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days.
(c) Westinghouse agrees to pay to the Administrative Agent, for its own
account, the administrative agent's fees ("Administrative Agent's Fees")
provided for in the Administrative Agent Fee Letter at the times provided
therein.
(d) Westinghouse agrees to pay to each Issuing Lender, through the
Administrative Agent, for its own account, the applicable Issuing Lender Fees.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the relevant Lenders or to the Issuing Lenders. Once paid, none of the
Fees shall be refundable under any circumstances (other than corrections of
errors in payment).
SECTION 2.10. Interest on Loans; Eurodollar Tranches; Etc. (a) Subject to
the provisions of Section 2.11, Eurodollar Loans shall bear interest (computed
on the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to (i) in the case of each Eurodollar Revolving Credit
Loan, the Eurodollar Rate for the Interest Period in effect for such Loan plus
the Applicable Eurodollar Margin and (ii) in the case of each Eurodollar
Competitive Loan, the Eurodollar Rate for the Interest Period in effect for
such Loan plus the Margin offered by the Lender making such Loan and accepted
by Westinghouse pursuant to Section 2.3. The Eurodollar Rate for each Interest
Period shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error. The Administrative Agent shall
promptly advise Westinghouse and each Lender of such determination.
(b) Subject to the provisions of Section 2.11, ABR Loans shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate. The Alternate Base Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(c) Subject to the provisions of Section 2.11, Quoted Swingline Loans shall
bear interest (computed on the basis of the actual number of days elapsed over
a year of 360 days) at a rate per annum equal to the relevant Quoted Swingline
Rate.
(d) Subject to the provisions of Section 2.11, each Absolute Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by Westinghouse
pursuant to Section 2.3.
(e) Interest on each Loan shall be payable on each applicable Interest
Payment Date.
(f) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations, repayments and prepayments of
Eurodollar Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder in respect of Eurodollar Revolving Credit Loans shall be in
such amounts and shall be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurodollar Revolving
Credit Loans comprising each Eurodollar Tranche shall be equal to $50,000,000
or a whole multiple of $5,000,000 in excess thereof. In no event shall there
be more than 12 Eurodollar Tranches outstanding at any time.
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(g) If no election as to the Type of Revolving Credit Loan is specified in
any notice of borrowing with respect thereto, then the requested Loan shall be
an ABR Loan. If no Interest Period with respect to a Eurodollar Revolving
Credit Loan is specified in any notice of borrowing, conversion or
continuation, then Westinghouse shall be deemed to have selected an Interest
Period of one month's duration.
SECTION 2.11. Default Interest. (a) If all or a portion of the principal
amount of any Loan shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), all outstanding Loans (whether or not overdue)
shall bear interest at a rate per annum which is equal to the rate that would
otherwise be applicable thereto pursuant to the provisions of Section 2.10 plus
2% and (b) if all or a portion of any LC Disbursement, any interest payable on
any Loan or LC Disbursement or any Fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate otherwise applicable to ABR Loans pursuant to Section 2.10(b) plus
2%, in each case, with respect to clauses (a) and (b) above, from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).
SECTION 2.12. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon
Westinghouse) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or (ii) the Required Lenders shall have determined
and shall have notified the Administrative Agent that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining Eurodollar Loans during such Interest Period,
the Administrative Agent shall, as soon as practicable thereafter, give written
or telecopy notice of such determination to Westinghouse and the Lenders. In
the event of any such determination, until the Administrative Agent shall have
advised Westinghouse and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) any request by Westinghouse for a Eurodollar
Competitive Loan pursuant to Section 2.3 to be made after such determination
shall be of no force and effect and shall be denied by the Administrative
Agent, (ii) any request by Westinghouse for a Eurodollar Revolving Credit Loan
pursuant to Section 2.4 to be made after such determination shall be deemed to
be a request for an ABR Loan and (iii) any request by Westinghouse for
conversion into or a continuation of a Eurodollar Revolving Credit Loan
pursuant to Section 2.8 to be made after such determination shall have no force
and effect (in the case of a requested conversion) or shall be deemed to be a
request for a conversion into an ABR Loan (in the case of a requested
continuation). Also, in the event of any such determination, Westinghouse
shall be entitled, in its sole discretion, if the requested Loan has not been
made, to cancel its acceptance of the Competitive Bids or to cancel its
Competitive Bid Request relating thereto. Each determination by the
Administrative Agent or the Required Lenders hereunder shall be conclusive
absent manifest error.
SECTION 2.13. Termination and Optional Reduction of Commitments. Upon at
least three Business Days' prior irrevocable written or telecopy notice to the
Administrative Agent, Westinghouse may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Commitments;
provided, however, that (a) any such notice delivered prior to the Infinity
Merger Date shall specify whether or not such reduction is to be applied to the
Base Commitments; (b) each partial reduction of the Commitments shall be in a
minimum principal amount of $10,000,000 and in integral multiples of $1,000,000
in excess thereof and (c) no such termination or reduction shall be made if,
after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, (i) the Outstanding Revolving Extensions of Credit of
any Lender would
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exceed such Lender's Utilizable Commitment then in effect or (ii) the Total
Facility Exposure would exceed the Total Utilizable Commitment then in effect.
The Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.13. Except as otherwise provided in Section 2.21,
each reduction in the Commitments hereunder shall be made ratably among the
Lenders in accordance with their respective Commitments. Westinghouse agrees
to pay to the Administrative Agent for the account of the Lenders, on the date
of termination or reduction of the Commitments, the Commitment Fees on the
amount of the Commitments so terminated or reduced accrued through the date of
such termination or reduction.
SECTION 2.14. Optional Prepayments of Revolving Credit Loans. Westinghouse
may at any time and from time to time prepay the Revolving Credit Loans, in
whole or in part, without premium or penalty, upon giving irrevocable written
or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent: (i) before 10:00 a.m., New York
City time, three Business Days prior to prepayment, in the case of Eurodollar
Revolving Credit Loans, and (ii) before 10:00 a.m., New York City time, one
Business Day prior to prepayment, in the case of ABR Revolving Credit Loans.
Such notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Revolving Credit Loans, ABR Revolving Credit Loans
or a combination thereof, and, if of a combination thereof, the amount
allocable to each. If a Eurodollar Revolving Credit Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, Westinghouse
shall also pay any amounts owing pursuant to Section 2.16. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with (except in the case of
ABR Revolving Credit Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of Revolving Credit Loans shall be in an
aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000 in
excess thereof.
SECTION 2.15. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation (including any change in the reserve
percentages provided for in Regulation D) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof shall change the basis of taxation of
payments to any Lender of the principal of or interest on any Eurodollar Loan
or Absolute Rate Loan made by such Lender (other than changes in respect of
taxes imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office (or in which it holds any Eurodollar
Loan or Absolute Rate Loan) or by any political subdivision or taxing authority
therein and other than taxes that would not have been imposed but for the
failure of such Lender to comply with applicable certification, information,
documentation or other reporting requirements), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of or deposits with or for the account of such Lender, or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or any Eurodollar Loan or Absolute Rate Loan made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Loan or Absolute Rate Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) in respect of any Eurodollar Loan or
Absolute Rate Loan by an amount deemed by such Lender to be material, then
Westinghouse agrees to pay to such Lender as provided in paragraph (c) below
such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered. Notwithstanding the
foregoing, no Lender shall be entitled to request compensation under this
paragraph with respect to any Competitive Loan if the change giving rise to
such request shall, or in good faith should, have been taken into account in
formulating the Competitive Bid pursuant to which such Competitive Loan shall
have been made.
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(b) If any Lender or any Issuing Lender shall have determined that the
adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any law, rule, regulation or
guideline regarding capital adequacy or in the interpretation or administration
of any of the foregoing by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or Issuing
Lender or any Lender's or Issuing Lender's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or Issuing Lender's
capital or on the capital of such Lender's or Issuing Lender's holding company,
if any, as a consequence of this Agreement or the Loans made by such Lender or
the LC Exposure of such Lender or Letters of Credit issued by such Issuing
Lender pursuant hereto to a level below that which such Lender or Issuing
Lender or such Lender's or Issuing Lender's holding company could have achieved
but for such applicability, adoption, change or compliance (taking into
consideration such Lender's or Issuing Lender's policies and the policies of
such Lender's or Issuing Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time Westinghouse agrees to pay to such Lender or Issuing
Lender as provided in paragraph (c) below such additional amount or amounts as
will compensate such Lender or Issuing Lender or such Lender's or Issuing
Lender's holding company for any such reduction suffered.
(c) A certificate of each Lender or Issuing Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender or Issuing
Lender as specified in paragraph (a) or (b) above, as the case may be, and the
basis therefor in reasonable detail shall be delivered to Westinghouse and
shall be conclusive absent manifest error. Westinghouse shall pay each Lender
or Issuing Lender the amount shown as due on any such certificate within 30
days after its receipt of the same. Upon the receipt of any such certificate,
Westinghouse shall be entitled, in its sole discretion, if any requested Loan
has not been made, to cancel its acceptance of the relevant Competitive Bids or
to cancel the Competitive Bid Request relating thereto, subject to Section
2.16.
(d) Except as provided in this paragraph, failure on the part of any Lender
to demand compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital with respect to any period
shall not constitute a waiver of such Lender's right to demand compensation
with respect to any other period. The protection of this Section 2.15 shall be
available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed so long as it
shall be customary for Lenders affected thereby to comply therewith. No Lender
shall be entitled to compensation under this Section 2.15 for any costs
incurred or reductions suffered with respect to any date unless it shall have
notified Westinghouse that it will demand compensation for such costs or
reductions under paragraph (c) above not more than 90 days after the later of
(i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. Notwithstanding any other provision of this Section 2.15,
no Lender shall demand compensation for any increased cost or reduction
referred to above if it shall not at the time be the general policy or practice
of such Lender to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any. In the event
Westinghouse shall reimburse any Lender pursuant to this Section 2.15 for any
cost and such Lender shall subsequently receive a refund in respect thereof,
such Lender shall so notify Westinghouse and, upon its request, will pay to
Westinghouse the portion of such refund which such Lender shall determine in
good faith to be allocable to the cost so reimbursed. The covenants contained
in this Section 2.15 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
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SECTION 2.16. Indemnity. Westinghouse agrees to indemnify each Lender
against any loss or expense described below which such Lender may sustain or
incur as a consequence of (a) any failure by Westinghouse to fulfill on the
date of any borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by Westinghouse to borrow, continue or convert any Loan
hereunder after irrevocable notice of such borrowing, continuation or
conversion has been given or deemed given or Competitive Bids have been
accepted pursuant to Article II or (c) any payment, prepayment or conversion of
a Eurodollar Loan or Absolute Rate Loan required by any other provision of this
Agreement or otherwise made or deemed made, whatever the circumstances may be
that give rise to such payment, prepayment or conversion, or any transfer of
any such Loan pursuant to Section 2.21 or 8.4(b), on a date other than the last
day of the Interest Period applicable thereto. The loss or expense for which
such Lender shall be indemnified under this Section 2.16 shall be equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, converted or not
borrowed, continued or converted (assumed to be the Eurodollar Rate in the case
of Eurodollar Loans) for the period from the date of such payment, prepayment,
conversion or failure to borrow, continue or convert to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, continue
or convert, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid, converted or not borrowed, continued or converted
for such period or Interest Period, as the case may be; provided, however, that
such amount shall not include any loss of a Lender's margin or spread over its
cost of obtaining funds as described above. A certificate of any Lender
setting forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.16 shall be delivered to Westinghouse and shall be
conclusive absent manifest error. This covenant shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 2.17. Pro Rata Treatment; Funding Matters; Evidence of Debt. (a)
Except as required under Section 2.21, each payment or prepayment of principal
of any Revolving Credit Loan, each payment of interest on the Revolving Credit
Loans, each payment of the Commitment Fees pursuant to Section 2.9(a)(i), each
payment of LC Fees, and each reduction of the Commitments, shall be allocated
pro rata among the Lenders in accordance with their respective Commitments (or,
if such Commitments shall have expired or been terminated, in accordance with
the respective principal amounts of their outstanding Revolving Credit Loans).
Each Lender agrees that in computing such Lender's portion of any Loan to be
made hereunder, the Administrative Agent may, in its discretion, round such
Lender's percentage of such Loan to the next higher or lower whole Dollar
amount.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the relevant borrowing date that such Lender will not make
available to the Administrative Agent such Lender's portion of a borrowing, the
Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such borrowing in
accordance with this Agreement and the Administrative Agent may, in reliance
upon such assumption, make available to Westinghouse on such date a
corresponding amount. If and to the extent that such Lender shall not have
made such portion available to the Administrative Agent, each of such Lender
and Westinghouse agrees to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to Westinghouse until the date such
amount is repaid to the Administrative Agent at (i) in the case of
Westinghouse, the interest rate applicable at the time to the relevant Loan and
(ii) in the case of such Lender, the Federal Funds Effective Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such borrowing for the
purposes
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of this Agreement; provided that such repayment shall not release such Lender
from any liability it may have to Westinghouse for the failure to make such
Loan at the time required herein.
(c) The failure of any Lender to make any Loan shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other
Lender to make any Loan required to be made by such other Lender).
(d) Each Lender may at its option make any Eurodollar Loan by causing any
domestic or foreign branch or affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of
Westinghouse to repay such Loan in accordance with the terms of this Agreement.
(e) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by it from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan and
each Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
Westinghouse to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from Westinghouse and each Lender's share
thereof. The entries made in the accounts maintained pursuant to this
paragraph (e) shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligations of Westinghouse to repay the Loans in accordance with their
terms.
SECTION 2.18. Sharing of Setoffs. Except to the extent that this Agreement
provides for payments to be allocated to Revolving Credit Loans, Swingline
Loans or Competitive Loans, as the case may be, each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against Westinghouse, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means
(other than pursuant to any provision of this Agreement), obtain payment
(voluntary or involuntary) in respect of any category of its Loans or such
Lender's Revolving Credit Percentage of any LC Disbursement as a result of
which the unpaid principal portion of such Loans or the unpaid portion of such
Lender's Revolving Credit Percentage of the LC Disbursements shall be
proportionately less than the unpaid principal portion of such Loans or the
unpaid portion of the Revolving Credit Percentage of the LC Disbursements of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans or the Revolving Credit
Percentage of the LC Disbursements of such other Lender, so that the aggregate
unpaid principal amount of such Loans and participations in such Loans held by
each Lender or the Revolving Credit Percentage of LC Disbursements and
participations in LC Disbursements held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all such Loans or LC
Disbursements then outstanding as the principal amount of such Loans or the
Revolving Credit Percentage of LC Disbursements of each Lender prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all such Loans or LC Disbursements outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or adjustments shall
be made pursuant to this Section
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2.18 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. Any Lender holding a participation in a Loan or LC Disbursement
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by
Westinghouse to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to Westinghouse or issued a Letter of Credit for the
account of Westinghouse in the amount of such participation.
SECTION 2.19. Payments. (a) Except as otherwise expressly provided
herein, Westinghouse shall make each payment (including principal of or
interest on any Loan or any Fees or other amounts) hereunder not later than
12:00 noon, New York City time, on the date when due in Dollars to the
Administrative Agent at its offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in
immediately available funds.
(b) Whenever any payment (including principal of or interest on any Loan or
any Fees or other amounts) hereunder shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by Westinghouse hereunder
to or for the benefit of a Non-U.S. Person shall be made, in accordance with
Section 2.19, free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto imposed by or on behalf of the United States
or any political subdivision thereof, excluding taxes imposed on (or measured
by) such Non-U.S. Person's net income or net receipts, franchise taxes, taxes
on doing business or taxes imposed on capital or net worth (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If Westinghouse shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder to a Non-U.S. Person, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.20) such
Non-U.S. Person shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) Westinghouse shall make such deductions
and (iii) Westinghouse shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance with applicable
law.
(b) Westinghouse agrees to pay and reimburse on demand all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
Governmental Authority in respect of this Agreement, any of the Loans or the
Letters of Credit (all such taxes, assessments or charges hereinafter referred
to as "Other Taxes").
(c) Westinghouse will indemnify each Lender (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed by the applicable jurisdiction on amounts
payable under this Section 2.20) paid by such Lender (or Transferee) or the
Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date such Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by Westinghouse in respect of any payment to a Non-U.S. Person,
Westinghouse will furnish to the
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Administrative Agent, at its address referred to in Section 8.1 for delivery to
such Non-U.S. Person, the original or a certified copy of a receipt (if
available) evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder and of all other amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a citizen or resident of the
United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Person") shall deliver to Westinghouse and the
Administrative Agent (or, in the case of a participant, to the Lender from
which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form 1001 or Form 4224, or, in the case of a
Non-U.S. Person claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Person delivers a Form W-8, an annual certificate
representing that such Non-U.S. Person is not a "bank" for purposes of Section
881(c) of the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of Westinghouse and is not a controlled
foreign corporation related to Westinghouse (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Person claiming complete exemption from U.S. federal withholding tax on all
payments by Westinghouse under this Agreement. Such forms shall be delivered
by each Non-U.S. Person promptly after it becomes a party to this Agreement
(or, in the case of any participant, promptly after the date such participant
purchases the related participation). In addition, each Non-U.S. Person shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Person. Each Non-U.S. Person shall
promptly notify Westinghouse at any time it determines that it is no longer in
a position to provide any previously delivered certificate to Westinghouse (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Unless Westinghouse and the Administrative Agent (or, in the case of
a participant, the Lender from which the related participation shall have been
purchased) have received forms or other documents satisfactory to them
indicating that payments hereunder are not subject to United States withholding
tax, Westinghouse or the Administrative Agent shall withhold taxes from such
payments at the applicable statutory rate in the case of payments of interest
to or for any Lender (or Transferee) that is a Non-U.S. Person.
Notwithstanding any other provision of this Section 2.20(f), a Non-U.S. Person
shall not be required to deliver any form pursuant to this Section 2.20(f) that
such Non-U.S. Person is not legally able to deliver by reason of the adoption
of any law, rule or regulation, or any change in any law, rule or regulation or
in the interpretation thereof, in each case occurring after the date such
Non-U.S. Person becomes a Lender (or Transferee).
(g) Westinghouse shall not be required to pay any additional amounts to any
Non-U.S. Person in respect of United States withholding tax pursuant to
paragraph (a) above (i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Non-U.S. Person to comply with the
provisions of paragraph (f) above or (ii) in the case of a Transferee, to the
extent such additional amounts exceed the additional amounts that would have
been payable had no transfer or assignment to such Transferee occurred;
provided, however, that Westinghouse shall be required to pay those amounts to
any Lender (or Transferee) that it was required to pay hereunder prior to the
failure of such Lender (or Transferee) to comply with the provisions of such
paragraph (f).
SECTION 2.21. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.15 or Section 2.20 shall use reasonable efforts
(consistent with legal and regulatory
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restrictions) to file any certificate or document requested by Westinghouse or
to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue and would not, in the sole
determination of such Lender (or Transferee), be otherwise disadvantageous to
such Lender (or Transferee).
(b) In the event that (x) any Lender shall have delivered a notice or
certificate pursuant to Section 2.15, (y) Westinghouse shall be required to
make additional payments to any Lender under Section 2.20, or (z) any Lender (a
"Non-Consenting Lender") shall withhold its consent to any amendment described
in clause (i) or (ii) of Section 8.8(b) as to which consents have been obtained
from Lenders having Total Facility Percentages aggregating at least 90%,
Westinghouse shall have the right, at its own expense, upon notice to such
Lender (or Lenders) and the Administrative Agent, (i) to terminate the
Commitments of such Lender (except in the case of clause (z) above) or (ii) to
require such Lender (or, in the case of clause (z) above, each Non-Consenting
Lender) to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 8.4) all its interests, rights and
obligations under this Agreement to one or more other financial institutions
acceptable to the Administrative Agent (which approval shall not be
unreasonably withheld) which shall assume such obligations; provided that (w)
in the case of any replacement of Non-Consenting Lenders, each assignee shall
have consented to the relevant amendment, (x) no such termination or assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority, (y) Westinghouse or the assignee (or assignees), as the case may be,
shall pay to each affected Lender in immediately available funds on the date of
such termination or assignment the principal of and interest accrued to the
date of payment on the Loans made by it hereunder and all other amounts accrued
for its account or owed to it hereunder and (z) Westinghouse may not terminate
Commitments representing more than 10% of the original aggregate Commitments
pursuant to this paragraph (b).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Westinghouse represents and warrants to each of the Lenders that:
SECTION 3.1. Corporate Existence. Each of Westinghouse and each Material
Subsidiary: (a) is a corporation, partnership or other entity duly organized
and validly existing under the laws of the jurisdiction of its organization;
(b) has all requisite corporate or other power, and has all material
governmental licenses, authorizations, consents and approvals, necessary to own
its assets and carry on its business as now being or as proposed to be
conducted, except where the failure to have any of the foregoing would not
result in a Material Adverse Effect; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would result in a
Material Adverse Effect.
SECTION 3.2. Financial Condition. (a) Each of (i) the consolidated
balance sheet of Westinghouse and its Consolidated Subsidiaries as at December
31, 1995, and the related consolidated statements of income and cash flows of
Westinghouse and its Consolidated Subsidiaries for the fiscal year ended on
such date, with the opinion thereon of Price Waterhouse LLP, and (ii) the
consolidated balance sheets of Westinghouse and its Consolidated Subsidiaries
as at March 31, 1996 and as at June 30, 1996, and the related consolidated
statements of income and cash flows of Westinghouse and its Consolidated
Subsidiaries for the fiscal quarters ended on such dates, all certified by a
Financial Officer of Westinghouse, heretofore furnished to each of the Lenders,
fairly present the consolidated
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financial condition of Westinghouse and its Consolidated Subsidiaries as at
such dates and the consolidated results of their operations for the fiscal year
or fiscal quarter ended on such dates in accordance with GAAP (subject, in the
case of the statements referred to in clause (ii) above, to year-end audit
adjustments). Neither Westinghouse nor any of its Material Subsidiaries had on
such dates any known material contingent liability, except as referred to or
reflected or provided for in the Exchange Act Report or in such balance sheets
(or the notes thereto) as at such dates.
(b) There has been no material adverse change in the consolidated financial
condition, operations, assets, business or prospects taken as a whole of
Westinghouse and its Consolidated Subsidiaries from that set forth in the
consolidated financial statements of Westinghouse for the fiscal year ended
December 31, 1995 referred to in Section 3.2(a) (it being agreed, however, that
none of (i) the reduction by any rating agency of any rating assigned to
Indebtedness of Westinghouse, (ii) non-cash provisions for loan losses and
additions to valuation allowances, (iii) any change in GAAP or compliance
therewith and (iv) any legal or arbitral proceedings which have been disclosed
in the Exchange Act Report, whether threatened, pending, resulting in a
judgment or otherwise, prior to the time a final judgment for the payment of
money shall have been recorded against Westinghouse or any Material Subsidiary
by any Governmental Authority having jurisdiction, and the judgment is non-
appealable (or the time for appeal has expired) and all stays of execution have
expired or been lifted shall, in and of itself, constitute such a material
adverse change).
SECTION 3.3. Litigation. Except as disclosed to the Lenders in the
Exchange Act Report filed prior to the Closing Date or otherwise disclosed in
writing to the Lenders prior to the Closing Date, there are no legal or
arbitral proceedings, or any proceedings by or before any Governmental
Authority, pending or (to the knowledge of Westinghouse) threatened against
Westinghouse or any of its Material Subsidiaries which have resulted in a
Material Adverse Effect (it being agreed that any legal or arbitral proceedings
which have been disclosed in the Exchange Act Report, whether threatened,
pending, resulting in a judgment or otherwise, prior to the time a final
judgment for the payment of money shall have been recorded against Westinghouse
or any Material Subsidiary by any Governmental Authority having jurisdiction,
and the judgment is non-appealable (or the time for appeal has expired) and all
stays of execution have expired or been lifted shall not, in and of itself, be
deemed to result in a Material Adverse Effect). The "Exchange Act Report"
shall mean, collectively, the Annual Report of each of Westinghouse and
Infinity on Form 10-K for the year ended December 31, 1995, each Report on Form
8-K of each of Westinghouse and Infinity filed subsequent to December 31, 1995
and delivered to the Lenders prior to the date hereof, and the Reports of
Westinghouse and Infinity on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996.
SECTION 3.4. No Breach, etc. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or By-laws (or other
equivalent organizational documents) of Westinghouse, or any applicable law or
regulation, or any order, writ, injunction or decree of any Governmental
Authority, or any material agreement or instrument to which Westinghouse or any
of its Material Subsidiaries is a party or by which any of them is bound or to
which any of them is subject, or constitute a default under any such agreement
or instrument, or result in the creation or imposition of any Lien upon any of
the revenues or assets of Westinghouse or any of its Material Subsidiaries
pursuant to the terms of any such agreement or instrument. Neither
Westinghouse nor any of its Material Subsidiaries is in default under or with
respect to any of its material contractual obligations in any respect which
would have a Material Adverse Effect.
SECTION 3.5. Corporate Action. Westinghouse has all necessary corporate
power and authority to execute, deliver and perform its obligations under this
Agreement; the execution,
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delivery and performance by Westinghouse of this Agreement have been duly
authorized by all necessary corporate action on its part; and this Agreement
has been duly and validly executed and delivered by Westinghouse and
constitutes a legal, valid and binding obligation of Westinghouse, enforceable
in accordance with its terms except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 3.6. Approvals. No authorizations, approvals or consents of, and
no filings or registrations with, any Governmental Authority are necessary for
the execution, delivery or performance by Westinghouse of this Agreement or for
the validity or enforceability hereof.
SECTION 3.7. ERISA. Westinghouse and, to the best of its knowledge, its
ERISA Affiliates have fulfilled their respective obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the currently applicable provisions of
ERISA and the Code except where any failure or non-compliance would not result
in a Material Adverse Effect.
SECTION 3.8. Taxes. As of the Closing Date, United States Federal income
tax returns of Westinghouse and its Material Subsidiaries have been examined
and closed through the fiscal year of Westinghouse ended December 31, 1989.
Westinghouse and its Material Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by them and have paid all taxes shown as due on such returns or pursuant
to any assessment received by Westinghouse or any of its Material Subsidiaries,
except those being contested and reserved against in accordance with Section
5.2.
SECTION 3.9. Investment Company Act. Westinghouse is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 3.10. Public Utility Holding Company Act. Westinghouse is not
subject to regulation as a "holding company", subject to regulation as an
"affiliate" of a "holding company", or subject to regulation as a "subsidiary
company" of a "holding company", under the Public Utility Holding Company Act
of 1935, as amended.
SECTION 3.11. Hazardous Materials. Westinghouse and each of its
Subsidiaries have obtained all permits, licenses and other authorizations which
are required under all Environmental Laws, except to the extent failure to have
any such permit, license or authorization has not resulted in a Material
Adverse Effect. Westinghouse and each of its Subsidiaries are in compliance
with the terms and conditions of all such permits, licenses and authorizations,
and are also in compliance with other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable Environmental Law or in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
would not result in a Material Adverse Effect.
SECTION 3.12. Material Subsidiaries. Set forth in Schedule 3.12 is a
complete and correct list, as of the Closing Date, of all Material
Subsidiaries.
SECTION 3.13. No Material Misstatements. No written information, report,
financial statement, exhibit or schedule (the "Information") furnished by or on
behalf of Westinghouse to the
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Administrative Agent or any Lender in connection with the syndication of the
Commitments or the negotiation of this Agreement or included in this Agreement
or delivered pursuant hereto contained as of the time it was furnished any
material misstatement of fact or omitted as of such time to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading;
provided that the foregoing representation and warranty is made only to the
best of Westinghouse's knowledge in the case of Information relating to
Infinity and its Subsidiaries furnished prior to the Infinity Merger Date
(which knowledge, until the Infinity Merger Date, will be principally based
upon public disclosure by Infinity); and provided, further, that with respect
to Information consisting of statements, estimates and projections regarding
the future performance of Westinghouse, Infinity and their respective
Subsidiaries ("Projections"), no representation or warranty is made other than
that such Projections have been prepared in good faith utilizing due and
careful consideration and the best information available to Westinghouse at the
time of preparation thereof.
SECTION 3.14. Ownership of Property. Each of Westinghouse and each of its
Material Subsidiaries has good record and marketable title in fee simple to, or
a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other Property, except to the extent that
the failure to have such title would not result in a Material Adverse Effect.
SECTION 3.15. Intellectual Property. Each of Westinghouse and each of
its Material Subsidiaries maintains, and is in compliance in all material
respects with, appropriate policies and procedures for establishing and
protecting their respective rights in Intellectual Property. Except as, in the
aggregate, would not result in a Material Adverse Effect, (a) each of
Westinghouse and each of its Material Subsidiaries owns, or is licensed to use,
all Intellectual Property necessary for the conduct of their respective
businesses; (b) no claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does Westinghouse know of
any valid basis for any such claim; and (c) to the best knowledge of
Westinghouse, the use of the Intellectual Property by Westinghouse and its
Material Subsidiaries does not infringe on the rights of any Person.
SECTION 3.16. FCC Matters. Except as, in the aggregate, would not result
in a Material Adverse Effect: (a) Westinghouse and each of its Material
Subsidiaries have all the FCC Licenses necessary for the conduct of their
respective businesses; (b) Westinghouse and each of its Material Subsidiaries
are in substantial compliance with the Communications Act and with the rules
and regulations thereunder; (c) neither Westinghouse nor any of its Material
Subsidiaries is a party to, or has any knowledge of, any pending investigation,
notice of violation, order or complaint issued with respect to it by or before
the FCC; and (d) Westinghouse and its Material Subsidiaries have no reason to
believe that any FCC License will not be renewed in the ordinary course of
business.
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND LENDING
The obligations of the Lenders to make Loans and the obligations of the
Issuing Lenders to issue Letters of Credit hereunder are subject to the
satisfaction of the conditions set forth below.
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SECTION 4.1. Initial Credit Event. The obligation of each Lender to make
its initial Loan is subject to the satisfaction of the following conditions
(the date on which all of such conditions shall have been satisfied, the
"Closing Date"):
(a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by a duly authorized officer of
Westinghouse.
(b) Closing Certificate. The Administrative Agent shall have received a
Closing Certificate, substantially in the form of Exhibit F, of Westinghouse,
with appropriate insertions and attachments.
(c) Existing Westinghouse Credit Agreement. The commitments under the
Existing Westinghouse Credit Agreement, and the Guarantee Agreement and Stock
Pledge Agreement referred to therein, shall have been permanently terminated
and all loans and other obligations under or in connection therewith shall
have been paid in full or shall be paid in full with the proceeds of the
initial Loans hereunder. Without affecting any terms of the Existing
Westinghouse Credit Agreement which expressly survive the termination
thereof, each Lender party to the Existing Westinghouse Credit Agreement
hereby waives any requirement of advance notice of such termination, or of
prepayment of the loans, contained in the Existing Westinghouse Credit
Agreement and hereby agrees that the Existing Westinghouse Credit Agreement
and the commitments thereunder shall terminate simultaneously with the making
of the Loans on the Closing Date.
(d) Financial Statements. The Administrative Agent shall have received,
with a copy for each Lender, each of the financial statements referred to in
Section 3.2(a).
(e) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions (with a copy for each Lender):
(i) the executed legal opinion of Xxxxx X. Xxxxxxxx, Senior Vice
President and General Counsel of Westinghouse, dated the Closing Date and
addressed to the Administrative Agent and the Lenders, substantially in the
form of Exhibit E-1;
(ii) the executed legal opinion of an Assistant General Counsel or
Associate General Counsel of Westinghouse licensed to practice law in the
State of New York, dated the Closing Date and addressed to the
Administrative Agent and the Lenders, substantially in the form of Exhibit
E-2; and
(iii) the executed legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
to the Agents, dated the Closing Date and addressed to the Administrative
Agent and the Lenders, substantially in the form of Exhibit E-3.
SECTION 4.2. All Credit Events. The obligation of each Lender to make each
Loan, and the obligation of each Issuing Lender to issue each Letter of Credit,
are subject to the satisfaction of the following conditions.
(a) The Administrative Agent shall have received a request for, or notice
of, such Credit Event if and as required by Section 2.3, 2.4, 2.6 or 2.7, as
applicable.
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(b) Each of the representations and warranties made by Westinghouse in
Article III, or in any certificate delivered pursuant hereto, shall be true
and correct in all material respects on and as of the date of such Credit
Event with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an earlier
date in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date.
(c) At the time of and immediately after giving effect to such Credit Event
no Default or Event of Default shall have occurred and be continuing.
(d) After giving effect to such Credit Event, (i) the Outstanding Revolving
Extensions of Credit of each Lender shall not exceed such Lender's Utilizable
Commitment then in effect and (ii) the Total Facility Exposure shall not
exceed the Total Utilizable Commitment then in effect.
Each Credit Event shall be deemed to constitute a representation and warranty
by Westinghouse on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.2.
ARTICLE V.
COVENANTS
Westinghouse covenants and agrees with each Lender that, as long as the
Commitments shall be in effect or the principal of or interest on any Loan
shall be unpaid, or there shall be any Aggregate LC Exposure, unless the
Required Lenders shall otherwise consent in writing:
SECTION 5.1. Financial Statements. Westinghouse shall deliver to each of
the Lenders:
(a) within 55 days after the end of each of the first three quarterly
fiscal periods of each fiscal year of Westinghouse, consolidated statements
of income and cash flows of Westinghouse and its Consolidated Subsidiaries
for such period and for the period from the beginning of the respective
fiscal year to the end of such period, and the related consolidated balance
sheet as at the end of such period, setting forth in each case in comparative
form the corresponding consolidated figures for the corresponding period in
the preceding fiscal year, accompanied by a certificate of a Financial
Officer of Westinghouse which certificate shall state that such financial
statements fairly present the consolidated financial condition and results of
operations of Westinghouse and its Consolidated Subsidiaries in accordance
with GAAP as at the end of, and for, such period, subject to normal year-end
audit adjustments (provided that the requirement herein for the furnishing of
such quarterly financial statements may be fulfilled by providing to the
Lenders the report of Westinghouse to the SEC on Form 10-Q for the applicable
quarterly period, accompanied by the officer's certificate described in the
last sentence of this Section 5.1);
(b) within 105 days after the end of each fiscal year of Westinghouse,
consolidated statements of income and cash flows of Westinghouse and its
Consolidated Subsidiaries for such year and the related consolidated balance
sheet as at the end of such year, setting forth in comparative form the
corresponding consolidated figures for the preceding fiscal year, and
accompanied by an opinion thereon (unqualified as to the scope of the audit)
of independent certified public accountants of recognized national standing,
which opinion shall state that such
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consolidated financial statements fairly present the consolidated financial
condition and results of operations of Westinghouse and its Consolidated
Subsidiaries as at the end of, and for, such fiscal year (provided that the
requirement herein for the furnishing of annual financial statements may be
fulfilled by providing to the Lenders the report of Westinghouse to the SEC
on Form 10-K for the applicable fiscal year);
(c) promptly upon their becoming publicly available, copies of all
registration statements and regular periodic reports (including without
limitation any and all reports on Form 8-K), if any, which Westinghouse or
any of its Subsidiaries shall have filed with the SEC or any national
securities exchange;
(d) promptly upon the mailing thereof to the shareholders of Westinghouse
generally, copies of all financial statements, reports and proxy statements
so mailed;
(e) within 30 days after a Responsible Officer of Westinghouse knows or has
reason to believe that any of the events or conditions specified below with
respect to any Plan or Multiemployer Plan have occurred or exist which would
reasonably be expected to result in a Material Adverse Effect, a statement
signed by a senior financial officer of Westinghouse setting forth details
respecting such event or condition and the action, if any, which Westinghouse
or its ERISA Affiliate proposes to take with respect thereto (and a copy of
any report or notice required to be filed with or given to PBGC by
Westinghouse or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and the
regulations issued thereunder, with respect to a Plan, as to which PBGC has
not by regulation waived the requirement of Section 4043(a) of ERISA that it
be notified within 30 days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA shall be a reportable event regardless of the issuance
of any waiver in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by Westinghouse or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by PBGC with respect to
such Multiemployer Plan;
(iv) the complete or partial withdrawal by Westinghouse or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer Plan, or
the receipt by Westinghouse or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against Westinghouse or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days; and
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(vi) a failure to make a required installment or other payment with
respect to a Plan (within the meaning of Section 412(n) of the Code), in
which case the notice required hereunder shall be provided within 10 days
after the due date for filing notice of such failure with the PBGC;
(f) promptly after a Responsible Officer of Westinghouse knows or has
reason to believe that any Default or Event of Default has occurred, a notice
of such Default or Event of Default describing it in reasonable detail and,
together with such notice or as soon thereafter as possible, a description of
the action that Westinghouse has taken and proposes to take with respect
thereto;
(g) promptly after a Responsible Officer of Westinghouse knows that any
change has occurred in Westinghouse's Debt Rating by either Rating Agency, a
notice describing such change; and
(h) promptly from time to time such other information regarding the
financial condition, operations or business of Westinghouse or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as any
Lender through the Administrative Agent may reasonably request.
Westinghouse will furnish to the Administrative Agent and each Lender, at the
time it furnishes each set of financial statements pursuant to paragraph (a) or
(b) above, a certificate (which may be a copy in the case of each Lender) of a
Financial Officer of Westinghouse (a "Compliance Certificate") (i) to the
effect that no Default or Event of Default has occurred and is continuing (or,
if any Default or Event of Default has occurred and is continuing, describing
it in reasonable detail and describing the action that Westinghouse has taken
and proposes to take with respect thereto), and (ii) setting forth in
reasonable detail the computations (including any pro forma calculations as
described in Section 1.2(c)) necessary to determine whether Westinghouse is in
compliance with the Financial Covenants as of the end of the respective
quarterly fiscal period or fiscal year.
SECTION 5.2. Corporate Existence, Etc. Westinghouse will, and will cause
each of its Material Subsidiaries to, preserve and maintain its legal existence
and all of its material rights, privileges and franchises (provided that (a)
nothing in this Section 5.2 shall prohibit any transaction expressly permitted
under Section 5.4 and (b) Westinghouse or such Material Subsidiary shall not be
required to preserve or maintain any such right, privilege or franchise if the
Board of Directors of Westinghouse or such Material Subsidiary, as the case may
be, shall determine that the preservation or maintenance thereof is no longer
desirable in the conduct of the business of Westinghouse or such Material
Subsidiary, as the case may be); comply with the requirements of all applicable
laws, rules, regulations and orders of Governmental Authorities (including,
without limitation, all Environmental Laws) and with all contractual
obligations if failure to comply with such requirements or obligations would
reasonably be expected to result in a Material Adverse Effect; pay and
discharge all material taxes, assessments, governmental charges, levies or
other obligations of whatever nature imposed on it or on its income or profits
or on any of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge, levy or other obligation the
payment of which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained; maintain all its Property
used or useful in its business in good working order and condition, ordinary
wear and tear excepted, all as in the judgment of Westinghouse or such Material
Subsidiary may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times (provided
that Westinghouse or such Material Subsidiary shall not be required to maintain
any such Property if the failure to maintain any such Property is, in
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the judgment of Westinghouse or such Material Subsidiary, desirable in the
conduct of the business of Westinghouse or such Material Subsidiary); keep
proper books of records and accounts in which entries that are full, true and
correct in all material respects shall be made in conformity with GAAP; and
permit representatives of any Lender, during normal business hours upon
reasonable advance notice, to inspect any of its books and records and to
discuss its business and affairs with its Financial Officers or their
designees, all to the extent reasonably requested by such Lender.
SECTION 5.3. Insurance. Westinghouse will, and will cause each of its
Material Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business and similarly situated against loss or damage of
the kinds and in the amounts consistent with prudent business practice and
carry such other insurance as is consistent with prudent business practice (it
being understood that self-insurance shall be permitted to the extent
consistent with prudent business practice).
SECTION 5.4. Prohibition of Fundamental Changes. Westinghouse will not,
and will not permit any of its Material Subsidiaries to (i) enter into any
transaction of merger, consolidation, liquidation or dissolution or (ii)
Dispose of, in one transaction or a series of related transactions, all or a
substantial part (determined by reference to Westinghouse and its Subsidiaries
taken as a whole) of its business or Property, whether now owned or hereafter
acquired (excluding (x) financings by way of sales of receivables or inventory,
(y) inventory or other Property Disposed of in the ordinary course of business
and (z) obsolete or worn-out Property, tools or equipments no longer used or
useful in its business). Notwithstanding the foregoing provisions of this
Section 5.4:
(a) any Subsidiary of Westinghouse may be merged or consolidated with or
into: (i) Westinghouse if Westinghouse shall be the continuing or surviving
corporation or (ii) any other such Subsidiary; provided that if any such
transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, such
Wholly Owned Subsidiary shall be the continuing or surviving corporation;
(b) any Subsidiary of Westinghouse may distribute, dividend or Dispose of
any of or all its Property (upon voluntary liquidation or otherwise) to
Westinghouse or a Wholly Owned Subsidiary of Westinghouse;
(c) Westinghouse may merge or consolidate with or into any other Person if
(i) either (x) Westinghouse is the continuing or surviving corporation or (y)
the corporation formed by such consolidation or into which Westinghouse is
merged shall be a corporation organized under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume the obligations of Westinghouse hereunder pursuant to a written
agreement and shall have delivered to the Administrative Agent such agreement
and a certificate of a Responsible Officer and an opinion of counsel to the
effect that such merger or consolidation complies with this Section 5.4(c),
and (ii) after giving effect thereto and to any repayment of Loans to be made
upon consummation thereof (it being expressly understood that no repayment of
Loans is required solely by virtue thereof), no Default or Event of Default
shall have occurred and be continuing;
(d) any Subsidiary of Westinghouse may merge or consolidate with or into
any other Person if, after giving effect thereto and to any repayment of
Loans to be made upon the consummation thereof (it being expressly understood
that no repayment of Loans is required solely by virtue thereof), no Default
or Event of Default shall have occurred and be continuing; and
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(e) Westinghouse or any Subsidiary of Westinghouse may Dispose of its
Property if, after giving effect thereto and to any repayment of Loans to be
made upon the consummation thereof (it being expressly understood that no
repayment of Loans is required solely by virtue thereof), no Default or Event
of Default shall have occurred and be continuing.
SECTION 5.5. Limitation on Liens. Westinghouse will not, and will not
permit any of its Material Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its Property, or enter into any Sale/Leaseback with
respect to any such Property, whether now owned or hereafter acquired; provided
that the foregoing restrictions shall not apply to:
(a) Liens imposed by any Governmental Authority for taxes, assessments or
charges not yet due and payable or which are being contested in good faith
and by appropriate proceedings if adequate reserves with respect thereto are
maintained;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
architects' or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings;
(c) Liens securing judgments or to perfect an appeal of any order or decree
but only to the extent, for an amount and for a period not resulting in an
Event of Default under paragraph (h) of Article VI;
(d) pledges or deposits under worker's compensation, unemployment insurance
and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations to secure
surety, appeal or performance bonds and contractual and other obligations of
a like nature incurred in the ordinary course of business and not involving
the borrowing of money;
(f) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Property
or minor imperfections in title thereto and Liens under leases and subleases
which, in the aggregate, are not material in amount, and which do not
interfere in any material respects with the ordinary conduct of the business
of Westinghouse and its Subsidiaries taken as a whole;
(g) Liens on Property of any Subsidiary of Westinghouse or of any Person
which is or was merged with or into Westinghouse or any Subsidiary thereof,
provided that such Liens are or were in existence at the time such Person
becomes or became a Subsidiary of Westinghouse or such Person merged with or
into Westinghouse or any Subsidiary thereof, as the case may be, were not
created in anticipation thereof other than to finance the purchase thereof
and are not spread to cover any Property other than the Property covered at
the time of the relevant transaction;
(h) Liens upon real and/or personal property acquired (by purchase,
construction, foreclosure, deed in lieu of foreclosure or otherwise) by
Westinghouse or any of its Subsidiaries, each of which Liens either (A)
existed on such Property before the time of its acquisition and was not
created in anticipation thereof or (B) was created solely for the purpose of
securing Indebtedness representing, or incurred to finance, refinance or
refund, all
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or a part of the cost (including the cost of construction) of such Property
or improvements thereon; provided that no such Lien shall extend to or cover
any Property of Westinghouse or such Subsidiary other than the respective
Property so acquired and improvements thereon;
(i) mortgages on Property securing indebtedness in favor of the United
States of America or any state thereof or any department, agency or
instrumentality or political subdivision of the United States of America or
any state thereof, incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the Property subject to
such mortgages (including without limitation such debt secured by such
mortgages in connection with pollution control, industrial revenue or similar
financings) or incurred to secure progress, advance or other payments
pursuant to any contract or provision of any statute;
(j) Liens securing Indebtedness owed to Westinghouse or to any Wholly Owned
Subsidiary of Westinghouse;
(k) Liens (i) upon the receivables and inventory of Westinghouse or any of
its Subsidiaries to secure Indebtedness resulting from financings of such
receivables and inventory in an aggregate amount not greater than
$800,000,000 less the aggregate amount of Indebtedness that is secured
pursuant to clause (ii) below, provided that the terms of such Indebtedness
do not provide for any recourse to Westinghouse or any Material Subsidiary
(except to the extent of breaches of representations and warranties of
Westinghouse or any of its Subsidiaries in connection with such financings
and other recourse customary in connection with "off-balance sheet"
financings) and (ii) upon the Property of Westinghouse to secure Indebtedness
of Westinghouse in an aggregate amount not greater than $250,000,000;
(l) Sale/Leasebacks consummated prior to the Closing Date;
(m) any Sale/Leaseback of CBS's headquarters building located at 00 Xxxx
00xx Xxxxxx xx Xxx Xxxx Xxxx;
(n) any Sale/Leaseback of assets of CBS owned on the Closing Date and
listed on Schedule 5.5(n);
(o) additional Liens upon real and/or personal property, and additional
Sale/Leasebacks, provided that the sum of (i) the aggregate principal amount
of the obligations secured by such Liens (other than Indebtedness as defined
in clause (f) of the definition thereof which has not been assumed by
Westinghouse or any of its Subsidiaries and where the Lien relates to
Property acquired by Westinghouse or any of its Subsidiaries in satisfaction,
in whole or in part, of indebtedness to Westinghouse or any of its
Subsidiaries, in the ordinary course of business (any such Indebtedness,
"Specified Section 5.5(o) Indebtedness")) and (ii) the aggregate
Sale/Leaseback Attributable Debt with respect to such Sale/Leasebacks shall
not exceed $250,000,000 at any one time outstanding;
(p) any extension, renewal or replacement of the foregoing; provided,
however, that, except to the extent otherwise permitted by this Section 5.5
(including Section 5.5(o)), the Liens permitted under this paragraph shall
not be spread to cover any additional Indebtedness or Property (other than a
substitution of like Property or improvements on such Property or other
Property of equivalent value); and
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(q) Liens upon real and/or personal property owned at the date hereof by WCI
or LW Real Estate Investments, L.P.
SECTION 5.6. Limitation on Subsidiary Indebtedness; Termination of Existing
Infinity Credit Agreement. (a) Westinghouse will not permit any of its
Subsidiaries to create, incur, assume or suffer to exist any Indebtedness
(which includes, for the purposes of this Section 5.6(a), any preferred stock),
except (i) Indebtedness of CBS outstanding on the Closing Date and in the
approximate amounts set forth on Schedule 5.6 (but not any refinancing,
refunding or other replacement thereof), (ii) Excluded Indebtedness, (iii)
Leveraged Spin-Off Indebtedness and (iv) other Indebtedness in an aggregate
principal amount not to exceed $300,000,000 at any one time outstanding.
(b) On the Infinity Merger Date, Westinghouse shall cause to be permanently
terminated the commitments under the Existing Infinity Credit Agreement and
shall cause to be repaid all Indebtedness outstanding thereunder or under the
Loan Documents referred to therein. Without affecting any terms of the
Existing Infinity Credit Agreement which expressly survive the termination
thereof, each Lender party to the Existing Infinity Credit Agreement hereby
waives any requirement of advance notice of such termination, or of prepayment
of the loans, contained in the Existing Infinity Credit Agreement and hereby
agrees that the Existing Infinity Credit Agreement and the commitments
thereunder shall automatically terminate on the Infinity Merger Date.
SECTION 5.7. Consolidated Leverage Ratio, etc. (a) Westinghouse will not
permit the Consolidated Leverage Ratio at the end of any period of four
consecutive fiscal quarters ending during any period set forth below to be
greater than the ratio set forth below opposite such period:
Period Ratio
------ -----
12/31/96 - 9/30/97 6.00 to 1
12/31/97 - 3/31/98 5.00 to 1
6/30/98 - 9/30/98 4.25 to 1
12/31/98 - 9/30/99 3.50 to 1
12/31/99 and thereafter 3.00 to 1
; provided, that the ratio set forth above applicable to the Test Periods
ending June 30, 1997 and September 30, 1997, as the case may be, shall be
reduced from 6.00 to 1 to 5.75 to 1 in the event that the Infinity Merger Date
shall have occurred on or prior to the last day of the Pro Forma Period
relating to the Compliance Certificate delivered in respect of the fiscal
quarter ending on such date.
(b) Westinghouse will not permit Consolidated Total Funded Indebtedness to
exceed $5,750,000,000 as at September 30, 1996.
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SECTION 5.8. Consolidated Coverage Ratio. Westinghouse will not permit the
Consolidated Coverage Ratio for any period of four consecutive fiscal quarters
ending during any period set forth below to be less than the ratio set forth
below opposite such period:
Period Ratio
------ -----
9/30/96 - 3/31/97 1.75 to 1
6/30/97 - 9/30/97 2.00 to 1
12/31/97 - 9/30/98 2.50 to 1
12/31/98 and thereafter 3.00 to 1
; provided, that the ratio set forth above applicable to the Test Periods
ending December 31, 1996 and March 31, 1997, as the case may be, shall be
increased from 1.75 to 1 to 2.00 to 1 in the event that the Infinity Merger
Date shall have occurred on or prior to the last day of the Pro Forma Period
relating to the Compliance Certificate delivered in respect of the fiscal year
or fiscal quarter ending on such date.
SECTION 5.9. Minimum Consolidated Net Worth. Westinghouse will not permit
Consolidated Net Worth on the last day of any fiscal quarter ending after the
Closing Date to be less than the sum of (a) 75% of Consolidated Net Worth on
June 30, 1996 (the "Net Worth Commencement Date"), (b) 50% of cumulative
Consolidated Net Income for each fiscal quarter of Westinghouse occurring after
the Net Worth Commencement Date for which Consolidated Net Income is positive
and (c) 100% of the amount by which total shareholders' equity of Westinghouse
and its Consolidated Subsidiaries increases as a result of the Infinity Merger,
including, without limitation, as a result of the issuance of Capital Stock of
Westinghouse in connection with the Infinity Merger or as a result of pooling
of interests accounting for the Infinity Merger; provided that, in the case of
warrants, options and similar deferred issuances of common stock, the increase
pursuant to this clause (c) attributable thereto shall not occur until common
stock is issued in connection with the exercise thereof.
SECTION 5.10. Use of Proceeds. Westinghouse will use the proceeds of the
Loans and will use the Letters of Credit hereunder solely to refinance the
indebtedness of Westinghouse under the Existing Credit Agreement, to pay fees
and expenses relating to the Infinity Merger, to refinance certain indebtedness
of Infinity and for general corporate purposes (in each case in compliance with
all applicable legal and regulatory requirements, including, without
limitation, Regulations G and U and the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, and the regulations
thereunder), provided that neither any Agent nor any Lender shall have any
responsibility as to the use of any of such proceeds.
SECTION 5.11. Transactions with Affiliates. Westinghouse will not, and
will not permit any of its Material Subsidiaries to, directly or indirectly
enter into any material transaction with any Affiliate of Westinghouse except
on terms at least as favorable to Westinghouse or such Subsidiary as it could
obtain on an arm's-length basis.
SECTION 5.12. Limitation on Negative Pledge Clauses. Westinghouse will
not, and will not permit any of its Material Subsidiaries to, enter into any
contractual obligation (a "Lien Restriction") in connection with the incurrence
of Indebtedness for Borrowed Money which, with respect to any material asset of
Westinghouse or any of its Material Subsidiaries, would prohibit Westinghouse
or such Material Subsidiary from granting a Lien on such asset as collateral
security for the obligations of Westinghouse hereunder or, as applicable, a
Guarantee of such obligations by such Material Subsidiary (collectively,
"Credit Obligations"), except (a) Lien Restrictions with respect to
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any asset encumbered by a Lien permitted by Section 5.5, (b) Lien Restrictions
with respect to any asset (or any proceeds thereof) which are comparable to
Lien Restrictions affecting such asset on the Closing Date, (c) Lien
Restrictions included in the documentation governing the terms of any
Indebtedness of any Person which is acquired by Westinghouse or any of its
Material Subsidiaries after the Closing Date, which Indebtedness was
outstanding prior to the date of acquisition of such Person and was not created
in anticipation thereof and (d) Lien Restrictions in connection with
securitizations or other transactions involving sales of receivables affecting
only such receivables. It is understood that an "equal and ratable" clause
shall not be deemed to constitute a Lien Restriction so long as such clause
would permit the obligations entitled to the benefit of such clause and the
applicable Credit Obligations to be secured by Liens on the relevant assets on
a pari passu basis.
ARTICLE VI.
EVENTS OF DEFAULT.
In case of the happening of any of the following events ("Events of
Default"):
(a) (i) Westinghouse shall default in the payment when due of any principal
of any Loan or (ii) Westinghouse shall default in the payment when due of any
interest on any Loan, any reimbursement obligation in respect of any LC
Disbursement, any Fee or any other amount payable by it hereunder and, in the
case of this clause (ii), such default shall continue unremedied for a period
of five Business Days;
(b) any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by Westinghouse, or any
certificate furnished to any Lender or the Administrative Agent pursuant to
the provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made, deemed made or furnished;
(c) (i) Westinghouse shall default in the performance of any of its
obligations under Section 5.1(f), Section 5.4, Section 5.5, Sections 5.7
through 5.10 (inclusive) or Section 5.12 or (ii) Westinghouse shall default
in the performance of any of its other obligations under this Agreement and,
in the case of this clause (ii), such default shall continue unremedied for a
period of 15 days after notice thereof to Westinghouse by the Administrative
Agent or the Required Lenders (through the Administrative Agent);
(d) Westinghouse or any of its Subsidiaries shall (i) fail to pay at
maturity any Indebtedness (other than Indebtedness as defined in subsection
(f) of the definition thereof which has not been assumed by Westinghouse or
any of its Subsidiaries and where the Lien relates to Property acquired by
Westinghouse or any of its Subsidiaries in satisfaction, in whole or in part,
of indebtedness to Westinghouse or any of its Subsidiaries, in the ordinary
course of business of WFSI, any of its Subsidiaries, Financial Services or
WCI) in an aggregate amount in excess of $100,000,000, or (ii) fail to make
any payment (whether of principal, interest or otherwise), regardless of
amount, due in respect of, or fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing, any such Indebtedness in excess of $100,000,000 if
the effect of any failure referred to in this clause (ii) (x) is to cause, or
to permit the holder or holders of such Indebtedness or a trustee on its or
their behalf to cause, such Indebtedness to become due prior to its stated
maturity or (y) has caused such Indebtedness to become due prior to its
stated maturity (it being agreed that for purposes of this paragraph (d) only
(other than subclause (ii)(x) of this paragraph (d)), the term "Indebtedness"
shall include obligations
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under any interest rate protection agreement, foreign currency exchange
agreement or other interest or exchange rate hedging agreement and that the
amount of any Person's obligations under any such agreement shall be the net
amount that such Person could be required to pay as a result of a termination
thereof by reason of a default thereunder);
(e) Westinghouse or any of its Material Subsidiaries shall admit in writing
its inability, or be generally unable, to pay its debts as such debts become
due;
(f) Westinghouse or any of its Material Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
trustee or liquidator of itself or of all or a substantial part of its
Property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code (as now or
hereafter in effect), (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it
in an involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing;
(g) a proceeding or a case shall be commenced, without the application or
consent of Westinghouse or any of its Material Subsidiaries, in any court of
competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of Westinghouse or such Material Subsidiary or of all or any substantial
part of its assets or (iii) similar relief in respect of Westinghouse or such
Material Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an order
for relief against Westinghouse or such Material Subsidiary shall be entered
in an involuntary case under the Bankruptcy Code;
(h) a final judgment or judgments for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against
Westinghouse and/or any of its Material Subsidiaries and the same shall not
be paid or discharged (or provision shall not be made for such discharge), or
a stay of execution thereof shall not be procured, within 60 days from the
date of the date of entry thereof and Westinghouse or the relevant Material
Subsidiary shall not, within said period of 60 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal;
(i) an event or condition specified in Section 5.1(e) shall occur or exist
with respect to any Plan or Multiemployer Plan and, as a result of such event
or condition, together with all other such events or conditions, Westinghouse
or any ERISA Affiliate shall incur or in the good faith opinion of the
Required Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing) which would
constitute, in the good faith determination of the Required Lenders, a
Material Adverse Effect; or
(j) a Change of Control shall have occurred or, with respect to any period
of 25 consecutive calendar months (whether commencing before or after the
date of this Agreement), individuals who were directors of Westinghouse on
the first day of such period or who were
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nominated by such directors (or by directors in a direct chain of directors
so nominated) shall no longer occupy a majority of the seats (other than
vacant seats) on the Board of Directors of Westinghouse (excluding by reason
of the death or retirement of any director);
then and in every such event (other than an event with respect to Westinghouse
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to Westinghouse, take any or all of the
following actions, at the same or different times: (I) terminate forthwith the
Commitments, (II) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of Westinghouse accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by
Westinghouse, anything contained herein to the contrary notwithstanding, and
(III) require that Westinghouse deposit cash with the Administrative Agent, in
an amount equal to the Aggregate LC Exposure, as collateral security for the
repayment of any future LC Disbursements; and in any event with respect to
Westinghouse described in paragraph (f) or (g) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of Westinghouse accrued hereunder, shall automatically become
due and payable and Westinghouse shall be required to deposit cash with the
Administrative Agent, in an amount equal to the Aggregate LC Exposure, as
collateral security for the repayment of any future drawings under the Letters
of Credit, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by Westinghouse, anything
contained herein to the contrary notwithstanding.
ARTICLE VII.
THE AGENTS
In order to expedite the transactions contemplated by this Agreement, each
Agent is hereby appointed to act as Agent on behalf of the Lenders. Each of
the Lenders and the Issuing Lenders hereby irrevocably authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are specifically delegated to the Administrative Agent by the terms
and provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders and the Issuing Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and the LC Disbursements and all other amounts due to
the Lenders and Issuing Lenders hereunder, and promptly to distribute to each
Lender and Issuing Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to Westinghouse of any Event of
Default specified in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender and Issuing Lender copies of all notices, financial
statements and other materials delivered by Westinghouse pursuant to this
Agreement as received by the Administrative Agent.
Neither any Agent nor any of its directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except
for its or his own gross negligence or wilful misconduct, or be responsible for
any statement, warranty or representation herein or the contents of any
document delivered in connection herewith, or be required to ascertain or to
make any inquiry concerning the performance or observance by Westinghouse of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement
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or other instruments or agreements. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Lenders and the Issuing Lenders. The
Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Agents nor any of their directors, officers, employees or
agents shall have any responsibility to Westinghouse on account of the failure
of or delay in performance or breach by any Lender or Issuing Lender of any of
its obligations hereunder or to any Lender or Issuing Lender on account of the
failure of or delay in performance or breach by any other Agent, any other
Lender or Issuing Lender or Westinghouse of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken
or suffered in good faith by it in accordance with the advice of such counsel.
The Lenders and the Issuing Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Lenders and Westinghouse. Upon any such
resignation, the Required Lenders shall have the right to appoint from the
Lenders a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint from the
Lenders a successor Administrative Agent which shall be a bank with an office
in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an affiliate of any such bank, which successor shall be
acceptable to Westinghouse (such acceptance not to be unreasonably withheld).
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent's resignation hereunder,
the provisions of this Article and Section 8.5 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by them and their LC Exposure hereunder, the
Agents in their individual capacity and not as Agents shall have the same
rights and powers as any other Lender and may exercise the same as though they
were not Agents, and the Agents and their affiliates may accept deposits from,
lend money to and generally engage in any kind of business with Westinghouse or
any of its Subsidiaries or any Affiliate thereof as if they were not Agents.
Each Lender and Issuing Lender agrees (i) to reimburse the Administrative
Agent in the amount of its pro rata share (based on its Total Facility
Percentage or, after the date on which the Loans shall have been paid in full,
based on its Total Facility Percentage immediately prior to such date) of any
reasonable, out-of-pocket expenses incurred for the benefit of the Lenders or
the Issuing Lenders by the Administrative Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Lenders or the Issuing Lenders, which shall
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not have been reimbursed by or on behalf of Westinghouse and (ii) to indemnify
and hold harmless the Administrative Agent and any of its directors, officers,
employees or agents, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as Administrative Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by it under this Agreement, to the
extent the same shall not have been reimbursed by or on behalf of Westinghouse,
provided that no Lender or Issuing Lender shall be liable to the Administrative
Agent or any such director, officer, employee or agent for any portion of such
liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Administrative Agent or any of its
directors, officers, employees or agents.
Each Lender and Issuing Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender or Issuing Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender or Issuing Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.
Neither the Documentation Agent nor either Syndication Agent shall have any
duties or responsibilities hereunder in its capacity as such.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Notices. Notices and other communications provided for herein
shall be in writing (or, where permitted to be made by telephone, shall be
confirmed promptly in writing) and shall be delivered by hand or overnight
courier service, mailed or sent by telecopier as follows:
(a) if to Westinghouse, to it at Westinghouse Building, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention of Vice President and Treasurer
(Telecopy No. (000) 000-0000), with a copy to General Counsel (Telecopy No.
(000) 000-0000);
(b) if to the Administrative Agent, to it at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxx (Telecopy No. (212) 648- 5336);
(c) if to any Issuing Lender, to it at the address for notices specified in
the applicable Issuing Lender Agreement; and
(d) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule 1.1 or in the Assignment and Acceptance pursuant to which such
Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service, sent by
telecopy or, if permitted by the terms hereof and if promptly
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confirmed in writing, by telephone, or on the date five Business Days after
dispatch by registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 8.1 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 8.1.
SECTION 8.2. Survival of Agreement. All representations and warranties
made hereunder and in any certificate delivered pursuant hereto or in
connection herewith shall be considered to have been relied upon by the Agents
and the Lenders and shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder,
regardless of any investigation made by the Agents or the Lenders or on their
behalf.
SECTION 8.3. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Westinghouse, each Agent and each Lender and their
respective successors and assigns, except that Westinghouse shall not have the
right to assign its rights or obligations hereunder or any interest herein
without the prior consent of all the Lenders.
SECTION 8.4. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party, and all covenants, promises and
agreements by or on behalf of Westinghouse, either Agent or any Lender that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment or Swingline Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment
to a Lender or an affiliate of such Lender (other than if at the time of such
assignment, such Lender or affiliate would be entitled to require Westinghouse
to pay greater amounts under Section 2.20(a) than if no such assignment had
occurred, in which case such assignment shall be subject to the consent
requirement of this clause (i)), Westinghouse and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) (x) except in the case of assignments of
Competitive Loans or assignments to any Person that is a Lender prior to giving
effect to such assignment, the amount of the aggregate Commitments and/or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $25,000,000 and (y) the
amount of the aggregate Commitments and/or Loans retained by any assigning
Lender (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $25,000,000, unless (in the case of clause (x) or (y) above) the assigning
Lender's Commitment and Loans (other than any Competitive Loans) are being
reduced to $0 pursuant to such assignment, (iii) the assignor and assignee
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500 and (iv)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire. Upon acceptance and recording pursuant
to Section 8.4(e), from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof (or any lesser period to which the
Administrative Agent and Westinghouse may agree), (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and (B) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, 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 (but shall continue
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to be entitled to the benefits of Sections 2.15, 2.16, 2.20 and 8.5, as well as
to any Fees accrued for its account hereunder and not yet paid)).
Notwithstanding the foregoing, any Lender or Issuing Lender assigning its
rights and obligations under this Agreement may maintain any Competitive Loans
or Letters of Credit made or issued by it outstanding at such time, and in such
case shall retain its rights hereunder in respect of any Loans or Letters of
Credit so maintained until such Loans or Letters of Credit have been repaid or
terminated in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in clause (i) above, 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 any other instrument or document furnished pursuant hereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of Westinghouse or any of its Subsidiaries or
the performance or observance by Westinghouse or any of its Subsidiaries of any
of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to Sections
3.2 and 5.1 and such other documents and information as it has deemed
appropriate to make it own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Agent or 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; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as agent of
Westinghouse, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall
be conclusive in the absence of manifest error and Westinghouse, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by Westinghouse and any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Westinghouse and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to Westinghouse.
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(f) Each Lender may without the consent of Westinghouse or the Agents sell
participations to one or more banks or other financial institutions in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (ii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.15, 2.16 and 2.20 to the same extent as if they were Lenders
(provided that additional amounts payable to any Lender pursuant to Section
2.20 shall be determined as if such Lender had not sold any such
participations) and (iv) Westinghouse, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of Westinghouse relating to
the Loans and the Letters of Credit and to approve any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans or LC
Disbursements, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans or LC Disbursements or of LC Fees or
Commitment Fees or increasing the amount of or extending the Commitments, in
each case to the extent the relevant participant is directly affected thereby).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.4, disclose to the assignee or participant or proposed assignee or
participant any information relating to Westinghouse furnished to such Lender
by or on behalf of Westinghouse; provided that, prior to any such disclosure of
information designated by Westinghouse as confidential, each such assignee or
participant or proposed assignee or participant shall execute a Confidentiality
Agreement whereby such assignee or participant shall agree (subject to the
exceptions set forth therein) to preserve the confidentiality of such
confidential information. A copy of each such Confidentiality Agreement
executed by an assignee shall be promptly furnished to Westinghouse. It is
understood that confidential information relating to Westinghouse would not
ordinarily be provided in connection with assignments or participations of
Competitive Loans.
(h) Notwithstanding the limitations set forth in paragraph (b) above, (i)
any Lender may at any time assign or pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank and (ii) any Lender which is a
"fund" may at any time assign or pledge all or any portion of its rights under
this Agreement to secure such Lender's indebtedness, in each case without the
prior written consent of Westinghouse or the Administrative Agent; provided
that each such assignment shall be made in accordance with applicable law and
no such assignment shall release a Lender from any of its obligations
hereunder. In order to facilitate any such assignment, Westinghouse shall, at
the request of the assigning Lender, duly execute and deliver to the assigning
Lender a registered promissory note or notes evidencing the Loans made to
Westinghouse by the assigning Lender hereunder.
(i) Westinghouse shall not assign or delegate any of its rights or duties
hereunder without the prior consent of all the Lenders.
SECTION 8.5. Expenses; Indemnity. (a) Westinghouse agrees to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with the
preparation, negotiation, execution and delivery of this Agreement or in
connection with any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by any Agent, any Lender or any Issuing Lender in
connection with the
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enforcement or protection of the rights of the Agents, the Lenders or the
Issuing Lenders under this Agreement or in connection with the Loans made or
the Letters of Credit issued hereunder, including, without limitation, the
reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Agents, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
for any Agent, Lender or Issuing Lender.
(b) Westinghouse agrees to indemnify and hold harmless each Agent, each
Lender, each Issuing Lender and each of their respective directors, officers,
employees, affiliates and agents (each, an "Indemnified Person") against, and
to reimburse each Indemnified Person, upon its demand, for, any losses, claims,
damages, liabilities or other expenses ("Losses") to which such Indemnified
Person becomes subject insofar as such Losses arise out of or in any way relate
to or result from (i) the execution or delivery of this Agreement, any Letter
of Credit or any agreement or instrument contemplated hereby (and any amendment
hereto or thereto), the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby or (ii) the use (or proposed use)
of the proceeds of the Loans or other extensions of credit hereunder,
including, without limitation, Losses consisting of reasonable legal or other
expenses incurred in connection with investigating, defending or participating
in any legal proceeding relating to any of the foregoing (whether or not such
Indemnified Person is a party thereto); provided that the foregoing will not
apply to any Losses to the extent they are found by a final decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person.
(c) The provisions of this Section 8.5 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any
of the Loans, the invalidity or unenforceability of any term or provision of
this Agreement or any investigation made by or on behalf of any Agent or
Lender. All amounts under this Section 8.5 shall be payable on written demand
therefor.
SECTION 8.6. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Agent and each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Agent
or Lender to or for the credit or the account of Westinghouse against any of
and all the obligations of Westinghouse now or hereafter existing under this
Agreement or the Administrative Agent Fee Letter held by such Agent or Lender
which shall be due and payable. The rights of each Agent and each Lender under
this Section 8.6 are in addition to other rights and remedies (including other
rights of setoff) which such Agent or Lender may have.
SECTION 8.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS AND PRINCIPLES OF SUCH STATE.
SECTION 8.8. Waivers; Amendment. (a) No failure or delay of any Agent,
any Issuing Lender or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies of the
Agents, the Issuing Lenders and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies
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which they would otherwise have. No waiver of any provision of this Agreement
or consent to any departure by Westinghouse from any such provision shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on
Westinghouse in any case shall entitle Westinghouse to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement in writing entered into by
Westinghouse and the Required Lenders; provided, however, that no such
agreement shall (i) reduce the amount or extend the scheduled date of maturity
of any Loan or of any installment thereof, or reduce the stated amount of any
LC Disbursement, interest or fee payable hereunder or extend the scheduled date
of any payment thereof or increase the amount or extend the expiration date of
any Commitment of any Lender, in each case without the prior written consent of
each Lender directly affected thereby; (ii) amend, modify or waive any
provision of this Section 8.8(b), or reduce the percentage specified in the
definition of "Required Lenders", or consent to the assignment or transfer by
Westinghouse of any of its rights and obligations under this Agreement, in each
case without the prior written consent of all the Lenders; or (iii) amend,
modify or waive any provision of Article VII without the prior written consent
of each Agent affected thereby; provided, further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Swingline Lenders or the Issuing Lenders hereunder in such capacity
without the prior written consent of the Administrative Agent, each Swingline
Lender directly affected thereby or each Issuing Lender directly affected
thereby, as the case may be.
SECTION 8.9. Entire Agreement. This Agreement (together with the Issuing
Lender Agreements) constitutes the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement. Nothing
in this Agreement, expressed or implied, is intended to confer upon any party
other than the parties hereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 8.10.
SECTION 8.11. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8.12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which constitute an original but all of which when taken
together shall constitute but one contract, and shall become effective as
provided in Section 8.3.
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SECTION 8.13. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 8.14. Jurisdiction; Consent to Service of Process. (a)
Westinghouse hereby irrevocably and unconditionally submits, for itself and its
Property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against Westinghouse or its Properties in the courts of any jurisdiction.
(b) Westinghouse hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 8.1. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 8.15. Confidentiality. (a) Each Lender agrees to keep
confidential and not to disclose (and to cause its affiliates, officers,
directors, employees, agents and representatives to keep confidential and not
to disclose) and, at the request of Westinghouse (except as provided below or
if such Lender is required to retain any Confidential Information (as defined
below) pursuant to customary internal or banking practices, bank regulations or
applicable law), promptly to return to Westinghouse or destroy the Confidential
Information and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that such Lender shall be permitted to disclose
Confidential Information (i) to such of its officers, directors, employees,
agents, affiliates and representatives as need to know such Confidential
Information in connection with such Lender's participation in this Agreement,
each of whom shall be informed by such Lender of the confidential nature of the
Confidential Information and shall agree to be bound by the terms of this
Section 8.15; (ii) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process or requested by any Governmental
Authority or agency having jurisdiction over such Lender; provided, however,
that, except in the case of disclosure to bank regulators or examiners in
accordance with customary banking practices, written notice of each instance in
which Confidential Information is required or requested to be disclosed shall
be furnished to Westinghouse not less than 30 days prior to the expected date
of such disclosure or, if 30 days' notice is not practicable under the
circumstances, as promptly as practicable under the circumstances; (iii) to the
extent such Confidential Information (A) is or becomes publicly available other
than as a result of a breach of this Agreement, (B) becomes available to such
Lender on a non-confidential basis from a source other than a party to this
Agreement or any other party known to such Lender to be bound by an agreement
containing a provision similar to this Section 8.15 or (C) was available to
such Lender on a non-confidential basis prior to this disclosure to such Lender
by a party to this Agreement or any other party known to such
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61
Lender to be bound by an agreement containing a provision similar to this
Section 8.15; (iv) as permitted by Section 8.4(g); or (v) to the extent
Westinghouse shall have consented to such disclosure in writing. As used in
this Section 8.15, "Confidential Information" shall mean any materials,
documents or information furnished by or on behalf of Westinghouse in
connection with this Agreement designated by or on behalf of Westinghouse as
confidential.
(b) Each Lender (i) agrees that, except to the extent the conditions
referred to in subclause (A), (B) or (C) of clause (iii) of paragraph (a) above
have been met and as provided in paragraph (c) below, (A) it will use the
Confidential Information only in connection with its participation in this
Agreement and (B) it will not use the Confidential Information in connection
with any other matter or in a manner prohibited by any law, including, without
limitation, the securities laws of the United States and (ii) understands that
breach of this Section 8.15 might seriously prejudice the interest of
Westinghouse and that Westinghouse is entitled to equitable relief, including
an injunction, in the event of such breach.
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(c) Notwithstanding anything to the contrary contained in this Section
8.15, each Agent and each Lender shall be entitled to retain all Confidential
Information for so long as it remains an Agent or a Lender to use solely for
the purposes of servicing the credit and protecting its rights hereunder.
IN WITNESS WHEREOF, Westinghouse, the Agents and the Lenders have caused
this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
WESTINGHOUSE ELECTRIC CORPORATION
By /s/ ???????? ???????????
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as a Lender and as Administrative Agent
By /s/ XXXXXXX X. CRUING????
------------------------------------------
Name: Xxxxxxx X. Cruing???
Title: Vice President
THE CHASE MANHATTAN BANK, as a Lender and as
Documentation Agent
By /s/ XXXXX X. XXXXX
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NATIONSBANK, N.A., as a Lender and as a
Syndication Agent
By /s/ XXXXXXXX XXXXX XXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxx Xxxxxx
Title: Vice President
THE TORONTO-DOMINION BANK, as a Lender and as
a Syndication Agent
By /s/ XXXX XXXXXXX
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Mgr. Cr Admin.
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BANKERS TRUST COMPANY, as a Lender and
as a Managing Agent
By /s/ XXXX X. XXXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NEW YORK, as a Lender and
as a Managing Agent
By /s/ XXXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD., as a Lender
and as a Managing Agent
By /s/ X. X. XXXXXX
------------------------------------------
Name: X. X. Xxxxxx
Title: Vice President
CITIBANK, N.A., as a Lender and as a
Managing Agent
By /s/ XXXXXX X. XXXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Citibank, N.A. Attorney-in-Fact
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
and as a Managing Agent
By /s/ XXXXXXX XXXXXXX
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH, as a Lender and as a Managing Agent
By /s/ XXXXXXX X. XXXXXXX /s/ XXXX X. XXXXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx
Title: Assistant Vice President Vice President
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THE FUJI BANK, LIMITED, NEW YORK BRANCH,
as a Lender and as a Managing Agent
By /s/ XXXXXXXX XXXXXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Lender and as a
Managing Agent
By /s/ XXXXXX X. XXXXXX, XX.
------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
MELLON BANK, N.A., as a Lender and as a
Managing Agent
By /s/ XXXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
PNC BANK, NATIONAL ASSOCIATION, as a Lender
and as a Managing Agent
By /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ROYAL BANK OF CANADA, as a Lender and as
a Managing Agent
By /s/ XXXXX XXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Manager Corporate Banking
SANWA BANK LIMITED, as a Lender and as
a Managing Agent
By /s/ XXXX-XXXXXX XXXXXXX
------------------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Vice President
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SOCIETE GENERALE, NEW YORK BRANCH,
as a Lender and as a Managing Agent
By /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, as a Lender
and as a Managing Agent
By /s/ XXXXXXXXX XXXXXXXX
------------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Joint General Manager
ABN AMRO BANK N.V., as a Lender and
as a Co-Agent
By: ABN AMRO NORTH AMERICA, INC., as agent
By /s/ XXXXXXX X. XXXX / X. X. XXXXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxx / X. X. Xxxxxxxx
Title: Group V.P. / Group V.P.
THE ASAHI BANK, LTD., as a Lender and
as a Co-Agent
By /s/ XXXXXXX XXXXXX
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Deputy General Manager
BANK OF MONTREAL, as a Lender and
as a Co-Agent
By /s/ XXXXX XXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
BARCLAYS BANK PLC, as a Lender and
as a Co-Agent
By /s/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Director
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as a Co-Agent
By /s/ XXXXXXX X. XXXX
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Corporate Banking Officer
LTCB TRUST COMPANY, as a Lender and
as a Co-Agent
By /s/ XXXXXXXX XXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION,
as a Lender and as a Co-Agent
By /s/ XXXXXXXX XXXXX XX XXXX
------------------------------------------
Name: Xxxxxxxx Xxxxx xx Xxxx
Title: Senior Vice President
THE MITSUI TRUST & BANKING COMPANY, LTD.,
as a Lender and as a Co-Agent
By /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xx. Xxxxxxx X. Xxxxxx
Title: Vice President
THE SAKURA BANK, LTD., as a Lender and
as a Co-Agent
By /s/ XXXXXXXXX XXXXXX
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President & Manager
THE TOKAI BANK, LIMITED, as a Lender and
as a Co-Agent
By /s/ XXXXXX X. XXXXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as a Lender and as a Co-Agent
By /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
By /s/ XXXXXXXXX XXXXXXXXXX
------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President Credit Department
THE YASUDA TRUST AND BANKING CO., LTD.,
as a Lender and as a Co-Agent
By /s/ XXXXX XXXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President & Manager
ARAB BANK PLC
By /s/ ???????? ?????????
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By /s/ M. D. XXXXX
------------------------------------------
Name: M. D. Xxxxx
Title: Agent
BANQUE PARIBAS
By /s/ XXXX X. XXXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Group Vice President
By /s/ XXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BAYERISCHE VEREINSBANK AG
By /s/ XX X. XXXXXXX
------------------------------------------
Name: Xx X. Xxxxxxx
Title: Vice President
By /s/ XXXXX WINNER
------------------------------------------
Name: Xxxxx Winner
Title: Assistant Vice President
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CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ XXXXX XXXXX
------------------------------------------
Name: Xxxxx Xxxxx, F.V.P
Title: Head of Corporate Banking Chicago
CIBC INC.
By /s/ XXXX X. X. XXXXXXXX
------------------------------------------
Name: Xxxx X. X. Xxxxxxxx
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ XXXXX X'XXXXX / XXXX XXXXXXX
------------------------------------------
Name: Xxxxx X'Xxxxx / Xxxx Xxxxxxx
Title: Vice President First Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ???????? ?????????
------------------------------------------
Name: ???????? ?????????
Title: First Vice President
By
------------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By /s/ XXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
NIPPON CREDIT BANK, LTD.
By /s/ XXXXXXXX XXXXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager
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THE NORINCHUKIN BANK
By /s/ XXXXXXX XXXXXXX
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Manager
THE ROYAL BANK OF SCOTLAND plc
By /s/ XXXXX XXXXXX
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE SUMITOMO TRUST & BANKING CO., LTD.
By /s/ XXXXX X. XXXXXX
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Manager, Corporate Finance Dept.
THE TOYO TRUST & BANKING CO., LTD.
By /s/ TAKAO SHIDA
------------------------------------------
Name: Takao Shida
Title: D.J.M.
75
ANNEX I TO
CREDIT AGREEMENT
PRICING GRID
The Applicable Eurodollar Margin, the Applicable LC Commission Rate and the
Applicable Commitment Fee Rate shall be determined in accordance with this
Pricing Grid based upon the Debt Ratings established by the Rating Agencies,
provided that in the event that the Debt Ratings shall correspond to different
Categories, the lower-numbered Category (with Category 1 being the
lowest-numbered Category) shall apply.
-------------------------------------------------------------------------------------------------------------
Applicable Applicable Applicable Applicable
Eurodollar Financial Non-Financial Commitment
Category Debt Rating Margin LC Fee Rate LC Fee Rate Fee Rate
-------------------------------------------------------------------------------------------------------------
S&P Xxxxx'x
-------------------------------------------------------------------------------------------------------------
1 A- or higher A3 or higher 0.250% 0.250% 0.125% 0.075%
-------------------------------------------------------------------------------------------------------------
2 BBB+ Baa1 0.300% 0.300% 0.150% 0.100%
-------------------------------------------------------------------------------------------------------------
3 BBB Baa2 0.375% 0.375% 0.1875% 0.125%
-------------------------------------------------------------------------------------------------------------
4 BBB- Baa3 0.450% 0.450% 0.225% 0.175%
-------------------------------------------------------------------------------------------------------------
5 BB+ Ba1 0.625% 0.625% 0.3125% 0.250%
-------------------------------------------------------------------------------------------------------------
6 BB Ba2 0.875% 0.875% 0.4375% 0.300%
-------------------------------------------------------------------------------------------------------------
7 below BB below Ba2 1.000% 1.000% 0.500% 0.375%
-------------------------------------------------------------------------------------------------------------
For the purposes of determinations pursuant to this Pricing Grid, (a) the
Applicable Eurodollar Margin, Applicable Financial LC Fee Rate and Applicable
Non-Financial LC Fee Rate set forth above for each Category shall be increased
by the Leverage Margin (as defined below), if applicable; (b) if either Rating
Agency shall not have in effect a Debt Rating (other than because such Rating
Agency shall no longer be in the business of rating corporate debt
obligations), then such Rating Agency will be deemed to have established a Debt
Rating of below BB or below Ba2, as applicable; (c) if any rating established
or deemed to have been established by either Rating Agency shall be changed
(other than as a result of a change in the rating system of such Rating
Agency), such change shall be effective as of the date on which it is first
announced by such Rating Agency; (d) any change in the Applicable Eurodollar
Margin, the Applicable Financial LC Fee Rate, the Applicable Non-Financial LC
Fee Rate or the Applicable Commitment Fee Rate resulting from a change in the
Debt Rating shall apply during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change; and (e) if the rating system of either Rating Agency
shall change, or if either Rating Agency shall cease to be in the business of
rating corporate debt obligations, amendments shall be negotiated in good faith
(and shall be effective upon approval by Westinghouse and the Required Lenders)
to the references to specific ratings in this Pricing Grid to reflect such
changed rating system or the unavailability of ratings from such Rating Agency.
As used in this Pricing Grid, "Leverage Margin" shall mean a per annum rate,
applicable at any time when the Consolidated Leverage Ratio shall be greater
than 5.5 to 1 (determined as provided below), equal to 0.125% (in the case of
the Applicable Eurodollar Margin and the Applicable Financial LC Fee Rate) or
0.0625% (in the case of the Applicable Non-Financial LC Fee Rate). For the
purposes of this definition, the applicability of the Leverage Margin shall be
determined (a) as at the end of each of the first three quarterly periods of
each fiscal year of
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2
Westinghouse and as at the end of each fiscal year of Westinghouse (but in any
event not later than the 55th day after the end of each of the first three
quarterly periods of each fiscal year or the 105th day after the end of each
fiscal year, as the case may be), based on the Compliance Certificate delivered
in respect thereof (a "Required Calculation"), and (b) at the option of
Westinghouse, as at the end of any fiscal month of Westinghouse, based on a
certificate (an "Interim Certificate") of a Financial Officer of Westinghouse
delivered to the Administrative Agent setting forth in reasonable detail the
computations necessary to determine the Consolidated Leverage Ratio for the
period of twelve consecutive fiscal months ending on the last day of such
fiscal month (an "Interim Calculation"). The imposition or elimination, as the
case may be, of the Leverage Margin shall become effective on the date on which
the relevant Compliance Certificate or Interim Certificate, as the case may be,
is delivered to the Administrative Agent and such imposition or elimination
shall remain in effect until the next determination to be made pursuant to this
paragraph, provided, that (a) until the first such certificate is delivered
after the Closing Date, the Leverage Margin shall be deemed to be applicable
and (b) if any Compliance Certificate is not delivered within the time periods
specified above, then, for the period from and including the date on which such
Compliance Certificate is required to be delivered to but not including the
date on which such Compliance Certificate is delivered, the Leverage Margin
shall be deemed to be applicable. In the event that the Leverage Margin is
eliminated on the basis of an Interim Calculation and the Consolidated Leverage
Ratio determined in connection with the next Required Calculation shall be
greater than 5.5 to 1, then Westinghouse shall be required to pay, on the date
such Required Calculation is made, to the Administrative Agent for the ratable
benefit of the Lenders, an amount equal to the aggregate amount of the
additional interest in respect of Eurodollar Loans and the additional LC Fees
in respect of Letters of Credit that Westinghouse would have been required to
pay, during the period from the date of such Interim Calculation through the
date of such Required Calculation, if such Interim Calculation had not been
made.
77
Schedule 1.1 to the
Credit Agreement
COMMITMENTS; ADDRESSES FOR NOTICES
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK $265,000,000.00
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK $265,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
NATIONSBANK, N.A. $265,000,000.00
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE TORONTO-DOMINION BANK $265,000,000.00
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. xxXxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
BANKERS TRUST COMPANY $175,000,000.00
One Bankers Trust Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
78
2
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE BANK OF NEW YORK $175,000,000.00
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI, LTD. $175,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
CITIBANK, N.A. $175,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE DAI-ICHI KANGYO BANK, LTD. $175,000,000.00
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH $175,000,000.00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx-Xxxxx Mikolayczyk
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE FUJI BANK, LIMITED, NEW YORK BRANCH $215,000,000.00
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
79
3
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE INDUSTRIAL BANK OF JAPAN, LTD. $175,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
MELLON BANK, N.A. $175,000,000.00
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
PNC BANK, NATIONAL ASSOCIATION $175,000,000.00
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
ROYAL BANK OF CANADA $175,000,000.00
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE SANWA BANK LIMITED $175,000,000.00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
SOCIETE GENERALE $175,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
80
4
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE SUMITOMO BANK, LIMITED $175,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
ABN AMRO BANK N.V. $100,000,000.00
Xxx XXX Xxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE ASAHI BANK, LTD. $100,000,000.00
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Attn: Wit Derby
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
BANK OF MONTREAL $100,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
BARCLAYS BANK PLC $100,000,000.00
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
81
5
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO $100,000,000.00
0000 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
LTCB TRUST COMPANY $100,000,000.00
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE MITSUBISHI TRUST AND BANKING CORPORATION $100,000,000.00
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 or 593-4691
-------------------------------------------------------------------------------
THE MITSUI TRUST & BANKING COMPANY, LIMITED, $100,000,000.00
NEW YORK BRANCH
One World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 or 4171
-------------------------------------------------------------------------------
THE SAKURA BANK, LTD. $100,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
82
6
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE TOKAI BANK, LTD., NEW YORK BRANCH $100,000,000.00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE $100,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK $150,000,000.00
BRANCH
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
ARAB BANK PLC $50,000,000.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA $50,000,000.00
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
BANQUE PARIBAS $50,000,000.00
The Equitable Tower
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
83
7
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
BAYERISCHE VEREINSBANK AG $50,000,000.00
000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
CAISSE NATIONALE DE CREDIT AGRICOLE $50,000,000.00
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
CIBC $50,000,000.00
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
COMPAGNIE FINANCIERE DE CIC ET DE $50,000,000.00
L'UNION EUROPEENNE
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X'Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH $50,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
KEYBANK NATIONAL ASSOCIATION $50,000,000.00
000 Xxxxxx Xxxxxx, X/X XX-00-00-0000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
84
8
===============================================================================
LENDER NAME AND ADDRESS REVOLVING CREDIT COMMITMENT
-------------------------------------------------------------------------------
THE NIPPON CREDIT BANK, LTD., NEW YORK BRANCH $50,000,000.00
000 Xxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000 000-0000
-------------------------------------------------------------------------------
THE NORINCHUKIN BANK, NEW YORK BRANCH $50,000,000.00
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
ROYAL BANK OF SCOTLAND PLC $50,000,000.00
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK $50,000,000.00
BRANCH
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx or Xxxxx Xxxx
Tel. No.: (000) 000-0000 or (000) 000-0000
Fax No.: (000) 000-0000
-------------------------------------------------------------------------------
THE TOYO TRUST & BANKING CO., LTD. $50,000,000.00
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
===============================================================================
85
Schedule 3.4 to the
Credit Agreement
CONSENTS, ETC.
86
Schedule 3.13 to the
Credit Agreement
MATERIAL SUBSIDIARIES
87
Schedule 5.6(n) to the
Credit Agreement
CERTAIN CBS ASSETS
88
Schedule 5.7 to the
Credit Agreement
EXISTING INDEBTEDNESS
89
SCHEDULE 3.12
MATERIAL SUBSIDIARIES
INCORPORATED VOTING POWER
UNDER OWNED BY
NAME LAWS OF IMMEDIATE PARENT
---- ------- ----------------
CBS Inc. New York 100%
Thermo King Corporation Delaware 100%
Westinghouse Canada, Inc. Canada 100%
Westinghouse CBS Holdings Delaware 100%
Company, Inc.
Westinghouse Hanford Delaware 100%
Company
Westinghouse Holdings Delaware 100%
Corporation
Westinghouse de Puerto Delaware 100%
Rico, Inc.
Westinghouse Electric S.A. Switzerland 100%
Westinghouse International Delaware 100%
Technology Corporation
Westinghouse World Delaware 100%
Investment Corporation
Westinghouse Foreign Sales Barbados 100%
Corporation
Westinghouse Industry Delaware 100%
Products International
Company
Westinghouse Savannah River Delaware 100%
Company, Inc.
90
SCHEDULE 5.5(n)
CBS REAL ESTATE PROPERTIES
Xx Xxxxxxxx Theater and adjacent 13 story office building
0000 Xxxxxxxx
Xxx Xxxx, XX
CBS Studio Center and TV City
Los Angeles, California
CBS Data Center
000 Xxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx
CBS Broadcast Center
Between 00xx/00xx Xxxxxx and
10th/11th Avenues
New York, NY
91
SCHEDULE 5.6
EXISTING CBS INDEBTEDNESS
A. 7 5/8% Notes due 2002 ($150 million)
B. 7 3/4% Notes due 1999 ($125 million)
C. 7 1/8% Notes due 2023 ($97 million)
D. 8 7/8% Notes due 2022 ($92 million)
E. KUTV Revolving Credit Agreement ($26 million)
F. KUTV 6% Subordinated Note ($11 million)
92
Exhibit A to the
Credit Agreement
WESTINGHOUSE ELECTRIC CORPORATION
ADMINISTRATIVE QUESTIONNAIRE
Please provide the following details:
I. A) FULL LEGAL BANK NAME:
-------------------------
B) FULL LEGAL DOMESTIC LENDING OFFICE NAME AND ADDRESS:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
TELEX NUMBER:
-----------------------------------------------------
C) FULL LEGAL EURODOLLAR LENDING OFFICE NAME AND ADDRESS:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
TELEX NUMBER:
-----------------------------------------------------
D) FULL LEGAL COMPETITIVE LOAN LENDING OFFICE NAME AND ADDRESS:
------------------------------------------------------------------
------------------------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
TELEX NUMBER:
-----------------------------------------------------
Please fax your completed questionnaire to Xxxxx Xxxxxxx and Xxxxxxx XxXxxxxx
at X.X. Xxxxxx fax (000) 000-0000 and (000) 000-0000 respectively.
93
2
II. A) WHERE EXECUTION COPIES SHOULD BE SENT FOR SIGNATURE(S):
ADDRESS:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
ATTN:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
B) WHERE CONFORMED (FINAL) COPIES SHOULD BE SENT:
ADDRESS:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
ATTN:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
C) FOR BUSINESS AND/OR CREDIT MATTERS:
CONTACT NAME/DEPT:
------------------------------------------------
TELEPHONE NUMBER:
-------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
D) FOR ADMINISTRATIVE/OPERATIONS MATTERS:
CONTACT NAME/DEPT:
------------------------------------------------
TELEPHONE NUMBER:
-------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
94
3
E) FOR COMPETITIVE BID REQUESTS:
CONTACT NAME/DEPT:
------------------------------------------------
TELEPHONE NUMBER:
-------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
F) PAYMENT INSTRUCTIONS (PLEASE SPECIFY WHERE FUNDS, I.E.
INTEREST, FEES, LOAN REPAYMENTS SHOULD BE WIRED):
BANK NAME:
--------------------------------------------------------
ABA, CHIPS #:
-----------------------------------------------------
ACCOUNT #:
--------------------------------------------------------
CREDIT TO (IF APPLICABLE):
----------------------------------------
REFERENCE:
--------------------------------------------------------
ATTENTION:
--------------------------------------------------------
G) FOR LETTER OF CREDIT ADMINISTRATIVE MATTERS:
CONTACT NAME/DEPT:
------------------------------------------------
TELEPHONE NUMBER:
-------------------------------------------------
FAX NUMBER:
-------------------------------------------------------
H) PAYMENT INSTRUCTIONS: (PLEASE SPECIFY WHERE LETTER OF
CREDIT COMMISSION FEES SHOULD BE WIRED):
BANK NAME:
--------------------------------------------------------
ABA, CHIPS #:
-----------------------------------------------------
ACCOUNT #:
--------------------------------------------------------
CREDIT TO (IF APPLICABLE):
----------------------------------------
REFERENCE:
--------------------------------------------------------
ATTENTION:
--------------------------------------------------------
95
Exhibit B-1 to the
Credit Agreement
FORM OF COMPETITIVE BID REQUEST
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent for the Lenders referred to below,
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Dear Sirs:
The undersigned, Westinghouse Electric Corporation
("Westinghouse"), refers to the Credit Agreement dated as of August 29, 1996
(as it may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Westinghouse, the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. Terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. Westinghouse hereby gives you notice pursuant to Section 2.3
of the Credit Agreement that it requests a Competitive Loan under the Credit
Agreement, and in that connection sets forth below the terms on which such
Competitive Loan is requested to be made:
(A) Date of Competitive Loan (which is a Business Day)
(B) Principal Amount of Competitive Loan 1
(C) Interest rate basis 2
--------
1 Not less than $5,000,000 (and in integral multiples of $1,000,000).
2 Eurodollar Competitive Loan or Absolute Rate Loan.
96
2
(D) Interest Period and the last day thereof 3
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this request, Westinghouse shall be deemed to have
represented and warranted that the conditions specified in Section 4.2(b) and
(c) of the Credit Agreement have been satisfied.
Very truly yours,
WESTINGHOUSE ELECTRIC CORPORATION
By:
---------------------------
Name:
Title:
--------
3 Which shall be subject to the definition of "Interest Period" and end
not later than the Revolving Credit Maturity Date.
97
Exhibit B-2 to the
Credit Agreement
FORM OF NOTICE OF COMPETITIVE BID REQUEST
To: [Name of Lender]
Re: Invitation for Competitive Bids to Westinghouse Electric
Corporation ("Westinghouse")
Pursuant to Section 2.3 of the Credit Agreement dated as of
August 29, 1996 (as it may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement) among Westinghouse Electric Corporation, the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and the undersigned,
as Administrative Agent, we are pleased on behalf of Westinghouse to invite you
to submit Competitive Bids to Westinghouse for the following proposed
Competitive Loans:
Date of Borrowing: ____________________
Principal Amount
$
Such Competitive Bids should offer a [Margin] [a fixed rate
of interest]. [The applicable base rate is the Eurodollar Rate.]
Please respond to this invitation by no later than 9:30 A.M.
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
---------------------------
Authorized Officer
98
Exhibit B-3 to the
Credit Agreement
FORM OF COMPETITIVE BID
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent for the Lenders referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Dear Sirs:
The undersigned, [Name of Lender], refers to the Credit
Agreement dated as of August 29, 1996 (as it may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Westinghouse Electric Corporation ("Westinghouse"), the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. 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 Competitive Bid pursuant to
Section 2.3(b) of the Credit Agreement, in response to the Competitive Bid
Request made by Westinghouse on ___________ __, ____, and in that connection
sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount 1
(B) Competitive Bid Rate[s] 2
(C) Interest Period and last day thereof
--------
1 Not less than $5,000,000 or greater than the requested Competitive
Loan and in integral multiples of $1,000,000. Multiple Competitive
Bids will be accepted by the Administrative Agent.
2 i.e., Eurodollar Rate + or - ___%, in the case of Eurodollar
Competitive Loans or ___%, in the case of Absolute Rate Loans.
99
2
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to
Westinghouse on the requested date of the Competitive Loan upon acceptance by
Westinghouse of this Competitive Bid in accordance with Section 2.3(d) of the
Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:
---------------------------
Name:
Title:
100
Exhibit B-4 to the
Credit Agreement
FORM OF REVOLVING CREDIT BORROWING REQUEST
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent for the Lenders referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Dear Sirs:
The undersigned, Westinghouse Electric Corporation
("Westinghouse"), refers to the Credit Agreement dated as of August 29, 1996
(as it may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Westinghouse, the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. Terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. Westinghouse hereby gives you notice pursuant to Section 2.4
of the Credit Agreement that it requests a Revolving Credit Loan under the
Credit Agreement, and in that connection sets forth below the terms on which
such Revolving Credit Loan is requested to be made:
(A) Date of Revolving Credit Loan (which is a Business
Day)
(B) Principal Amount of Revolving Credit Loan 1
(C) Interest rate basis 2
--------
1 Not less than $50,000,000 in the case of Eurodollar Revolving Credit
Loans and not less than $25,000,000 in the case of ABR Revolving
Credit Loans (and, in each case, in integral multiples of $5,000,000).
2 Eurodollar Revolving Credit Loan or ABR Revolving Credit Loan.
101
2
(D) Interest Period and the last day thereof 3
Upon acceptance of any or all of the Loans made by the
Lenders in response to this request, Westinghouse shall be deemed to have
represented and warranted that the conditions specified in Section 4.2(b) and
(c) of the Credit Agreement have been satisfied.
Very truly yours,
WESTINGHOUSE ELECTRIC CORPORATION
By:
---------------------------
Name:
Title:
--------
3 Applicable to Eurodollar Revolving Credit Loans only, which shall be
subject to the definition of "Interest Period" and end not later than
the Revolving Credit Maturity Date.
102
Exhibit B-5 to the
Credit Agreement
FORM OF SWINGLINE BORROWING REQUEST
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent for the Lenders referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Dear Sirs:
The undersigned, Westinghouse Electric Corporation
("Westinghouse"), refers to the Credit Agreement dated as of August 29, 1996
(as it may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Westinghouse, the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. Terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. Westinghouse hereby gives you notice pursuant to Section 2.6
of the Credit Agreement that it requests a Swingline Loan under the Credit
Agreement, and in that connection sets forth below the terms on which such
Swingline Loan is requested to be made:
(A) Date of Swingline Loan (which is a Business Day)
(B) Principal Amount of Swingline Loan 1
(C) Interest rate basis 2
--------
1 Not less than $5,000,000 (and in integral multiples of $1,000,000).
2 ABR Swingline Loan or Quoted Swingline Loan.
103
2
Upon acceptance of any or all of the Loans made by the
Swingline Lenders in response to this request, Westinghouse shall be deemed to
have represented and warranted that the conditions specified in Section 4.2(b)
and (c) of the Credit Agreement have been satisfied.
Very truly yours,
WESTINGHOUSE ELECTRIC CORPORATION
By:
---------------------------
Name:
Title:
104
Exhibit B-6 to the
Credit Agreement
FORM OF NOTICE OF DESIGNATED LETTER OF CREDIT
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent for the Lenders
referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
[Date]
Dear Sirs:
The undersigned, Westinghouse Electric Corporation
("Westinghouse"), refers to the Credit Agreement dated as of August 29, 1996
(as it may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Westinghouse, the Lenders party
thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as Syndication
Agents, The Chase Manhattan Bank, as Documentation Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. Terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. Westinghouse hereby gives you notice pursuant to Section
2.7(a) of the Credit Agreement that the letter of credit(1) described below is
hereby designated a Letter of Credit under the Credit Agreement:
Issuing Lender:
Beneficiary:
Face Amount:
Expiration Date: 2
Type: 3
--------
1 Such letter of credit shall have been issued by an Issuing Lender and
shall not have been a Letter of Credit under the Credit Agreement at
the time of its issuance.
2 To be not later than the fifth Business Day preceding the Revolving
Credit Maturity Date.
3 Identify as Financial Letter of Credit or Non-Financial Letter of
Credit (subject to confirmation by the Administrative Agent).
105
2
As of the date hereof, Westinghouse shall be deemed to have
represented and warranted that the conditions specified in Section 4.2(b) and
(c) of the Credit Agreement have been satisfied.
Very truly yours,
WESTINGHOUSE ELECTRIC CORPORATION
By:
---------------------------
Name:
Title:
Consented to:
[ISSUING LENDER]
By:
------------------------
Name:
Title:
106
Exhibit C to the
Credit Agreement
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of August 29,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Westinghouse Electric Corporation ("Westinghouse"),
the Lenders parties thereto, NationsBank, N.A. and The Toronto-Dominion Bank,
as syndication agents, The Chase Manhattan Bank, as documentation agent, and
Xxxxxx Guaranty Trust Company of New York, as administrative agent (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
The Assignor named on Schedule 1 (the "Assignor") and the Assignee
named on Schedule 1 (the "Assignee") agree as follows:
The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), an interest as specified in Schedule 1 (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement with respect to the facility described on Schedule 1 (the
"Assigned Facility"), in a principal amount for the Assigned Facility as set
forth on Schedule 1.
The Assignor (a) 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 any other instrument or
document furnished pursuant thereto or with respect to the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor has not created any adverse claim upon the Assigned
Interest and that such Assigned Interest is free and clear of any such adverse
claim; and (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Westinghouse or any
of its Subsidiaries or the performance or observance by Westinghouse of any of
its obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements referred to in Sections 3.2 and 5.1 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
the Administrative Agent or any other Lender or Agent 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 or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion
107
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under the Credit Agreement and any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
(i) if it is organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to Section 2.20(f) of the Credit Agreement and
(ii) if it is not already a Lender, its obligation to deliver (x) an
Administrative Questionnaire pursuant to Section 8.4(e) of the Credit Agreement
and (y) a Confidentiality Agreement pursuant to Section 8.4(g) of the Credit
Agreement.
The effective date of this Assignment and Acceptance shall be as
specified on Schedule 1 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to Section
8.4(d) of the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier than
five Business Days after the execution hereof).
Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
From and after the Effective Date, (a) 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 shall be
bound by the provisions thereof and (b) 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 (other than any such
rights which expressly survive the termination thereof).
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
108
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT, DATED AS OF AUGUST 29, 1996
AMONG
WESTINGHOUSE ELECTRIC CORPORATION, THE LENDERS PARTIES THERETO,
NATIONSBANK, N.A. AND THE TORONTO-DOMINION BANK, AS SYNDICATION AGENTS,
THE CHASE MANHATTAN BANK, AS DOCUMENTATION AGENT, AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, AS ADMINISTRATIVE AGENT
(IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT")
===============================================================================
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage Assigned
Facility Assigned Amount Assigned (if applicable)
------------------------------ --------------------------- --------------------------------------------------
$______________ __._______________%
The terms set forth above and in the Assignment and Acceptance to which this
Schedule 1 is attached are hereby agreed to:
[Consented to and]* Accepted for the
Recordation in the Register:
, as Assignor XXXXXX GUARANTY TRUST COMPANY OF
------------------
NEW YORK, as Administrative Agent
By: By:
------------------------- -----------------------
Name: Name:
Title: Title:
[Consented to]:*/
, as Assignee WESTINGHOUSE ELECTRIC CORPORATION
------------------
By: By:
------------------------- -----------------------
Name: Name:
Title: Title:
--------
* To be completed only if consents are required under Section 8.4(b).
109
Exhibit D to the
Credit Agreement
FORM OF CONFIDENTIALITY AGREEMENT
_______________, 199_
Westinghouse Electric Corporation
Westinghouse Building
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention of Vice President and Treasurer
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of August
29, 1996 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Westinghouse
Electric Corporation, a Pennsylvania corporation ("Westinghouse"), the Lenders
parties thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as
Syndication Agents, The Chase Manhattan Bank, as Documentation Agent, and
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent. Terms used
but not defined herein have the meanings assigned to them in the Credit
Agreement.
In connection with the proposed purchase by us of an
assignment or participation pursuant to Section 8.4 of the Credit Agreement, we
may receive information furnished by or on behalf of Westinghouse and
designated by or on behalf of Westinghouse as confidential (the "Information").
We understand that improper use or disclosure of the
Information might violate applicable Federal and state securities laws
(including Rule 10b-5 under the Securities Exchange Act of 1934, as amended)
and seriously prejudice the interests of Westinghouse and that Westinghouse is
entitled to rely on the promises made herein and to equitable relief, including
an injunction, in the event of our breach. Accordingly, we agree to keep
confidential and not to disclose (and to cause our affiliates, officers,
directors, employees, agents and representatives to keep confidential and not
to disclose) and, at your request (except as provided below or if such Lender
is required to retain any Information pursuant to customary internal or banking
practices, bank regulations or applicable law), promptly to return to you or
destroy the Information and all copies thereof, extracts therefrom and analyses
or other materials based thereon, except that we shall be permitted to disclose
Information: (i) to such of our officers, directors, employees, agents,
affiliates and representatives as need to know such Information in connection
with the proposed assignment or participation referred to above, each of whom
shall be informed by us of the confidential nature of the Information and shall
agree to be bound by the terms of this Confidentiality
110
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Agreement; (ii) to the extent required by applicable laws and regulations or by
any subpoena or similar legal process or requested by any governmental
authority or agency having jurisdiction over us; provided, however, that,
except in the case of disclosure to bank regulators or examiners in accordance
with customary banking practices, written notice of each instance in which
Information is required or requested to be disclosed shall be furnished to you
not less than 30 days prior to the expected date of such disclosure or, if 30
days' notice is not practicable under the circumstances, as promptly as
practicable under the circumstances; (iii) to the extent such Information (A)
is or becomes publicly available other than as a result of a breach of the
Credit Agreement or this Confidentiality Agreement, (B) becomes available to us
on a non-confidential basis from a source other than a party to the Credit
Agreement or any other party known to us to be bound by an agreement similar to
this Confidentiality Agreement or (C) was available to us on a non-confidential
basis prior to its disclosure to us by a party to the Credit Agreement or any
other party bound by an agreement similar to this Confidentiality Agreement; or
(iv) to the extent Westinghouse shall have consented to such disclosure in
writing.
We further agree that, except to the extent the conditions
referred to in subclause (A), (B) or (C) of clause (iii) above have been met
and as provided in the last paragraph of this letter, (a) we will use the
Information only in connection with our possible participation in the Credit
Agreement and (b) we will not use the Information in connection with any other
matter or in a manner prohibited by any law, including, without limitation, the
securities laws of the United States.
Notwithstanding anything to the contrary contained above, if
we shall purchase an assignment of or a participation in the rights of any
Lender under the Credit Agreement, we shall be entitled to retain all
Information and to use it in servicing the credit and in protecting our rights
with regard thereto.
Name of Recipient:
By:
Title:
Institution:
Date:
111
Exhibit E-1 to the
Credit Agreement
FORM OF OPINION OF GENERAL COUNSEL
August 29, 1996
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
The Chase Manhattan Bank,
as Documentation Agent
NationsBank, N.A. and The Toronto-Dominion Bank,
as Syndication Agents
And each of the Lenders parties to
the Credit Agreement referred to below
Gentlemen:
I am Senior Vice President and General Counsel of Westinghouse
Electric Corporation, a Pennsylvania corporation ("Westinghouse"), and in such
capacity have represented Westinghouse in connection with the Credit Agreement,
dated as of August 29, 1996 (the "Credit Agreement"), among Westinghouse, the
Lenders parties thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as
syndication agents, The Chase Manhattan Bank, as documentation agent, and
Xxxxxx Guaranty Trust Company of New York, as administrative agent.
The opinions expressed below are furnished to you pursuant to Section
4.1(e)(i) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
In arriving at the opinions expressed below,
(a) I have examined, either personally or indirectly through lawyers
who report to me or through other counsel, and relied on the executed originals
of, the Credit Agreement; and
(b) I have examined, either personally or indirectly through lawyers
who report to me or through other counsel, such corporate documents and records
of Westinghouse and such other instruments and certificates of public
officials, officers and representatives of
112
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Xxxxxxxxxxxx and other Persons as I have deemed necessary or appropriate for
the purposes of this opinion.
In arriving at the opinions expressed below, I have made such
investigations of law, in each case as I have deemed appropriate as a basis for
such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to me as originals, (b) the genuineness of all
signatures on all documents that I examined (other than those of Westinghouse)
and (c) the conformity to authentic originals of documents submitted to me as
certified, conformed or photostatic copies.
When my opinions expressed below are stated "to the best of my
knowledge," I have made reasonable and diligent investigation of the subject
matters of such opinions and have no reason to believe that there exist any
facts or other information that would render such opinions incomplete or
incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. Westinghouse (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and (c) to the best of my knowledge,
is duly qualified as a foreign corporation and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except to the extent that
the failure to be so qualified could not, in the aggregate, have a Material
Adverse Effect.
2. Westinghouse has the corporate power and authority, and the legal
right, to make, deliver and perform its obligations under the Credit Agreement
and to obtain extensions of credit under the Credit Agreement. Westinghouse has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Credit Agreement and the borrowings and other extensions of
credit on the terms and conditions of the Credit Agreement. No consent or
authorization of, approval by, notice to, filing with or other act by or in
respect of any Governmental Authority or any other Person is required in
connection with the extensions of credit under the Credit Agreement or with the
execution, delivery, performance, validity or enforceability of the Credit
Agreement.
3. The Credit Agreement has been duly executed and delivered on behalf
of Westinghouse.
4. The execution and delivery of the Credit Agreement, the performance
by Westinghouse of its obligations thereunder, the consummation of the
transactions contemplated thereby, the compliance by Westinghouse with any of
the provisions thereof, the
113
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borrowings and other extensions of credit under the Credit Agreement and the
use of proceeds thereof, all as provided therein, (a) will not violate, or
constitute a default under (i) any requirement of law (including, without
limitation, Regulations G, T and U), (ii) any indenture or other material
contractual obligation of Westinghouse or of any of its Subsidiaries, or (iii)
the certificate of incorporation, bylaws and other organizational documents of
Westinghouse or of any of its Subsidiaries and (b) will not result in, or
require, the creation or imposition of any Lien pursuant to any indenture or
material contractual obligation referred to in clause (a)(ii) above (including,
without limitation, pursuant to any "equal and ratable" provision contained
therein) on any of the properties or revenues of Westinghouse or any of its
Subsidiaries.
5. Except as disclosed to the Lenders in the Exchange Act Report filed
prior to the Closing Date or otherwise disclosed in writing to the Lenders
prior to the Closing Date, to the best of my knowledge, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or threatened by or against Westinghouse or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to the Credit Agreement or (b) which if adversely determined would have
a Material Adverse Effect.
6. Westinghouse is not (a) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or (b) a "holding company" as defined in, or
otherwise subject to regulation under, the Public Utility Holding Company Act
of 1935.
I am a member of the bar of the Commonwealth of Pennsylvania and I
express no opinion as to the laws of any jurisdiction other than the laws of
the Commonwealth of Pennsylvania and the Federal laws of the United States of
America.
Very truly yours,
114
Exhibit E-2 to the
Credit Agreement
FORM OF OPINION OF ASSISTANT/ASSOCIATE GENERAL COUNSEL
August 29, 1996
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
The Chase Manhattan Bank,
as Documentation Agent
NationsBank, N.A. and The Toronto-Dominion Bank,
as Syndication Agents
And each of the Lenders parties to
the Credit Agreement referred to below
Gentlemen:
I am [Assistant][Associate] General Counsel of Westinghouse Electric
Corporation, a Pennsylvania corporation ("Westinghouse"), and in such capacity
have represented Westinghouse in connection with the Credit Agreement, dated as
of August 29, 1996 (the "Credit Agreement"), among Westinghouse, the Lenders
parties thereto, NationsBank, N.A. and The Toronto-Dominion Bank, as
syndication agents, The Chase Manhattan Bank, as documentation agent, and
Xxxxxx Guaranty Trust Company of New York, as administrative agent.
The opinions expressed below are furnished to you pursuant to Section
4.1(e)(ii) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
In arriving at the opinions expressed below,
(a) I have examined, and relied on the executed originals, of the
Credit Agreement;
and
(b) I have examined, either personally or indirectly through lawyers
who report to me or through other counsel, such corporate documents and records
of Westinghouse and such other instruments and certificates of public
officials, officers and representatives of
115
-2- August __, 0000
Xxxxxxxxxxxx and other Persons as I have deemed necessary or appropriate for
the purposes of this opinion.
In arriving at the opinions expressed below, I have made such
investigations of law, in each case as I have deemed appropriate as a basis for
such opinions.
In rendering the opinions expressed below, I have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to me as originals, (b) the genuineness of all
signatures on all documents that I examined (other than those of Westinghouse)
and (c) the conformity to authentic originals of documents submitted to me as
certified, conformed or photostatic copies.
Based upon and subject to the foregoing, I am of the opinion that:
(1) Assuming the due authorization, execution and delivery of
the Credit Agreement by each party thereto other than Westinghouse, the Credit
Agreement constitutes the legal, valid and binding obligation of Westinghouse,
enforceable against Westinghouse in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
receivership, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except that no opinion is expressed with respect to Section 2.18
of the Credit Agreement insofar as it provides that a Lender purchasing a
participation from another Lender may exercise set-off rights with respect to
such participation.
(2) The execution and delivery of the Credit Agreement by
Westinghouse, the consummation of the transactions contemplated thereby and
compliance by Westinghouse with any of the provisions thereof will not conflict
with, constitute a default under or violate any New York law or regulation.
(3) No consent, approval, waiver, license or authorization or
other action by or filing with any New York governmental authority is required
in connection with the execution and delivery by Westinghouse of the Credit
Agreement or the consummation by Westinghouse of the transactions contemplated
thereby.
I am a member of the bar of the State of New York and I
express no opinion as to the laws of any jurisdiction other than the laws of
the State of New York.
The opinions expressed herein are based on states of facts
and law as they exist on the date hereof.
I have used due care in preparing this opinion. Nevertheless,
nothing contained herein shall create any obligation or right to look to me
individually for any claim, liability,
116
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damage, loss or expense whatsoever whether arising in contract, in tort
(including negligence and strict liability) or otherwise in connection with
this opinion, with the Credit Agreement or otherwise in connection with the
transactions contemplated therein.
This opinion is solely for the use of the Agents and the
Lenders in connection with the transactions contemplated by the Credit
Agreement and may not be relied upon by any other person or used for any other
purpose.
Very truly yours,
117
Exhibit E-3 to the
Credit Agreement
FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
August 29, 1996
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
The Chase Manhattan Bank,
as Documentation Agent
NationsBank, N.A. and The Toronto-Dominion Bank,
as Syndication Agents
And each of the Lenders listed on Schedule I hereto
Re: Credit Agreement, dated as of August 29, 1996 (the
"Credit Agreement"), among Westinghouse Electric
Corporation, a Pennsylvania corporation
("Westinghouse"), the Lenders parties thereto,
NationsBank, N.A. and The Toronto-Dominion Bank, as
Syndication Agents, The Chase Manhattan Bank, as
Documentation Agent, and Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent (together with the
Syndication Agents and the Documentation Agent, the
"Agents").
Ladies and Gentlemen:
We have acted as special counsel to the Agents in connection
with the execution and delivery of the Credit Agreement.
This opinion is delivered to you pursuant to Section 4.1(e)(iii)
of the Credit Agreement. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In arriving at the opinion expressed below, we have examined (a)
counterparts of the Credit Agreement, signed by Westinghouse and the Agents and
(b) such documents as we have deemed necessary or appropriate for the purposes
of this opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity, regularity and completeness of all documents
submitted to us as originals, the completeness of all documents submitted to us
as certified, conformed or photostatic copies and the conformity of such
documents to the original documents.
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We have also assumed that the Credit Agreement has been duly
authorized, executed and delivered by Westinghouse; that Westinghouse is duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to execute, deliver and
perform its obligations under the Credit Agreement; that Westinghouse is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; that the execution, delivery and performance by Westinghouse of the
Credit Agreement have been duly authorized by all necessary corporate action on
the part of Westinghouse, do not contravene the certificate of incorporation,
by-laws or similar organizational documents of Westinghouse, do not violate, or
require any consent not obtained under, any applicable law or regulation or any
order, writ, injunction or decree of any court or other Governmental Authority
binding upon Westinghouse and do not violate, or require any consent not
obtained under, any contractual obligation applicable to or binding upon
Westinghouse; and that the Credit Agreement constitutes a valid and legally
binding obligation of the Agents and the Lenders.
Based upon the foregoing, and subject to the qualifications and
comments set forth below, we are of the opinion that, insofar as the law of the
State of New York is concerned, the Credit Agreement constitutes a valid and
legally binding obligation of Westinghouse, enforceable against Westinghouse in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing, except that we express no
opinion as to (a) any indemnification obligations of Westinghouse under the
Credit Agreement to the extent such obligations might be deemed to be
inconsistent with public policy; (b) any provision of the Credit Agreement that
purports to establish an evidentiary standard for determinations by the Lenders
or either Agent; and (c) any setoff right contained in Section 2.18 of the
Credit Agreement authorizing any Lender to set off and apply deposits at any
time held, and any other indebtedness at any time owing, by such Lender to or
for the account of any party against any participation transferred to or by
such Lender.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State
of New York.
This opinion has been rendered solely for your benefit in
connection with the Credit Agreement and the transactions contemplated thereby,
may not be relied upon by you for any other purpose, or relied upon by any
other person, firm or corporation without our prior written consent, and may
not be furnished to any other person, firm or corporation other than any
assignee or participant under the Credit Agreement or any bank examiner or
other regulatory authority without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
119
Exhibit F to the
Credit Agreement
FORM OF CLOSING CERTIFICATE
WESTINGHOUSE ELECTRIC CORPORATION
Pursuant to Section 4.1(b) of the Credit Agreement dated as of
August 29, 1996 (the "Credit Agreement"; terms defined therein being used
herein as therein defined), among Westinghouse Electric Corporation
("Westinghouse"), the Lenders parties thereto, NationsBank, N.A. and The
Toronto-Dominion Bank, as Syndication Agents, The Chase Manhattan Bank, as
Documentation Agent, and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, the undersigned ___________________ of Westinghouse
hereby certifies as follows:
(1) The representations and warranties of Westinghouse set forth
in the Credit Agreement or which are contained in any certificate
furnished by or on behalf of Westinghouse pursuant to or in connection
with the Credit Agreement are true and correct in all material respects
on and as of the date hereof with the same effect as if made on the
date hereof except for representations and warranties expressly stated
to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material
respects as of such earlier date;
(2) No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to
be made on the date hereof and/or the issuance of any Letters of Credit
to be issued on the date hereof;
(3) ___________ is and at all times since ___ __, 199_ has been,
the duly elected and qualified [Assistant] Secretary of Westinghouse
and the signature set forth for such officer below is such officer's
true and genuine signature;
and the undersigned [Assistant] Secretary of Westinghouse certifies as follows:
(4) There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against Westinghouse, nor has any other
event occurred adversely affecting or threatening the continued
corporate existence of Westinghouse after the date hereof;
(5) Westinghouse is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization;
(6) Attached hereto as Annex 1 is a correct and complete copy of
resolutions duly adopted by the Board of Directors of Westinghouse on
_____________ __, 199_ authorizing (i) the execution, delivery and
performance of the Credit Agreement and (ii) the transactions
contemplated by the Credit Agreement; such resolutions have not in any
way been amended, modified, revoked or rescinded and have been in full
force and
120
2
effect since their adoption to and including the date hereof and are
now in full force and effect; such resolutions are the only corporate
proceedings of Westinghouse now in force relating to or affecting the
matters referred to therein; attached hereto as Annex 2 is a correct
and complete copy of the By-Laws of Westinghouse as in effect at all
times since __________ __, 199_ to and including the date hereof, and
such By-Laws have not been amended, repealed, modified or restated; and
attached hereto as Annex 3 is a correct and complete copy of the
Certificate of Incorporation of Westinghouse as in effect at all times
since _________ __, 199_ to and including the date hereof, and such
Certificate of Incorporation has not been amended, repealed, modified
or restated;
(7) The following Persons are now duly elected and qualified
officers of Westinghouse holding the offices indicated next to their
respective names below, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver, on behalf of Westinghouse, the Credit Agreement and any
certificate or other document to be delivered by Westinghouse pursuant
to the Credit Agreement:
Name Office Signature
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IN WITNESS WHEREOF, the undersigned have hereunto set our names
as of the date set forth below.
By: By:
----------------------- -----------------------------
Name: Name:
Title: Title: [Assistant] Secretary
Date: August 29, 1996
122
Annex 1
Resolutions
123
Annex 2
By-Laws
124
Annex 3
Certificate of Incorporation
125
Exhibit G to the
Credit Agreement
FORM OF ISSUING LENDER AGREEMENT
ISSUING LENDER AGREEMENT dated as of _________________, ____,
among WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation
("Westinghouse"), [NAME OF ISSUING LENDER], as Issuing Lender (in such capacity,
the "Issuing Lender"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders (the "Lenders") parties to the Credit Agreement dated as of August 29,
1996 (as amended, supplemented or otherwise modified, from time to time, the
"Credit Agreement"), among Westinghouse, the Lenders, NationsBank, N.A. and The
Toronto-Dominion Bank, as syndication agents, The Chase Manhattan Bank, as
documentation agent, and the Administrative Agent.
The parties hereto have entered into this Issuing Lender
Agreement in connection with the Credit Agreement. Terms used herein and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
SECTION 1. Designation as Issuing Lender. The Issuing Lender is
hereby designated as an "Issuing Lender" as contemplated by the Credit
Agreement and the Issuing Lender agrees, subject to the terms and conditions
set forth herein and in the Credit Agreement, to become an Issuing Lender under
the Credit Agreement pursuant to which the Issuing Lender agrees to issue and
deliver or to extend the expiry of Letters of Credit [and act as Issuing Lender
with respect to Designated Letters of Credit specified on Schedule 1 hereto, in
each case] for the account of Westinghouse in an aggregate undrawn amount at
any one time outstanding which does not exceed [$____________].
SECTION 2. Letters of Credit. On the terms and conditions set
forth in the Credit Agreement and relying upon the representations and
warranties set forth in the Credit Agreement, the Issuing Lender agrees, at any
time and from time to time, in accordance with the provisions of Section 2.7 of
the Credit Agreement, to issue Letters of Credit pursuant to the procedures set
forth in Section 2.7 of the Credit Agreement. The Issuing Lender agrees that it
shall comply with the obligations applicable to an Issuing Lender under the
Credit Agreement, including the obligation to give written or telecopy notice
to Westinghouse and the Administrative Agent of the matters specified in
Section 2.7(f) of the Credit Agreement.
SECTION 3. Obligation to Repay. Westinghouse agrees to pay to
the Administrative Agent all amounts required to pay all drafts presented under
Letters of Credit in accordance with the provisions of Section 2.7(g) of the
Credit Agreement.
SECTION 4. Payment of Fees. Westinghouse agrees to pay to the
Issuing Lender the Issuing Lender Fees agreed to from time to time between
Westinghouse and the Issuing Lender.
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2
SECTION 5. Documentary Credit Practices. Westinghouse agrees
that, except as otherwise expressly agreed to in writing by the Issuing Lender
and Westinghouse prior to the Issuing Lender's issuance of any Letter of
Credit, to the extent applicable, the terms of the Uniform Customs and Practice
for Documentary Credits, 1993 revision, International Chamber of Commerce
Publication No. 500, and all subsequent amendments and revisions thereto are
incorporated herein by reference and shall be deemed a part hereof and shall
apply to the Letters of Credit and to this Agreement.
SECTION 6. Obligations Absolute. As and to the extent set forth
in Section 2.7(g) of the Credit Agreement, the obligation of Westinghouse to
pay the amounts referred to above in Sections 3 and 4 shall be absolute,
unconditional and irrevocable and shall be satisfied strictly in accordance
with the terms of the Credit Agreement and this Agreement.
SECTION 7. Notices. All communications and notices hereunder
shall be given as provided in Section 8.1 of the Credit Agreement.
SECTION 8. Binding Agreement; Assignments. This Agreement and
the terms, covenants and conditions hereof shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
Westinghouse and the Issuing Lender shall not be permitted to assign this
Agreement or any interest herein without the prior written consent of the other
parties to this Agreement.
SECTION 9. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS AND PRINCIPLES OF SUCH STATE.
SECTION 10. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 11. Interpretation. To the extent that the terms and
conditions of this Agreement conflict with the terms and conditions of the
Credit Agreement, the terms and conditions of the Credit Agreement shall
control.
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3
IN WITNESS WHEREOF, the parties hereto have duly executed this
Issuing Lender Agreement as of the day and year first above written.
WESTINGHOUSE ELECTRIC [NAME OF ISSUING LENDER],
CORPORATION as Issuing Lender
By: By:
----------------------- -----------------------------
Name: Name:
Title: Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
By:
-----------------------
Name:
Title:
