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Exhibit (b)(4)
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REVOLVING CREDIT AGREEMENT
dated
as of December 10, 1997
among
TRW INC.
and
THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE
PAGES HEREOF
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TABLE OF CONTENTS
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PREAMBLE..................................................................... 1
SECTION 1 COMMITMENT OF THE BANKS; TYPES
OF LOANS; PROCEDURES FOR BORROWING
OR CONVERTING................................................. 1
1.1 Commitment.................................................... 1
1.2 Extension of Revolving Period Termination Date................ 2
1.3 Various Types of Loans........................................ 2
1.4 Notice of Borrowing, Continuation, or
Conversion............................................... 2
1.5 Conversion and Continuation Procedures........................ 3
1.6 Negotiated Loans.............................................. 3
1.7 Local Currency Loans.......................................... 3
1.8 Loans to Designated Subsidiaries.............................. 4
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS.................... 4
2.1 Repayment of Loans............................................ 4
2.2 Notes......................................................... 4
2.3 Other Provisions of the Notes................................. 5
2.4 Recordkeeping................................................. 5
SECTION 3 INTEREST...................................................... 5
3.1 Interest Rates................................................ 5
3.2 Interest Payment Dates........................................ 6
3.3 Interest Periods for Fixed Rate Loans......................... 6
3.4 Setting and Notice of Rates................................... 6
3.5 Computation of Interest....................................... 6
SECTION 4 FEES.......................................................... 7
4.1 Commitment Fee................................................ 7
4.2 Computation of Fees........................................... 7
SECTION 5 REDUCTION OR TERMINATION OF THE
COMMITMENTS; PREPAYMENT....................................... 7
5.1 Reduction or Termination of the Commitments................... 7
5.2 Optional Prepayment........................................... 7
5.3 Mandatory Prepayment.......................................... 7
(i)
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SECTION 6 MAKING AND APPLICATION OF PAYMENTS............................ 8
6.1 Making of Payments............................................ 8
6.2 Application of Certain Payments............................... 8
6.3 Due Date Extension............................................ 8
SECTION 7 INCREASED COSTS AND TAXES..................................... 8
7.1 Increased Capital............................................. 8
7.2 Increased Costs............................................... 9
7.3 Basis for Determining Interest Rate Inadequate................10
7.4 Changes in Law Rendering Certain Loans Unlawful...............10
7.5 Funding Losses................................................11
7.6 Currency Indemnity............................................11
7.7 Increased Tax Costs...........................................12
SECTION 8 WARRANTIES....................................................12
8.1 Corporate Organization........................................12
8.2 Authorization; No Conflict....................................13
8.3 Validity and Binding Nature...................................13
8.4 Financial Statements..........................................13
8.5 Litigation....................................................13
8.6 Compliance with ERISA.........................................13
8.7 Environmental Matters.........................................14
8.8 Taxes.........................................................14
8.9 Government Regulation.........................................14
SECTION 9 COVENANTS.....................................................14
9.1 Reports, Certificates and Other Information...................14
9.1.1 Audit Report...........................................14
9.1.2 Quarterly Reports......................................14
9.1.3 Compliance Certificates................................15
9.1.4 Current Reports........................................15
9.1.5 Other Information......................................15
9.2 Net Worth.....................................................15
9.3 Liens.........................................................15
9.4 Sale and Leaseback............................................17
9.5 Mergers, Consolidations, Sales................................18
SECTION 10 CONDITIONS OF LENDING.........................................18
10.1 Initial Loan to the Company...................................18
(ii)
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10.1.1 Note...................................................18
10.1.2 Resolutions............................................18
10.1.3 Incumbency and Signatures..............................19
10.1.4 Opinion of Counsel.....................................19
10.2 Loans to Designated Subsidiaries..............................19
10.2.1 Resolutions............................................19
10.2.2 Acceptance of this Agreement...........................19
10.2.3 Incumbency and Signatures..............................19
10.3 All Loans.....................................................19
10.4 Conversions...................................................19
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT............................19
11.1 Events of Default.............................................20
11.1.1 Nonpayment of Notes or Fees............................20
11.1.2 Nonpayment of Other Indebtedness for
Borrowed Money....................................20
11.1.3 Bankruptcy or Insolvency...............................20
11.1.4 Noncompliance with Other Provisions....................20
11.1.5 Warranties.............................................21
11.1.6 Judgments..............................................21
11.2 Effect of Event of Default....................................21
SECTION 12 GUARANTY......................................................21
SECTION 13 CERTAIN DEFINITIONS...........................................22
SECTION 14 GENERAL.......................................................32
14.1 Waiver; Amendments............................................32
14.2 Confirmations.................................................33
14.3 Notices.......................................................33
14.4 Computations..................................................34
14.5 Confidentiality...............................................34
14.6 Assignments and Participations................................35
14.6.1 Assignments............................................35
14.6.2 Participations.........................................35
14.6.3 Disclosure of Information..............................35
14.7 Securities Laws...............................................35
14.8 Costs and Expenses............................................35
14.9 Governing Law.................................................36
14.10 Counterparts..................................................36
14.11 Captions......................................................36
14.12 Successors and Assigns........................................36
14.13 Entire Agreement..............................................36
(iii)
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14.14 Appointment of Administrator..................................36
14.15 Non-U.S. Bank Tax Information.................................37
14.16 Regulation U..................................................37
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Opinion of Counsel to the Company
SCHEDULES
SCHEDULE 8.5 Undisclosed Material Legal Proceedings
(iv)
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REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of December 10, 1997 (this
"AGREEMENT"), is among TRW Inc., an Ohio corporation (the "COMPANY") and the
financial institutions listed on the signature pages hereof together with their
successors or assigns (collectively, the "BANKS" and individually, a "BANK").
Certain terms being used in this Agreement are hereinafter defined in Section
13.
W I T N E S S E T H:
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WHEREAS, the Company has requested the Banks to make certain unsecured
loans to the Company and certain Subsidiaries of the Company designated by the
Company for general corporate purposes, including without limitation for working
capital, capital expenditures, acquisitions (directly or indirectly) of assets,
stock or other ownership interests, and repurchases or redemptions of
securities; and
WHEREAS, the Banks have agreed to make such loans on the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the parties hereto agree as follows:
SECTION 1 COMMITMENT OF THE BANKS; TYPES OF LOANS;
PROCEDURES FOR BORROWING OR CONVERTING.
1.1 COMMITMENT. Subject to the terms and conditions of this Agreement, each
of the Banks, severally and for itself alone, agrees to make loans
(collectively, the "LOANS" and individually, a "LOAN") to the Company and, as
provided in Section 1.8, to any Designated Subsidiary on a revolving basis from
time to time during the period (the "REVOLVING PERIOD") from the date hereof
through the Revolving Period Termination Date, as it may be extended from time
to time pursuant to Section 1.2, in such aggregate amounts as the Company or any
Designated Subsidiary may from time to time request from such Bank; provided,
however, that the aggregate principal amount of Loans that any Bank shall be
committed to have outstanding to the Company and the Designated Subsidiaries
shall not at any one time exceed the amount set forth opposite such Bank's
signature hereto, or any subsequent amendment hereto (except to the extent
provided in Section 1.9 hereof). The foregoing commitment of each Bank to make
Loans as reduced from time to time in accordance with the terms hereof is herein
called such Bank's "COMMITMENT" and the commitments of all Banks are herein
sometimes collectively called the "COMMITMENTS." Loans may not be made after the
Revolving Period Termination Date, as it may be extended from time to time
pursuant to Section 1.2, but if the Company shall have made the election
provided in clause (ii) of Section 2.1, Loans outstanding at the end of the
Revolving Period may thereafter be Continued or Converted as herein provided.
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1.2 EXTENSION OF REVOLVING PERIOD TERMINATION DATE. No later than 60 days
prior to the Revolving Period Termination Date then in effect, the Company may
request, by written notice, that any one or more of the Banks extend the
Revolving Period Termination Date as to that Bank's Commitment for a period of
one year commencing on the Revolving Period Termination Date then in effect.
Each Bank receiving such an extension request from the Company shall notify the
Company in writing no later than 20 days prior to the Revolving Period
Termination Date then in effect of such Bank's determination to extend or not to
extend the Revolving Period Termination Date. A notice given by a Bank to extend
the Revolving Period Termination Date pursuant to this Section 1.2 shall be
irrevocable (subject to Section 11.2). Any Bank that fails to respond to the
Company's request to extend the Revolving Period Termination Date within such
time period shall be deemed to have given notice to the Company that such Bank
does not desire to extend the Revolving Period Termination Date.
1.3 VARIOUS TYPES OF LOANS. Each Loan shall be either a Base Rate Loan, a
Domestic CD Loan, a Eurocurrency Loan, a Local Currency Loan, or a Negotiated
Loan (each herein called a "TYPE" of Loan), as the Company shall specify in the
related notice of borrowing, Continuation, or Conversion pursuant to Section 1.4
or 1.5. Domestic CD Loans, Eurocurrency Loans, Local Currency Loans, and
Negotiated Loans bearing interest at a fixed rate for a fixed period of time are
sometimes collectively called "FIXED RATE LOANS." Each Loan shall be made in
U.S. Dollars or such other currency as is requested by the Company and shall be
available at the time and for the period requested by the Company. Each Loan
shall bear interest at the rate specified in Section 3.1 and shall mature on and
be due and payable in full on the earliest of (i) the Termination Date, (ii) the
end of an Interest Period (unless the Loan is Continued or Converted) or (iii)
such other date as the Company and the Relevant Bank shall otherwise agree in
writing. The Eurocurrency specified in any notice of borrowing, Continuation, or
Conversion given by the Company pursuant to Section 1.4 or 1.5 shall be deemed
to be available for purposes of this Agreement, unless the Relevant Bank gives
the Company notice (which may be by telephone) no later than the earlier of (a)
12:00 noon, Cleveland time, on the second Business Day prior to the proposed
date making the Eurocurrency Loan, or (b) one hour after the Relevant Bank has
received the notice of borrowing, Continuation, or Conversion, as applicable.
The Relevant Bank's determination in good faith that a proposed Eurocurrency is
or is not available shall be final.
1.4 NOTICE OF BORROWING. CONTINUATION. OR CONVERSION. The Company, through
an Authorized Person, shall give written or telephonic notice to the Relevant
Bank of each proposed borrowing from such Bank, or Conversion or Continuation of
Loans made by such Bank, by 11:00 a.m., Cleveland time, (a) on the proposed date
of such borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Base Rate Loans, Domestic CD Loans, or Negotiated
Loans, (b) at least two Business Days prior to the proposed date of such
borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Eurocurrency Loans (provided that at least one
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Business Day prior to such written or telephonic notice of proposed nondollar
denominated Eurocurrency Loan borrowing, Continuation or Conversion, the
Company, through an Authorized Person, shall give written or telephonic notice
to the Relevant Bank of the Company's intention to request a Eurocurrency Loan),
and (c) with respect to Local Currency Loans, at least two Business Days prior
to the proposed date of such borrowing, Conversion, or Continuation or such
other period of time as is customary for the particular Local Currency. Each
such notice shall be effective upon receipt by the Relevant Bank and shall
specify the date, amount, currency, and type of borrowing and, in the case of a
borrowing comprising Fixed Rate Loans, the initial Interest Period for such
borrowing. Each notice of a Conversion or Continuation of Loans shall specify
the date and amount of such Conversion or Continuation, the Loans to be so
Converted or Continued, the type and currency of Loans to be Converted into or
Continued, and, in the case of a Conversion into or Continuation of Fixed Rate
Loans, the initial or succeeding Interest Period, as the case may be. Each
borrowing shall be on a Business Day and shall be in an aggregate amount of not
less than 1,000,000 U.S. Dollars for Base Rate Loans and not less than 5,000,000
U.S. Dollars (or the Eurocurrency Equivalent Amount) for any other type of Loan,
other than Local Currency Loans (which shall be as agreed between the Company
and the Relevant Bank).
1.5 CONVERSION AND CONTINUATION PROCEDURES. The Company may convert all or
part of any outstanding Loans to Loans of a different type, or may elect to
continue any Fixed Rate Loans for an additional Interest Period, by giving
notice to the Relevant Bank of such Conversion or Continuation within the time
periods specified in Section 1.4. If, with respect to any Fixed Rate Loan, the
Company shall not either repay the Loan in full by 2:00 p.m., Cleveland time, on
the last day of the Interest Period applicable thereto or give notice of its
intention to Convert or Continue such Fixed Rate Loan within the time periods
specified in Section 1.4, then the Company shall be deemed to have requested
that such Loan automatically be converted into a Base Rate Loan at the end of
such Interest Period (and such Loan shall automatically so Convert into a Base
Rate Loan at the end of such Interest Period). Except as provided in
Section 7.4, no Fixed Rate Loans shall be Converted on any day other than the
last day of the current Interest Period relating to such Loans.
1.6 NEGOTIATED LOANS. From time to time, the Company may request, through
an Authorized Person, and a Bank may, but shall not be obligated to, agree to
make, a Loan in U.S. Dollars bearing interest at a rate per annum, and for a
fixed period, agreed to by the Relevant Bank and the Company (each, a
"NEGOTIATED Loan" and collectively, the "NEGOTIATED LOANS").
1.7 LOCAL CURRENCY LOANS. From time to time, the Company may request,
through an Authorized Person, and a Bank may, but shall not be obligated to,
agree to make a Loan in a Local Currency specified by the Company bearing
interest at a rate per annum agreed to by the Bank and the Company (each, a
"LOCAL CURRENCY LOAN" and collectively, the "LOCAL CURRENCY LOANS"). Repayments
of principal of and interest on Local Currency Loans shall be made in the
currency borrowed and shall be paid to the local office of the Relevant Bank
which made the Loan. The local office
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may request additional documentation of the indebtedness if customary at the
place of business of the branch; provided, however, that the terms and
conditions of that documentation shall be consistent with those set forth in
this Agreement unless unlawful or ineffective under local law.
1.8 LOANS TO DESIGNATED SUBSIDIARIES. Each Designated Subsidiary may
request, through an Authorized Person, Local Currency Loans or Eurocurrency
Loans and Convert or Continue such Loans, and shall repay the principal of and
accrued interest on such Loans, all as though the Designated Subsidiaries were
parties to this Agreement and references to the "Company" in Sections 1.3, 1.4,
1.5, 1.7, 2.1, 3.1, 3.4, 3.5, 5.2 and 6.1 shall mean and include the Designated
Subsidiaries. The Relevant Bank may request additional documentation of the
indebtedness if customary at the place of business of the Relevant Bank;
provided, however, that the terms and conditions of that documentation shall be
consistent with those set forth in this Agreement unless unlawful or ineffective
under local law.
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS.
2.1 REPAYMENT OF LOANS. The Company hereby promises to pay to each Bank the
aggregate unpaid principal amount of such Bank's Loans on the earliest of:
(i) the Revolving Period Termination Date, unless the Company shall
have made the election provided for in clause (ii) below;
(ii) the Term-Out Maturity Date, if the Company shall have elected in
a written notice delivered to all of the Banks no later than 15
days prior to the Revolving Period Termination Date to pay, on
the Term-Out Maturity Date, all Loans which are outstanding at
the end of the Revolving Period;
(iii) the last day of the applicable Interest Period for such Loan
(unless the Loan is Continued or Converted); or
(iv) such other date as the Company and the Relevant Bank may agree
in writing.
Repayment of any Eurocurrency Loan shall be in the same currency in which such
Loan was advanced.
2.2 NOTES. The Loans of each Bank shall be evidenced by a promissory note
(individually, a "NOTE", and collectively for all Banks, the "NOTES")
substantially in the form set forth in Exhibit A, with appropriate insertions,
dated the date of the initial Loan (or such earlier date as shall be
satisfactory to the Relevant Bank), payable to the order of such Bank in the
principal amount of such Bank's
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Commitment (or, if less, in the aggregate unpaid principal amount of all of such
Bank's Loans hereunder).
2.3 OTHER PROVISIONS OF THE NOTES. Each Note shall provide for the payment
of interest as provided in Section 3.
2.4 RECORDKEEPING. Each Bank shall record in its records, or at its option
on the schedule attached to its Note, the date, amount, and type of each Loan
made by such Bank, each repayment, Continuation, or Conversion thereof, and the
dates on which each Interest Period for each Fixed Rate Loan shall begin and
end. The aggregate unpaid principal amount so recorded shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on such Note. The
failure so to record any such amount or any error in so recording any such
amount, however, shall not limit or otherwise affect the obligations of the
Company hereunder or under any Note to repay the principal amount of the Loans,
together with all interest accruing thereon.
SECTION 3 INTEREST.
3.1 INTEREST RATES. With respect to each Loan, the Company hereby promises
to pay interest on the unpaid principal amount thereof for the period commencing
on the date of such Loan until such Loan is paid in full, as follows:
(a) At all times while such Loan is a Base Rate Loan, at a rate per
annum equal to the Base Rate from time to time in effect;
(b) At all times while such Loan is a Domestic CD Loan, during each
Interest Period, at a rate per annum equal to the Domestic CD Rate
(Adjusted) applicable to such Interest Period, plus the Applicable
Margin;
(c) At all times while such Loan is a Eurocurrency Loan, during each
Interest Period, at a rate per annum equal to the Eurocurrency
Rate (Reserve Adjusted) applicable to such Interest Period, plus
the Applicable Margin; and
(d) At all times while such Loan is a Negotiated Loan or a Local
Currency Loan, at the rate per annum agreed to by the Company and
the Relevant Bank pursuant to Section 1.6 or 1.7, as applicable.
Notwithstanding the provisions of the preceding clauses (a), (b), (c) or (d) and
subject to Section 1.5, in the event that any principal of any Loan is not paid
when due (whether by acceleration or otherwise), after the due date of such
principal until such principal is paid, the unpaid principal amount of, and
accrued but unpaid interest on, Revolving Loan shall bear interest at a rate per
annum equal to the higher of the rate
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borne by such Loan or the Relevant Bank's Base Rate from time to time in effect,
plus 1% per annum, subject to the maximum applicable legal rate.
3.2 INTEREST PAYMENT DATES. Accrued interest on each Base Rate Loan
outstanding for 45 days or more shall be payable (i) quarterly in arrears on the
tenth day of each April, July, October, and January for the quarterly period
ended on the last day of the preceding month, and (ii) at maturity, commencing
with the earlier of such dates to occur after the date hereof. Accrued interest
on each Base Rate Loan outstanding for less than 45 days shall be payable in
full on the date such Base Rate Loan is paid in full. Except as otherwise agreed
by the Relevant Bank, accrued interest on each Fixed Rate Loan shall be payable
on the last day of the Interest Period of each such Loan (or, in the case of a
Domestic CD Loan or Negotiated Rate Loan with an Interest Period of 90 days or
longer or a Eurocurrency Loan with an Interest Period of three months or longer,
accrued interest shall be payable quarterly in arrears on the tenth day of each
April, July, October and January and on the last day of each such Interest
Period). After maturity, accrued interest on all Loans shall be payable on
demand. Interest on any Eurocurrency Loan shall be paid in the same currency in
which such Loan was advanced.
3.3 INTEREST PERIODS FOR FIXED RATE LOANS. Prior to each borrowing,
Continuation, or Conversion of Fixed Rate Loans, the Company shall specify, in
the related notice of borrowing, Continuation, or Conversion pursuant to
Sections 1.4 or 1.5, the duration of the Interest Period for such Fixed Rate
Loans. Each notice to the Relevant Bank of an Interest Period shall be in
writing or by telephone and shall be given by an Authorized Person.
3.4 SETTING AND NOTICE OF RATES. For each Loan made hereunder, the
applicable interest rate for each Interest Period or other period shall be the
rate quoted by the Relevant Bank to the Company for that particular type of
Loan. The Relevant Bank shall, upon written request of the Company, deliver to
the Company a statement showing the calculation of (i) any applicable Domestic
CD Rate (Adjusted), (ii) any applicable Eurocurrency Rate (Reserve Adjusted) or
(iii) the rate of interest per annum applicable to Negotiated Loans or Local
Currency Loans hereunder.
3.5 COMPUTATION OF INTEREST. Interest shall be computed for the actual
number of days elapsed (with interest accruing on the first day, but not the
last day, of such Loan) on the basis of (a) with respect to Domestic CD Loans
and Eurocurrency Loans, a 360 day year, (b) with respect to Base Rate Loans, a
365 or 366 day year, as the case may be, (c) with respect to Negotiated Loans, a
365 or 366 day year, as the case may be, or such other basis as is agreed to by
the Company and the Relevant Bank, and (d) with respect to Local Currency Loans,
on a basis consistent with local customs that is agreed to by the Relevant Bank
and the Company.
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SECTION 4 FEES.
4.1 COMMITMENT FEE. The Company agrees to pay to each Bank a commitment
fee, for the period from and including the date of this Agreement to the
Revolving Period Termination Date, on the daily average of the Unused Amount of
such Bank's Commitment hereunder equal to the Applicable Commitment Fee in
effect from time to time times the Unused Amount. Such commitment fee shall be
payable quarterly in arrears on the tenth day of each April, July, October, and
January (the first such payment to be made on January 10, 1998) for the
quarterly period ended on the last day of the preceding month and on the
Revolving Period Termination Date. The Company may make such payments according
to the Electronic Payment Instructions.
4.2 COMPUTATION OF FEES. Fees shall be computed for the actual number of
days elapsed on the basis of a 365 or 366 day year, as the case may be.
SECTION 5 REDUCTION OR TERMINATION OF THE COMMITMENTS; PREPAYMENT.
5.1 REDUCTION OR TERMINATION OF THE COMMITMENTS. The Company may from time
to time prior to the Termination Date on at least three Business Days' prior
written notice given by an Authorized Person to any Bank permanently reduce the
amount of such Bank's Commitment to an amount not less than the aggregate unpaid
principal amount of the Loans made by such Bank then outstanding. Any such
reduction shall be in an aggregate amount of not less than 1,000,000 U.S.
Dollars, or such lesser amount of such Bank's Unused Amount then remaining.
5.2 OPTIONAL PREPAYMENT. The Company may from time to time prepay the Loans
in whole or in part, provided that (a) an Authorized Person shall give the
Relevant Bank not less than three Business Days' prior notice thereof,
specifying the Loans to be prepaid, and the date and amount of prepayment and
(b) each partial prepayment shall be in the principal amount of 1,000,000 U.S.
Dollars (or the Eurocurrency or Local Equivalent Amount thereof) or such lesser
amount as is then outstanding on the Loan being prepaid.
5.3 MANDATORY PREPAYMENT. On each day on which the aggregate outstanding
principal amount of Loans owing to any Bank on such day exceeds (whether as a
result of currency fluctuations or otherwise) such Bank's Commitment hereunder,
the Company shall pay to such Bank on demand a mandatory prepayment in the
amount of such excess. Mandatory prepayments required by this Section 5.3 shall
be applied first to Base Rate Loans until paid in full and then, at the
Company's election and in the order specified by the Company, to Fixed Rate
Loans.
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SECTION 6 MAKING AND APPLICATION OF PAYMENTS.
6.1 MAKING OF PAYMENTS. Except as otherwise provided in Section 11.2
hereof, all payments (including those made pursuant to Section 5) of principal
of, or interest on, the Loans shall be made by the Company to the Relevant Bank
in immediately available funds in the Obligation Currency.
6.2 APPLICATION OF CERTAIN PAYMENTS. Each payment of principal on any Loan
shall be applied first to Base Rate Loans and then to such of the other Loans as
the Company shall direct by written or telephonic notice given by an Authorized
Person to the Relevant Bank on or before the date of such payment, or in the
absence of such notice, as the Relevant Bank shall determine in its discretion.
6.3 DUE DATE EXTENSION. If any payment of principal or interest with
respect to any of the Loans or Notes falls due on a Saturday, Sunday, or other
day which is not a Business Day, then such due date shall be extended to the
next following Business Day (except as provided in the last sentence of the
definition of Interest Period), and additional interest shall accrue and be
payable for the period of such extension.
SECTION 7 INCREASED COSTS AND TAXES.
7.1 INCREASED CAPITAL.
(a) If, after the date of this Agreement, the adoption of any
applicable law, rule, or regulation regarding capital adequacy, or
any change therein, or change in the interpretation or
administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any request
or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank, or comparable
agency, has the effect of reducing the rate of return on such
Bank's capital as a consequence of its obligations hereunder to a
level below that which such Bank would have achieved but for such
adoption, change, or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time within
15 days after demand by such Bank, the Company shall pay to such
Bank such additional amount or amounts as will compensate such
Bank for such reduction; provided, that, no Bank shall request,
and the Company shall not be obligated to pay, any amounts in
excess of the amounts charged by such Bank to similarly situated
borrowers of such Bank under revolving credit facilities similar
to the one provided herein. Notwithstanding the foregoing, a Bank
shall not be entitled to compensation from the Company for any
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such additional amounts incurred more than 30 days before the date
on which the Bank notifies the Company of any event which would
entitle the Bank to compensation pursuant to this Section 7.1.
(b) Each Bank will promptly notify the Company of any event of which
it has knowledge that will entitle such Bank to compensation
pursuant to this Section 7.1, together with a certificate signed
by an authorized officer of the Bank setting forth the basis of
such demand and certifying that the amounts demanded hereunder are
not in excess of the amounts charged by such Bank to similarly
situated borrowers of such Bank under revolving credit facilities
similar to the one provided herein. The Bank will designate a
different lending office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Bank, be otherwise disadvantageous
to such Bank or contrary to its stated policies. The Bank's
certification of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of demonstrable
error. In determining such amount, such Bank may use reasonable
averaging and attribution methods.
7.2 INCREASED COSTS. If, after the date hereof, the adoption of any
applicable law, rule, or regulation or any change therein, or any change in the
interpretation or administration thereof, or compliance by any Bank with any
request, or directive (whether or not having the force of law) of any such
authority, central bank, or comparable agency,
(a) shall subject any Bank to any tax, duty, or other charge with
respect to its Fixed Rate Loans, its Notes or its obligation to
make Fixed Rate Loans, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on its Fixed
Rate Loans or any other amounts due under this Agreement in
respect of its Fixed Rate Loans or its obligation to make Fixed
Rate Loans (except for the imposition of any tax or changes in the
rate of tax imposed on the overall income of such Bank); or
(b) shall impose, modify, or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors
of the Federal Reserve System, but excluding any reserve included
in the determination of interest rates pursuant to Section 3),
special deposit, or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Bank;
and as a result of any of the foregoing the cost to such Bank of making or
maintaining any Fixed Rate Loan is increased (or a cost is imposed on such
Bank), or the amount of any sum received or receivable by such Bank under this
Agreement or under its
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Notes with respect thereto is reduced, then within 15 days after demand by such
Bank (which demand shall be accompanied by a statement setting forth the basis
of such demand), the Company shall pay directly to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or such
reduction. Notwithstanding the foregoing, a Bank shall not be entitled to any
compensation from the Company for any such increased cost or such reduction
attributable to any period that is more than 30 days before the date on which
the Bank notifies the Company of any event which would entitle the Bank to
compensation pursuant to this Section 7.2. No Bank is entitled to reimbursement
for any amounts paid as a result of taxes currently imposed on such Bank.
7.3 BASIS FOR DETERMINING INTEREST RATE INADEQUATE. If with respect to any
Interest Period:
(a) a Bank reasonably determines that deposits in a requested
Eurocurrency (in the applicable amounts) are not being offered to
the Bank in the relevant market for such Interest Period requested
by the Company, or a Bank otherwise reasonably determines (which
determination shall be binding and conclusive on all parties) that
by reason of circumstances affecting the interbank eurocurrency
market adequate and reasonable means do not exist for ascertaining
the applicable Eurocurrency Rate (Reserve Adjusted); or
(b) a Bank advises the Company that the making or funding of
Eurocurrency Loans has become impracticable as a result of an
event occurring after the date of this Agreement which in the
opinion of such Bank materially affects Eurocurrency Loans,
then: (i) the affected Bank shall promptly notify the Company of such
circumstance, (ii) so long as such circumstances shall continue the affected
Bank shall not be under any obligation to make, Continue, or Convert Loans into
Eurocurrency Loans, and (iii) on the last day of the then current Interest
Period for Eurocurrency Loans, such Eurocurrency Loans shall, unless then repaid
in full or Converted into a Loan of a different type pursuant to Section 1.5,
automatically Convert to Base Rate Loans.
7.4 CHANGES IN LAW RENDERING CERTAIN LOANS UNLAWFUL. In the event that
there occurs after the date hereof any change in applicable laws or regulations
(including the adoption of any new laws), or any change in the interpretation of
applicable laws or regulations by any governmental or other regulatory body
charged with the administration thereof, that makes it unlawful for a Bank to
make, maintain, or fund a type of Fixed Rate Loans, then (a) such Bank shall
promptly notify the Company of such circumstance, (b) the obligation of such
Bank to make, Continue, or Convert Loans into the type of Fixed Rate Loans made
unlawful for that Bank shall, upon the effectiveness of such event, be suspended
for the duration of such unlawfulness, and (c) on the last day of the current
Interest Period for Fixed Rate Loans of such type (or, in any event, if the Bank
affected by such change so requests, on such earlier date as
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may be required by the relevant law, regulation, or interpretation), the Fixed
Rate Loans of such type made by such Bank shall, unless then repaid in full or
Converted into a Loan of a different type pursuant to Section 1.5, automatically
Convert to Base Rate Loans.
7.5 FUNDING LOSSES. The Company hereby agrees that upon demand by any Bank
(which demand shall be accompanied by a statement setting forth the basis for
the calculations of the amount being claimed), the Company will indemnify such
Bank against any net loss or expense which such Bank sustains or incurs
(including, without limitation, any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such Bank
to fund or maintain Fixed Rate Loans), as reasonably determined by such Bank, as
a result of (a) any payment or prepayment or Conversion of any Fixed Rate Loan
of such Bank on a date other than the last day of an Interest Period for such
Loan, or (b) any failure of the Company to borrow, Continue, or Convert any
Loans on a date specified therefor in a notice of borrowing (which shall not
include the Company's notice of intention to request a Eurocurrency Loan),
Continuation, or Conversion pursuant to this Agreement.
7.6 CURRENCY INDEMNITY.
(a) The obligation of the Company under this Agreement and the Notes
to make payments in Dollars or in any Eurocurrency or Local
Currency in which the Loans or any portion thereof are outstanding
(the "OBLIGATION CURRENCY") shall not be discharged or satisfied
by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency,
except to the extent to which such tender or recovery shall result
in the effective receipt by the Banks of the full amount of the
Obligation Currency expressed to be payable under this Agreement
or the Notes. If, for the purpose of obtaining or enforcing
judgment against the Company in any court or in any jurisdiction,
it becomes necessary to convert into any currency other than the
Obligation Currency (such other currency being hereinafter
referred to as the "JUDGMENT CURRENCY") an amount due in the
Obligation Currency under the Notes, the conversion shall be made,
at the option of the Relevant Bank, at the rate of exchange
prevailing on the Business Day immediately preceding the day on
which the judgment is given (such Business Day as the case may be,
being hereinafter in this Section 7.6 referred to as the "JUDGMENT
CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Company agrees to pay such
additional amounts as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the
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rate of exchange prevailing on the date of payment, will produce
the amount of the Obligation Currency which could have been
purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on
the Judgment Currency Conversion Date.
(c) Any amount due from the Company under the foregoing subparagraph
will be due as a separate debt and shall not be affected by
judgment being obtained for any other sums due otherwise
hereunder.
7.7 INCREASED TAX COSTS. The Company agrees to make all payments or
reimbursements under this Agreement free and clear of, and without deduction
for, any future taxes (including withholding taxes) imposed (except for any tax
or changes in the rate of tax imposed on overall income of any Bank) on payments
of principal, interest and fees or charges under the Agreement which are
attributable to, or represent, the application of any such tax for any time
period after the Company has received notice of such tax from such Bank. Such
Bank will use its reasonable efforts to minimize any taxes and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such tax(es) and will not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank or contrary to its stated
policies. In the event that the Company is required to directly pay any such
taxes, the Company agrees to furnish such Bank with official tax receipts
evidencing payment of such taxes within forty-five (45) days after the due date
for each such payment. Each Bank agrees that in the event that any such
additional amount paid or reimbursed by the Company to or for such Bank in
respect of any taxes be recovered, in whole or in part, by such Bank (by credit,
offset, deduction or otherwise), against or in computing any income, franchise
or other taxes, such Bank will promptly reimburse the Company the amount of such
recovery. A transferee of any interest in the Agreement or the Notes shall not
be entitled to the benefits of this Section 7.7 with respect to any taxes which
would not have been incurred if there had been no transfer.
SECTION 8 WARRANTIES.
The Company warrants to the Banks as of the date of this Agreement that:
8.1 CORPORATE ORGANIZATION. The Company is a corporation duly incorporated
and in good standing under the laws of the State of Ohio and the Company is duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction of the United States where, because of the nature
of its activities or properties, such qualification is required and where the
failure to be so qualified would materially and adversely affect the
consolidated financial condition of the Company and its Consolidated
Subsidiaries taken as a whole.
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8.2 AUTHORIZATION; NO CONFLICT. The execution, delivery, and performance by
the Company of this Agreement and the Notes are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any provision of applicable law in
effect on the date hereof or of the Amended Articles of Incorporation or
Regulations of the Company or of any agreement for borrowed money or other
material agreement binding upon the Company. The Company has duly executed and
delivered this Agreement.
8.3 VALIDITY AND BINDING NATURE. This Agreement is, and the Notes when duly
executed and delivered will be, legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms.
8.4 FINANCIAL STATEMENTS. The Company's audited consolidated financial
statements as at December 31, 1996 and its unaudited consolidated financial
statements as at September 30, 1997, copies of which have been furnished to each
Bank, have been prepared in accordance with GAAP, applied on a basis consistent
with that of the preceding fiscal year, and fairly present in all material
respects the consolidated financial condition and results of operations of the
Company and its Consolidated Subsidiaries as of the dates and for the periods
indicated, as applicable, and since the dates thereof until the date of this
Agreement there has been no material adverse change in the consolidated
financial condition of the Company and its Consolidated Subsidiaries taken as a
whole.
8.5 LITIGATION. Except as set forth in Schedule 8.5, there are no material
legal proceedings, other than ordinary routine litigation incidental to the
business, to which the Company or any of its Consolidated Subsidiaries is a
party or to which any of their respective properties is subject that are
required to be disclosed in the Company's periodic reports under the Securities
Exchange Act of 1934 and that have not been so disclosed.
8.6 COMPLIANCE WITH ERISA. Each member of the controlled group of
corporations (as defined in Section 414(b) of the Internal Revenue Code of
1986), which includes the Company (the "TRW GROUP"), has (i) fulfilled its
obligations under the minimum funding standards of Part 3 of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA") and Section 412 of the
Internal Revenue Code of 1986 ("CODE") with respect to each defined benefit plan
(as defined in Section 3 (35) of ERISA) maintained by a member of the TRW Group
("PLAN") and (ii) is in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each such Plan. No
member of the TRW Group has (x) sought a waiver of the minimum funding standard
under Section 412 of the Code in respect of any Plan, (y) failed to make any
contribution or payment required to be made to a Plan or to any multi-employer
plan (as defined in Section 3 (37)(A) of ERISA) or made any amendment to any
Plan which has resulted or could result in the imposition of a lien or the
posting of a bond or other security under ERISA or the Code or (z) incurred any
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liability under Title IV of ERISA other than the liability to the Pension
Benefit Guaranty Corporation for premiums under Section 4007 of ERISA.
8.7 ENVIRONMENTAL MATTERS. The Company has conducted periodic reviews of
the effect of compliance with federal, state and local requirements relating to
the discharge of materials into the environment, in the course of which it has
identified and evaluated potential liabilities and costs. The Company has
established accruals for matters that are probable and reasonably estimable as
required by FASB Statement No. 5, "Accounting for Contingencies." To the
Company's knowledge, any liability that may result from the resolution of known
environmental matters in excess of amounts accrued therefor will not have a
material adverse effect on the financial position of the Company.
8.8 TAXES. The Company and its Consolidated Subsidiaries have filed all
United Stated federal income tax returns and all other material tax returns
which are required to have been filed by them (subject to any available
extensions) and have paid all taxes indicated as due on such returns. The
Company has made adequate and reasonable provision for all material taxes not
yet due and payable, if any, and all material assessments, if any.
8.9 GOVERNMENT REGULATION. Neither the Company nor any of its Consolidated
Subsidiaries is registered as a public utility under the Public Utility Holding
Company Act of 1935 or as an investment company under the Investment Company Act
of 1940.
SECTION 9 COVENANTS.
Until the later of (i) the expiration or termination of the Commitments and
(ii) all obligations of the Company hereunder and under the Notes are paid in
full, the Company agrees that, unless at any time the Majority Banks shall
otherwise expressly consent in writing:
9.1 REPORTS. CERTIFICATES AND OTHER INFORMATION.
9.1.1 AUDIT REPORT. Within 120 days after each fiscal year of the
Company, the Company will provide to each Bank a copy of the Company's Annual
Report to Shareholders and its Annual Report on Form 10-K for the year then
ended, as filed with the Securities and Exchange Commission and which will
include an annual audit report of the Company, prepared on a consolidated basis
and in accordance with the Company's then current method of accounting, which
methods must be in accordance with GAAP, duly certified by independent certified
public accountants of nationally recognized standing selected by the Company.
9.1.2 QUARTERLY REPORTS. Within 60 days after each quarter (except the
last quarter) of each fiscal year of the Company, the Company will provide to
each
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Bank a copy of the Company's Quarterly Report on Form 10-Q for the quarter then
ended, as filed with the Securities and Exchange Commission.
9.1.3 COMPLIANCE CERTIFICATES. Contemporaneously with the furnishing
of a copy of each Annual Report on Form 10-K provided for in Section 9.1.1 and
of each Quarterly Report on Form 10-Q provided for in Section 9.1.2, the Company
will provide to each Bank a duly completed certificate in the form of Exhibit B
with appropriate insertions (each such certificate called a "COMPLIANCE
CERTIFICATE"), dated not more than 10 days prior to the date furnished, signed
by an officer of the Company, showing compliance with the Consolidated Net Worth
covenant set forth in Section 9.2, and to the effect that no Event of Default or
Unmatured Event of Default has occurred and is continuing or, if there is any
such an event, describing it and the steps, if any, being taken to cure it.
9.1.4 CURRENT REPORTS. The Company will provide to each Bank copies of
each Current Report on Form 8-K filed by the Company with the Securities and
Exchange Commission, promptly upon the filing thereof.
9.1.5 OTHER INFORMATION. The Company will provide to a Bank such other
information concerning the Company as such Bank may reasonably request from time
to time.
9.2 NET WORTH. The Company will not permit Consolidated Net Worth to be
less than 1,600,000,000 U.S. Dollars less an amount equal to the lesser of (i)
the aggregate amount expended by the Company subsequent to December 31, 1995 for
the repurchase of its common stock and (ii) 600,000,000 U.S. Dollars.
9.3 LIENS.
(a) The Company will not, and will not permit any Domestic Subsidiary
to, directly or indirectly, create or assume any mortgage,
encumbrance, lien, pledge, charge, or security interest of any
kind (collectively and individually, a "MORTGAGE" or "LIEN") upon
or in any of its interests in any Principal Property or upon or in
any shares of capital stock or indebtedness of any Domestic
Subsidiary, whether such interest, capital stock or indebtedness
is now owned or hereafter acquired, if such mortgage secures or is
intended to secure, directly or indirectly, the payment of any
indebtedness for money borrowed evidenced by notes, bonds,
debentures, or other written evidences of indebtedness (such
indebtedness for money borrowed being hereafter in Sections 9.3
and 9.4 collectively called "DEBT") without making effective
provision, and the Company in such case will make or cause to be
made effective provision, whereby all of the Loans shall be
secured by such mortgage equally and ratably with any other Debt
thereby secured; excluding, however, from the operation of this
Section 9.3:
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(i) mortgages on any Principal Property acquired, constructed,
or improved by the Company or any Domestic Subsidiary after
July 1, 1992 which are created or assumed contemporaneously
with, or within 120 days after, such acquisition or
completion of such construction or improvement to secure or
provide for the payment of any part of the purchase price
of such Principal Property or the cost of such construction
or improvement incurred after July 1, 1992, or, in addition
to mortgages contemplated by clauses (ii) and (iii) below,
mortgages on any such Principal Property existing at the
time or placed thereon at the time of acquisition or
leasing thereof by the Company or any Domestic Subsidiary,
or conditional sales agreements or other title retention
agreements with respect to any Principal Property now owned
or leased or hereafter acquired or leased by the Company or
a Domestic Subsidiary;
(ii) mortgages on property (including shares of capital stock or
indebtedness of a corporation) of a corporation existing at
the time such corporation becomes a Domestic Subsidiary or
is merged or consolidated with the Company or a Domestic
Subsidiary or existing at the time of a sale, lease, or
other disposition of the properties of such corporation (or
a division thereof) or other Person as an entirety or
substantially as an entirety (which includes the sale,
lease, or other disposition of all or substantially all the
assets thereof) to the Company or a Domestic Subsidiary,
provided that no such mortgage shall extend to any other
Principal Property of the Company or any Domestic
Subsidiary or to any shares of capital stock or any
indebtedness of any Domestic Subsidiary;
(iii) mortgages created by the Company or a Domestic Subsidiary
to secure indebtedness of the Company or a Domestic
Subsidiary to the Company or to a Wholly Owned Domestic
Subsidiary;
(iv) mortgages in favor of the United States of America or any
State, territory or possession thereof, or any foreign
country or any department, agency, instrumentality, or
political subdivision of any of such domestic or foreign
jurisdictions to secure partial, progress, advance, or
other payments pursuant to any contract or statute or to
secure any debt incurred for the purpose of financing all
or any part of
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the purchase price of, or the cost of constructing, the
property subject to such mortgages; and
(v) mortgages for the sole purpose of extending, renewing, or
replacing (or successively extending, renewing, or
replacing) in whole or in part any mortgage existing on
July 1, 1992 or referred to in the foregoing clauses (i) to
(iv) inclusive or of any debt secured thereby; provided,
however, that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension,
renewal, or replacement, and that such extension, renewal,
or replacement mortgage shall be limited to all or a part
of the property which secured the mortgage so extended,
renewed, or replaced (plus improvements on such property).
(b) Notwithstanding the provisions of paragraph (a) of this Section
9.3, the Company or any Domestic Subsidiary may, without equally
and ratably securing all the Loans, create or assume mortgages
which would otherwise be subject to the foregoing restrictions if
at the time of such creation or assumption, and after giving
effect thereto, Exempted Indebtedness does not exceed 15% of
Consolidated Net Tangible Assets determined as of a date not more
than 90 days prior thereto.
9.4 SALE AND LEASEBACK.
(a) The Company will not, and will not permit any Domestic Subsidiary
to, sell, lease or transfer any Principal Property owned by the
Company or a Domestic Subsidiary as an entirety, or any
substantial portion thereof, to anyone other than a Wholly Owned
Domestic Subsidiary (or the Company or a Wholly Owned Domestic
Subsidiary in the case of a Domestic Subsidiary) with the
intention of taking back a lease of such property (herein referred
to as a "SALE AND LEASEBACK TRANSACTION") except a lease for a
period of not more than 36 months by the end of which it is
intended that the use of such property by the lessee will be
discontinued; provided, that, notwithstanding the foregoing, the
Company or any Domestic Subsidiary may sell any such property and
lease it back if the net proceeds of such sale are at least equal
to the fair value (as determined by resolution adopted by the
Board of Directors of the Company) of such property, and (i) the
Company or such Domestic Subsidiary would be entitled pursuant to
paragraph (a) of Section 9.3 to create Debt secured by a mortgage
on the property to be leased in an amount equal to the
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Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing all the Loans, or
(ii) if such sale or transfer does not come within the exception
provided by the preceding clause (i), the net proceeds of such
sale shall, and in any such case the Company covenants that they
will, within 120 days after such sale, be applied (to the greatest
extent possible) either to the repayment of the Loans then
outstanding when due (whereupon the Commitments hereunder shall be
reduced, on a pro rata basis, to the extent that such net proceeds
are so applied) or to the retirement of other Consolidated Funded
Debt of the Company ranking at least on a parity with the Loans,
or in part to one or more of such alternatives and in part to
another.
(b) Notwithstanding the provisions of paragraph (a) of this Section
9.4, the Company or any Domestic Subsidiary may enter into Sale
and Leaseback Transactions if, at the time of such entering into,
and after giving effect thereto, Exempted Indebtedness does not
exceed 15% of Consolidated Net Tangible Assets determined as of a
date not more than 90 days prior thereto.
9.5 MERGERS, CONSOLIDATIONS, SALES. The Company shall not consolidate with,
or sell or convey all or substantially all its assets to, or merge into, any
other Person, unless (a) the Company is the surviving corporation of such
transaction; or (b) the Company is the nonsurviving party to a merger or
consolidation, the primary purpose of which is to effect a reincorporation of
the Company under the laws of another state.
SECTION 10 CONDITIONS OF LENDING.
The obligation of each Bank to make its Loans is subject to the following
conditions precedent:
10.1 INITIAL LOAN TO THE COMPANY. The obligation of each Bank to make its
initial Loan to the Company is, in addition to the conditions precedent
specified in Section 10.3, subject to the condition precedent that such Bank
shall have received all of the following, each duly executed and dated the date
of such Loan (or such earlier date as shall be satisfactory to such Bank), in
form and substance satisfactory to such Bank:
10.1.1 NOTE. The Note of the Company payable to the order of such
Bank, substantially in the form of Exhibit A.
10.1.2 RESOLUTIONS. Certified copies of resolutions of the Board of
Directors of the Company authorizing the Company to obtain Loans hereunder.
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10.1.3 INCUMBENCY AND SIGNATURES. A certificate of the Secretary or an
Assistant Secretary of the Company certifying the names of the officer or
officers of the Company who have signed or will sign this Agreement, the Notes,
and other documents provided for in this Agreement to be executed by the
Company, together with a sample of the true signature of each such officer, and
a certificate of authorization setting forth each Person who is authorized to
effect Loans and other transactions hereunder, together with a sample of the
true signature of each such Authorized Person. Each Bank may conclusively rely
on such certificates until it shall have received notice to the contrary.
10.1.4 OPINION OF COUNSEL. The opinion of counsel to the Company,
substantially in the form of Exhibit C.
10.2 LOANS TO DESIGNATED SUBSIDIARIES. The obligation of each Bank to make
any Loans to any Designated Subsidiary is subject to the condition precedent
that such Bank shall have received the following:
10.2.1 RESOLUTIONS. A certified copy of the resolutions of the
appropriate governing body of the Designated Subsidiary that requested the Loan
authorizing it to obtain Loans hereunder or such other evidence of corporate
authority as is customary in the country of domicile of the Designated
Subsidiary.
10.2.2 ACCEPTANCE OF THIS AGREEMENT. A letter signed by an authorized
officer of such Designated Subsidiary evidencing its agreement to be bound by
the terms of this Agreement with respect to each Loan made to it hereunder.
10.2.3 INCUMBENCY AND SIGNATURES. A certificate of the Secretary or an
Assistant Secretary of the Designated Subsidiary certifying the name and
signature of the officer or officers of the Designated Subsidiary who have
signed or will sign the letter referenced in Section 10.2.2, together with a
sample of the true signature of each such officer, and a certificate of
authorization setting forth each Person who is authorized to effect Loans and
other transactions hereunder, together with a sample of the true signature of
each such Authorized Person. Each Bank may conclusively rely on such
certificates until it shall have received notice to the contrary.
10.3 ALL LOANS. The obligation of each Bank to make any Loan hereunder is
subject to the further conditions precedent that: (a) No Event of Default or
Unmatured Event of Default has occurred and is continuing or will result from
the making of such Loan, and (b) the warranties of the Company contained in
Sections 8.1, 8.2, and 8.3, are true and correct as of the date of such
requested Loan, with the same effect as though made on the date of such Loan.
10.4 CONVERSIONS. Except for Section 10.3(a), the conditions set forth in
Sections 10.1, 10.2, and 10.3 shall not apply to the Conversion of Loans from
one type to another type or Continuation of Loans.
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SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT.
11.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
11.1.1 NONPAYMENT OF NOTES OR FEES. Default in the payment when due of
any principal of any Note or default in the payment when due of interest on any
Note or fees payable by the Company hereunder and continuance of such failure to
pay interest or fees for five Business Days after written notice thereof to the
Company from the Bank to which such amounts are owed.
11.1.2 NONPAYMENT OF OTHER INDEBTEDNESS FOR BORROWED MONEY. Default in
the payment when due at maturity (subject to any applicable grace period) or by
acceleration of any other indebtedness for borrowed money having a principal
amount in excess of 50,000,000 U.S. Dollars of, or guaranteed by, the Company
("OTHER INDEBTEDNESS"), or default in the performance or observance of any
obligation or condition with respect to any such Other Indebtedness if such
default results in the acceleration of the maturity of any such Other
Indebtedness; provided, that, if such default shall subsequently be remedied,
cured, or waived prior to either the termination of Commitments or the
declaration that all Loans are immediately due and payable, in each case
pursuant to Section 11.2 hereof, and as a result the payment of such Other
Indebtedness is no longer due, the Event of Default existing hereunder by reason
thereof shall likewise be deemed thereupon to be remedied, cured, or waived and
no longer in existence, all without any further action by the parties hereto.
11.1.3 BANKRUPTCY OR INSOLVENCY. The Company generally fails to pay,
or admits in writing its inability to pay, debts as they become due; or the
Company applies for, consents to, or acquiesces in the appointment of, a
trustee, receiver, or other custodian for the Company or for a substantial part
of the property thereof, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence, a
trustee, receiver, or other custodian is appointed for the Company or for a
substantial part of the property of the Company; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding is
commenced in respect of the Company and if such case or proceeding is not
commenced by the Company, it is consented to or acquiesced in by the Company or
remains for 90 consecutive days undismissed or unstayed; or the Company takes
any corporate action to authorize any of the foregoing.
11.1.4 NONCOMPLIANCE WITH OTHER PROVISIONS. Failure by the Company to
comply with or to perform in any material respect any other provision of this
Agreement (and not constituting an Event of Default under any of the preceding
provisions of this Section 11.1) and continuance of such failure for 30 days
after written notice thereof to the Company from the Majority Banks.
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11.1.5 WARRANTIES. Any warranty made by the Company in Sections 8 or
14.16 of this Agreement is breached or is incorrect when made in any material
respect and the Company shall fail to take corrective actions reasonably
satisfactory to the Majority Banks within 30 days after written notice thereof
to the Company from the Majority Banks, except only in the case of a breach of
the warranties contained in Section 8 or 14.16 made on the date of this
Agreement, in which case there shall be no opportunity to take corrective
actions.
11.1.6 JUDGMENTS. Any final and unappealable judgment or order from a
judicial or administrative body (which order or judgment is fully enforceable
against the Company or any of its Consolidated Subsidiaries in courts of the
United States of America or any state thereof) for the payment of money in
excess of 50,000,000 U.S. Dollars (after adjustments to reflect reductions for
credits and set-offs asserted in good faith by the Company) shall be rendered
against the Company, shall not have been discharged or vacated and shall have
been in effect, in its final and unappealable form, for a period of 30
consecutive days.
11.2 EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
Section 11.1.3 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and all Loans and Notes shall
automatically become immediately due and payable, all without notice of any
kind; and, in the case of any other Event of Default, the Majority Banks may
declare the Commitments (if they have not theretofore terminated) to be
terminated and the Outstanding Majority Banks may declare that all Loans and
Notes shall become immediately due and payable. The Majority Banks and the
Outstanding Majority Banks shall promptly advise the Company in writing of any
such declaration. Following the declaration that all Loans and Notes are
immediately due and payable, all payments made by the Company on account of the
Loans and Notes shall be made to the Administrator, which shall distribute such
payments on a pro rata basis (in relation to the amounts of outstanding Loans)
to Banks with outstanding Loans. Following such declaration, if any Bank
receives a payment that is not on a pro rata basis, such Bank will remit to the
Administrator any amount in excess of its pro rata portion. Upon receipt of any
such remittance, the Administrator will distribute such amount to the Banks with
outstanding Loans in order that all distributions will be pro rata. The effect
as an Event of Default of any event described in Section 11.1.1 or Section
11.1.3 may be waived only by the written concurrence of the holders of 100% of
the aggregate unpaid principal amount of the Notes and the Majority Banks, and
the effect as an Event of Default of any other event described in this Section
11 may be waived by the written concurrence of the Majority Banks and the
Outstanding Majority Banks.
SECTION 12 GUARANTY.
The Company hereby unconditionally, absolutely and irrevocably guarantees,
as primary obligor and not merely as surety, the repayment to each Relevant
Bank, when due pursuant to the terms and conditions of this Agreement, of the
amount of
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any Loan made pursuant to this Agreement to a Designated Subsidiary, together
with accrued interest on such Loan; provided, however, that before any amount
shall be deemed due and payable pursuant to this Section 12, the Relevant Bank
must first give notice to the Company of the nonpayment by the Designated
Subsidiary, and the Company shall have five Business Days from the receipt of
such notice to cure or cause to be cured any and all such nonpayments. The
Company's obligations hereunder constitute a guaranty of payment and not of
collection merely. The Company hereby waives notice of, and consents to, any
extensions of time of payment, renewals, compromises, settlements, releases or
other indulgences from time to time granted by the Relevant Bank in respect of
Loans made to Designated Subsidiaries. Except as otherwise provided in this
Section 12, the Company hereby waives presentment, protest, demand of payment,
notice of dishonor and all notices and demands whatsoever. The obligations of
the Company hereunder shall not be released, discharged or otherwise affected by
(i) any change in the corporate existence or constitution, structure or
ownership of any Designated Subsidiary or the Company, (ii) any insolvency,
bankruptcy, reorganization or similar proceeding affecting the Designated
Subsidiary or its assets or the Company or (iii) the existence of any claim,
set-off or other rights which the Company may have at any time against the
Relevant Bank or any other person. If at any time any payment of any obligation
guaranteed hereunder is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy or reorganization of a Designated Subsidiary or
otherwise, the Company's obligations under this Section 12 with respect to such
payment shall be reinstated at such time as though such payment had not been
made. The Company shall not exercise any of its subrogation rights with respect
to amounts paid to a Relevant Bank pursuant to this Section 12 until all amounts
guaranteed hereunder payable to such Relevant Bank have been paid in full.
Following such payment in full with regard to a Relevant Bank, the Company shall
be entitled to subrogation in the Relevant Bank's rights and, upon the
reasonable request of the Company, the Relevant Bank agrees to cooperate with
the Company in enforcement of the Company's subrogation rights, including the
transfer and delivery by the Relevant Bank to the Company of any and all
evidence of indebtedness relating to such Loan within the possession or control
of the Relevant Bank.
SECTION 13 CERTAIN DEFINITIONS.
When used herein the following terms shall have the following meaning:
"AFFILIATE" means, with respect to a particular Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person shall
mean the power to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"AGREEMENT" means this Agreement, as it may be amended, modified, or
supplemented and in effect from time to time.
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"APPLICABLE COMMITMENT FEE" means the percentage in effect from time to
time as set forth in the following table opposite the highest of the
then-current rating assigned to the Company's senior unsecured long-term debt by
Xxxxx'x Investors Service, Inc. ("MOODY'S") or Standard & Poor's Ratings Group
("S&P"):
Rating Applicable
(Moody's/S&P) Commitment Fee
--------------------- --------------
higher than A1/A+ 0.040%
A1/A+ 0.050%
A2/A 0.060%
A3/A- 0.070%
Baa1/BBB+ 0.080%
Baa2/BBB 0.105%
Baa3/BBB- 0.130%
lower than Baa3/BBB- 0.155%
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"APPLICABLE MARGIN" means, at any time, the percentage set forth in the
following table opposite the highest of the then-current rating assigned to the
Company's senior unsecured long-term debt by Moody's or S&P:
Applicable Applicable
Margin for Margin for
Rating Domestic CD Eurocurrency
(Moody's/S&P) Loans Loans
----------------------------------------------------------------------
higher than A1/A+ 0.275% 0.175%
A1/A+ 0.300% 0.200%
A2/A 0.325% 0.225%
A3/A- 0.350% 0.250%
Baa1/BBB+ 0.400% 0.300%
Baa2/BBB 0.475% 0.375%
Baa3/BBB- 0.550% 0.450%
lower than Baa3/BBB- 0.600% 0.500%
"ASSESSMENT RATE" means, for any Domestic CD Loan (and for the purpose of
computing the Domestic CD Rate (Adjusted)), the annual assessment rate (rounded
upwards, if necessary, to the nearest 1/100 of 1%) applicable to the Relevant
Bank on its insured deposits under the Federal Deposit Insurance Act, determined
by annualizing the most recent assessment levied on the Relevant Bank by the
Federal Deposit Insurance Corporation (the "FDIC") with respect to such
deposits, after giving effect to the most recent rebate granted to the Relevant
Bank by the FDIC with respect to deposit insurance as well as the loss to the
Relevant Bank (determined in the good faith judgment of the Relevant Bank) of
the use of such rebate prior to the date credit is taken by the Relevant Bank
with respect to such rebate.
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
Person is liable at the time and at any date as of which the amount thereof is
to be determined, the lesser of (a) the fair value of the property subject to
such lease (as determined by the Directors of the Company) or (b) the total net
amount of rent required to be paid by such Person under such lease during the
remaining term thereof, discounted from the respective due dates thereof to such
date at the actual interest factor included in such rent. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
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"AUTHORIZED PERSON" means, as to the Company, any person designated as such
in a certificate signed by the Chief Financial Officer, Treasurer, or Assistant
Treasurer of the Company, and, as to any Designated Subsidiary, means any person
designated as such in a certificate signed by one or more officers of the
Designated Subsidiary, as authorized by resolution of the Designated Subsidiary
or otherwise by law.
"BANKS" or "BANK" -- see Preamble.
"BASE RATE" means the higher of (i) the rate of interest per annum publicly
announced and in effect from time to time by the Relevant Bank at its Domestic
Office identified on the signature pages hereto as its prime, base or reference
rate for U.S. Dollar Loans or (ii) the Federal Funds Rate plus the Applicable
Margin for Eurocurrency Loans. The Base Rate shall change simultaneously with
each change in such announced prime, base or reference rate and Federal Funds
Rate, as applicable. The Base Rate may not be the lowest rate charged by the
Relevant Bank for commercial or other extensions of credit.
"BASE RATE LOAN" means any Loan of U.S. Dollars that bears interest at or
by reference to the Relevant Bank's Base Rate.
"BUSINESS DAY" means (i) in the case of a Business Day that relates to a
Eurocurrency Loan, any day of the year on which banks are open for business in
both New York and, with regard to any such Bank only, the city in which the
applicable Eurocurrency Office of such Bank is located and on which dealings are
carried on in the interbank eurocurrency market; (ii) in the case of a Business
Day that relates to a Base Rate Loan, a Domestic CD Loan, or a Negotiated Loan,
any day of the year on which banks are open for business in both New York and,
with regard to any such Bank only, the city in which the applicable Domestic
Office of such Bank is located; and (iii) in the case of a Business Day that
relates to a Local Currency Loan, any day of the year on which the local office
of the Relevant Bank in that locality is open for business.
"COMMITMENT(S)" means the commitments of the Banks to make Loans hereunder;
and Commitment as to any Bank shall mean the commitment of such Bank to make
Loans hereunder in an aggregate amount not to exceed the U.S. Dollar amount set
forth opposite its signature hereto or any subsequent amendment hereto.
"COMPANY" -- see Preamble.
"COMPLIANCE CERTIFICATE" -- see Section 9.1.3 and Exhibit B.
"CONSOLIDATED FUNDED DEBT" means the Funded Debt of the Company and its
Consolidated Subsidiaries consolidated in accordance with GAAP.
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"CONSOLIDATED NET TANGIBLE ASSETS" means the total of all assets of the
Company and its Consolidated Subsidiaries appearing on a consolidated balance
sheet prepared in accordance with GAAP, including the equity in and the net
amount of advances to other Subsidiaries, after deducting therefrom (without
duplication of deductions) as shown on such balance sheet, the sum of:
(i) intangible assets, including goodwill, cost of acquired businesses
in excess of recorded net assets at acquisition dates, patents,
licenses, trademarks, trade names, copyrights, unamortized debt
discount and expense less unamortized debt premium, and corporate
organization expense (but excluding deferred charges and prepaid
expense);
(ii) any write-up of the book value of any assets (other than equity in
Subsidiaries which are not Consolidated Subsidiaries and other than
as a result of currency revaluations) resulting from the revaluation
thereof subsequent to March 31, 1992;
(iii) all liabilities of the Company and its Consolidated Subsidiaries
other than: Funded Debt; capital stock; surplus; surplus reserves;
reserves for deferred Federal income taxes arising from accelerated
depreciation, investment and other tax credits, and similar
provisions; and contingency reserves not allocated for any
particular purpose;
(iv) reserves for depreciation and amortization and other reserves (other
than the reserves referred to in the preceding clause(iii)); and
(v) any minority interest in the shares of stock and surplus of any
Consolidated Subsidiary.
"CONSOLIDATED NET WORTH" means at any date the sum of the consolidated
shareholders' investment and minority interests of the Company and its
Consolidated Subsidiaries determined as of such date. Consolidated shareholders'
investment and minority interests of the Company shall be as included in the
annual and quarterly financial statements of the Company, as applicable.
"CONSOLIDATED SUBSIDIARY" means each Subsidiary other than (a) any
Subsidiary the accounts of which (i) are not required by GAAP to be consolidated
with those of the Company for financial reporting purposes and (ii) were not
consolidated with those of the Company in the Company's then most recent Annual
Report to Shareholders and are not intended by the Company to be consolidated
with those of the Company in its next Annual Report to Shareholders, or (b) any
Subsidiary the primary business of which consists of financing the sale or lease
of merchandise, equipment or services by the Company or any Subsidiary or
owning, leasing, dealing
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in or developing real property, or providing services directly related thereto,
or which is otherwise primarily engaged in the business of a finance or real
estate company.
"CONTINUE," "CONTINUATION" and "CONTINUED" shall refer to a continuation of
Loans pursuant to Section 1.5.
"CONVERT," "CONVERSION" and "CONVERTED" shall refer to a conversion of
Loans pursuant to Sections 1.5, 3.3, 7.3, or 7.4.
"DEBT" -- see Section 9.3.
"DESIGNATED SUBSIDIARY" means any Subsidiary of the Company which (i) the
Company from time to time designates in writing signed by the Chief Financial
Officer, Treasurer, or Assistant Treasurer of the Company as a Designated
Subsidiary entitled to receive Eurocurrency and Local Currency Loans hereunder
and (ii) the Relevant Bank has not objected in writing to such designation of a
Designated Subsidiary within thirty (30) days of the Relevant Bank's receipt of
the Company's designation. Such designation shall contain the address of the
Subsidiary which shall be used to give notice to the Subsidiary pursuant to
Section 14.3.
"DOMESTIC CD LOAN" shall mean any Loan of U. S. Dollars that bears
interest at a rate determined by reference to the Relevant Bank's Domestic CD
Rate (Adjusted).
"DOMESTIC CD RATE" means, with respect to any Interest Period for any
Domestic CD Loan, the rate of interest determined by the Relevant Bank to be the
average (rounded upward, if necessary, to the nearest 1/100 of 1%) of the rates
quoted to the Relevant Bank on the first day of such Interest Period by two
certificate of deposit dealers in New York of recognized standing selected by
the Relevant Bank for the purchase from the Relevant Bank or major commercial
banks at face value of certificates of deposit issued by the Relevant Bank in an
amount equal or comparable to the amount of the Domestic CD Loan and having a
maturity equal to such Interest Period; provided, that, if such quotations from
such dealers are not available to the Relevant Bank, it shall determine a
reasonably equivalent rate on the basis of another source or sources selected by
it.
"DOMESTIC CD RATE (ADJUSTED)" means, with respect to any Interest Period
for any Domestic CD Loan, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined pursuant to the following formula:
Domestic CD
Domestic CD = Rate + Assessment
Rate (Adjusted) ------------ Rate
(1 - Reserve
Requirement)
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"DOMESTIC OFFICE" means, with respect to any Bank, the office of such Bank
or Affiliate of such Bank, designated as such under such Bank's signature
hereto, or such other office of such Bank or Affiliate of such Bank, as such
Bank may hereafter from time to time designate as its Domestic Office.
"DOMESTIC SUBSIDIARY" means each Consolidated Subsidiary other than: (a)
any Consolidated Subsidiary which the Directors of the Company reasonably
determine not to be material to the business or financial condition of the
Company; (b) any Consolidated Subsidiary the major portion of the assets of
which are located, or the major portion of the business of which is carried on,
outside the United States of America, its territories and possessions; (c) any
Consolidated Subsidiary which, during the 12 most recent calendar months (or
such shorter period as shall have elapsed since its organization) derived the
major portion of its gross revenues from sources outside the United States of
America; (d) any Consolidated Subsidiary the major portion of the assets of
which consists of securities or obligations, or both, of one or more
corporations (whether or not Consolidated Subsidiaries) of the types described
in the preceding clauses (b) and (c); and (e) any Consolidated Subsidiary
organized after March 31, 1992 which the Company intends shall be operated in
such manner as to come within one or more of the preceding clauses (b), (c) and
(d).
"ELECTRONIC PAYMENT INSTRUCTIONS" means the Bank Routing and account number
information identifying the account of each Bank to receive the payment of
Commitment Fees. Such Electronic Payment Instructions for each Bank are set
forth below the signature block of such Bank to this Agreement and may be
changed at any time by written notice by such Bank to the Company.
"EUROCURRENCY" means any freely transferable and convertible currency on
deposit outside the country of issuance.
"EUROCURRENCY LOAN" means any Loan of a Eurocurrency that bears interest at
a rate determined by reference to the Relevant Bank's Eurocurrency Rate (Reserve
Adjusted).
"EUROCURRENCY OFFICE" means, with respect to any Bank, the office of such
Bank or Affiliate of such Bank, designated as such under such Bank's signature
hereto, or such other office of such Bank or Affiliate of such Bank, as such
Bank may hereafter from time to time designate as its Eurocurrency Office. A
Eurocurrency Office may be, at the option of such Bank, either a domestic or
foreign office of such Bank or a domestic or foreign office of an affiliate of
such Bank.
"EUROCURRENCY OR LOCAL CURRENCY EQUIVALENT AMOUNT" means, in the case of a
Eurocurrency or Local Currency, on any Business Day, the amount of such currency
which would be freely converted into a specified amount of U.S. Dollars,
computed at the spot buying rate for dollars of the Relevant Bank at the close
of business on such day.
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"EUROCURRENCY RATE" means, with respect to any Eurocurrency Loan for any
Interest Period, the rate per annum equal to the rate per annum at which
deposits of the currency of the Loan in immediately available funds are offered
by the Eurocurrency Office of the Relevant Bank two Business Days prior to the
beginning of such Interest Period to major banks in the interbank eurocurrency
market of such Eurocurrency Office for delivery on the first day of such
Interest Period and for the number of days comprised therein and in an amount
equal or comparable to the amount of the Eurocurrency Loan of the Relevant Bank
for such Interest Period.
"EUROCURRENCY RATE (RESERVE ADJUSTED)" means, with respect to any
Eurocurrency Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Eurocurrency Rate
Eurocurrency Rate = -----------------------
(Reserve Adjusted) 1-Eurocurrency Reserve
Percentage
"EUROCURRENCY RESERVE PERCENTAGE" means, with respect to each Interest
Period, that percentage (expressed as a decimal) prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining
reserve requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of the Board of Governors
that prescribes reserve requirements applicable to "Eurocurrency Liabilities" as
presently defined in Regulation D.
"EVENT OF DEFAULT" means any of the events described in Section 11.1.
"EXEMPTED INDEBTEDNESS" means, as of any particular time, the sum of (i)
the aggregate principal amount of all then outstanding indebtedness for borrowed
money of the Company and Domestic Subsidiaries incurred after July 1, 1992 and
secured by any mortgage, security interest, pledge or lien other than those
permitted by paragraph (a) of Section 9.3 and (ii) all Attributable Debt
pursuant to Sale and Leaseback Transactions (as defined in Section 9.4) incurred
by the Company and Domestic Subsidiaries after July 1, 1992 at such time
outstanding other than that which is not prohibited by or is permitted pursuant
to paragraph (a) of Section 9.4.
"FEDERAL FUNDS RATE" means, for any Interest Period selected by the
Company, the average of rates for Federal funds for the Interest Period quoted
to the Relevant Bank by two leading brokers of Federal funds transactions in New
York City.
"FIXED RATE LOAN(S)" -- see Section 1.3.
"FUNDED DEBT" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date such indebtedness was incurred or having a
maturity of 12 months or less but by its terms being renewable or extendable
beyond 12 months from the date such indebtedness was incurred at the option of
the borrower.
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"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"INTEREST PERIOD" means, with respect to any Fixed Rate Loan, the period
commencing on the date such Loan was made, or on the date such Loan was
Converted from a Loan of a different type, or on the date of expiration of the
immediately preceding Interest Period for such Loan, and (i) ending 30, 60, 90,
120, 150, 180 days, or, if available, more than 180 days up to and including 360
days, thereafter in the case of a Domestic CD Loan, or (ii) ending one, two,
three, or six months, or, if available, more than six months up to and including
twelve months, thereafter in the case of a Eurocurrency Loan, all as the Company
or any Designated Subsidiary may specify pursuant to Section 1.4, 1.5, or 3.3;
the Interest Period for any Negotiated Loan or any Local Currency Loan shall be
as agreed by the Company or any Designated Subsidiary and the Relevant Bank
pursuant to Section 1.6 or 1.7. Each Interest Period for a Fixed Rate Loan that
would otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (unless such next succeeding Business Day is the first
Business Day of a calendar month, in which case with respect to a Eurocurrency
Loan such Interest Period shall end on the next preceding Business Day).
"JUDGMENT CURRENCY" -- see Section 7.6.
"JUDGMENT CURRENCY CONVERSION DATE" -- see Section 7.6.
"LIEN" or "MORTGAGE" -- see Section 9.3.
"LOCAL CURRENCY" means, with respect to any Local Currency Loan, any legal
currency of the nation where the Local Currency Loan is being funded.
"LOCAL CURRENCY LOAN(S)" -- see Section 1.7.
"LOANS" or "LOAN" -- see Section 1.1.
"MAJORITY BANKS" means Banks having an aggregate Percentage of 66-2/3% or
more.
"NEGOTIATED LOAN(S)" -- see Section 1.6.
"NOTE(S)" -- see Section 2.2 and Exhibit A.
"OBLIGATION CURRENCY" -- see Section 7.6.
"OUTSTANDING MAJORITY BANKS" means Banks having 66-2/3% or more of the
aggregate principal amount of Loans outstanding.
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"PERCENTAGE" means as to any Bank the percentage of such Bank's share of
the total Commitments of all Banks.
"PERSON" shall mean an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or any agency or political subdivision thereof), or other entity of
any kind.
"PRINCIPAL PROPERTY" means any single manufacturing plant, engineering
facility or research facility owned or leased by the Company or a Domestic
Subsidiary other than any such plant or facility or portion thereof which the
Board of Directors reasonably determines not to be of material importance to the
Company and its Subsidiaries taken as a whole.
"PROPRIETARY INFORMATION" -- see Section 14.5.
"RELEVANT BANK" means, with respect to any Loan, the Bank that made the
Loan, and, prior to the making of such Loan or requested Loan, any Bank that has
been requested to make such Loan.
"RESERVE REQUIREMENT" means, with respect to each Interest Period, a
percentage (expressed as a decimal) equal to the daily average during such
Interest Period of the aggregate reserve requirement (including all basic,
supplemental, marginal, and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements
during such Interest Period) specified under Regulation D of the Board of
Governors of the Federal Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable to nonpersonal time
deposits as presently defined in Regulation D, as then in effect, as applicable
to the class of banks of which the Relevant Bank is a member, on deposits of the
type used as a reference in determining the Domestic CD Rate and having a
maturity approximately equal to such Interest Period.
"REVOLVING PERIOD" -- see Section 1.1.
"REVOLVING PERIOD TERMINATION DATE" means the earlier to occur of (a)
December 8, 1998, subject to extension for one or more successive one-year
periods as to any Bank or Banks pursuant to Section 1.2, or (b) such other date
on which the Commitments shall terminate pursuant to Section 11.2.
"SALE AND LEASEBACK TRANSACTION" -- see Section 9.4.
"SUBSIDIARY" means a corporation of which the Company and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election of directors.
"TERM-OUT MATURITY DATE" means December 8, 1999, unless the Revolving
Period Termination Date is extended as provided in Section 1.2, in which case
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the Term-Out Maturity Date shall be the first anniversary of the Revolving
Period Termination Date as so extended.
"TYPE OF LOAN OR BORROWING" -- see Section 1.3. The various types of Loans
or borrowings available under this Agreement are as follows: Base Rate Loans or
borrowings and Fixed Rate Loans or borrowings. Fixed Rate Loans or borrowings
consist of Domestic CD Loans or borrowings, Eurocurrency Loans or borrowings,
Negotiated Loans or borrowings, and Local Currency Loans or borrowings.
"U.S. DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"UNMATURED EVENT OF DEFAULT" means any event that if it continues uncured
will, with lapse of time or notice or lapse of time and notice, constitute an
Event of Default.
"UNUSED AMOUNT" means the amount of the Commitment of the Relevant Bank
less any outstanding Loans made by such Bank. Loans in an Obligation Currency
other than U.S. Dollars will be translated into U.S. Dollars for purposes of
this calculation at the spot rate for dollars published in THE WALL STREET
JOURNAL on each day in which such Loan is outstanding (provided, that if such
day is not a Business Day, the applicable spot rate for such day should be the
spot rate on the Business Day immediately prior to such day).
"WHOLLY OWNED DOMESTIC SUBSIDIARY" means each Domestic Subsidiary all the
outstanding shares of which, other than directors' qualifying shares, shall at
the time be owned by the Company, or by the Company and one or more Wholly Owned
Domestic Subsidiaries, or by one or more Wholly Owned Domestic Subsidiaries.
SECTION 14 GENERAL.
14.1 WAIVER; AMENDMENTS. No delay on the part of any Bank or the holder of
any Note in the exercise of any right, power, or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any of them of any
right, power, or remedy preclude other or further exercise thereof, or the
exercise of any other right, power, or remedy. No amendment, modification, or
waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing and
signed and delivered by Banks having an aggregate Percentage of not less than
the aggregate Percentage expressly designated herein with respect thereto (or in
the case of the Outstanding Majority Banks, the aggregate principal amount
outstanding) or, in the absence of such designation as to any provision of this
Agreement or the Notes, by the Majority Banks, and then any such amendment,
modification, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given. No amendment,
modification, waiver, or consent (i) shall extend or increase the amount of the
Commitments, the maturity of the Notes or reduce the fees hereunder or the rate
of interest payable with respect to the Notes or reduce the aggregate Percentage
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required to effect an amendment, modification, waiver, or consent or eliminate
the guaranty set forth in Section 12 hereof without the written consent of all
of the Banks or (ii) shall extend the maturity or reduce the principal amount
of, or rate of interest on, any Note without the written consent of the holder
of such Note. Notwithstanding the foregoing, the Company may add one or more
financial institutions as Bank parties to this Agreement, from time to time and
without the consent of the then-current Bank parties to this Agreement;
provided, that in no event will the aggregate amount of the Commitments of the
new financial institutions exceed 125 million U.S. Dollars in excess of the
Commitments as of the date hereof. Each such addition of a Bank shall be
effective upon such Bank's written agreement to become a Bank party hereto and
to be bound by the terms of this Agreement applicable to "Banks." The Company
shall give the then-current Bank parties to this Agreement prompt notice of any
change to the Bank's respective Percentages and Commitments resulting from the
addition of any Bank as a party to, or the reduction of any Bank's Commitment
under, this Agreement.
14.2 CONFIRMATIONS. The Company and each holder of a Loan agree from time
to time, upon written request received by it from the other, to confirm to the
other in writing the aggregate unpaid principal amount of Loans then outstanding
to such holder.
14.3 NOTICES. Except as otherwise provided in Sections 1.3, 1.4, 1.5, 3.3,
and 6.2, all notices hereunder shall be in writing. Notices given by mail shall
be deemed to have been given three days after the date sent if sent by
registered or certified mail, postage prepaid, and:
(i) if to the Company, addressed to the Company at its address
shown below its signature hereto;
(ii) if to any Designated Subsidiary, addressed to it at the address
given by the Company pursuant to its designation of such
Subsidiary as a Designated Subsidiary entitled to receive Loans
hereunder; or
(iii) if to any Bank, addressed to such Bank at the address shown
below its signature as its Domestic Office address; or
in the case of each party, such other address as such party may, by written
notice to the other parties to this Agreement, have designated as its address
for notices. Notices given by facsimile, telegram, or telex shall be deemed to
have been given when sent, if properly addressed to the party to whom sent, at
its address, as aforesaid.
Each Bank shall be entitled to rely upon all telephonic notices given by an
Authorized Person pursuant to Sections 1.3, 1.4, 1.5, 3.3, or 6.2, and the
Company shall hold each Bank harmless from any loss, cost, or expense ensuing
from any such reliance, except for such loss, cost or expenses as a result of
the Bank's gross
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negligence or willful misconduct. All notices, waivers, or consents given to, or
any requests made upon, the Company by any Bank or holder of any Note shall be
promptly notified to all other parties to this Agreement. Whenever a notice,
declaration, or other action is required to be taken, given, or made by the
Majority Banks or the Outstanding Majority Banks, such notice, declaration, or
action shall be in writing and shall be signed by, as the case may be, Banks
having an aggregate Percentage of 66-2/3% or more or Banks having 66-2/3% or
more of the aggregate principal amount of Loans outstanding.
14.4 COMPUTATIONS. Where the character or amount of any asset or liability
or item of income or expense is required to be determined, or any consolidation
or other accounting computation is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in accordance with the
Company's then current method of accounting, which method must be in accordance
with GAAP; provided, however, if any changes in accounting principles from those
used in the preparation of the financial statements referred to in Section 8.4
hereafter occasioned by the promulgation of rules, regulations, pronouncements,
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) result in a change in the method of calculation
of the financial covenants, standards, or terms found in Section 9.2 hereof, the
parties hereto agree to enter into negotiations to amend such provisions so as
equitably to reflect such changes with the desired result that the criteria for
evaluating the Company's financial condition shall be the same after such
changes as if such changes had not been made.
14.5 CONFIDENTIALITY. Unless the Company otherwise agrees in writing, each
Bank hereby agrees to keep all Proprietary Information (as defined below)
confidential and not to disclose or reveal any Proprietary Information to any
Person other than the Bank's directors, officers, employees, Affiliates, and
agents, and then only on a confidential basis; provided, however, that a Bank
may disclose Proprietary Information (a) as required by law, rule, regulation,
or judicial process, (b) to its attorneys and accountants, (c) as requested or
required by any state, federal, or foreign authority or examiner regulating
banks or banking, or (d) to actual or potential assignees or participants as
permitted by Section 14.6.3. For purposes of this Agreement, the term
"PROPRIETARY INFORMATION" shall include all information about the Company, any
Subsidiary, or any of their respective Affiliates which has been furnished by
the Company, any Subsidiary, or any of their respective Affiliates, whether
furnished before or after the date hereof, and regardless of the manner
furnished; provided, however, that Proprietary Information shall not include
information which (x) is or becomes generally available to the public other than
as a result of a disclosure by a Bank not permitted by this Agreement, (y) was
available to a Bank on a nonconfidential basis prior to its disclosure to such
Bank by the Company, any Subsidiary, or any of their respective Affiliates, or
(z) becomes available to a Bank on a nonconfidential basis from a Person other
than the Company, any Subsidiary, or any of their respective Affiliates who, to
the best knowledge of such Bank, is not otherwise
-34-
40
bound by a confidentiality agreement with the Company, any Subsidiary, or any of
their respective Affiliates, or, to the best knowledge of such Bank, is not
otherwise prohibited from transmitting the information to such Bank.
14.6 ASSIGNMENTS AND PARTICIPATIONS.
14.6.1 ASSIGNMENTS. Unless the Company otherwise consents in writing,
which consent shall not be unreasonably withheld, no holder of any Note
(including any Bank) shall assign or transfer such Note or any interest therein
to any other Person, except as otherwise permitted under Section 14.6. Except as
otherwise expressly agreed in writing by the Company, no Bank shall, by reason
of the assignment or transfer of any Note or otherwise, be relieved of any of
its obligations hereunder. Each transferee of any Note shall take such Note
subject to the provisions of this Agreement and to any request made, waiver or
consent given, or other action taken hereunder, prior to such transfer, by each
previous holder of such Note; and the Company shall be entitled to conclusively
assume that the transferee shall thereafter be vested with all rights and powers
under this Agreement of the Bank named as the payee of the Note which is the
subject of such transfer. Nothing herein shall prohibit any Bank from pledging
or assigning any Note to any Federal Reserve Bank pursuant to applicable law.
14.6.2 PARTICIPATIONS. Any Bank may grant participations in or to all
or any part of any Loan or Loans then owing to such Bank and the Notes held by
such Bank without the consent of the Company. Except as otherwise expressly
agreed in writing by the Company, no grant of a participation shall relieve any
Bank of its obligations hereunder, the Company shall be entitled to deal solely
with the Banks (and their respective assignees) for all purposes of this
Agreement and the Notes, and no holder of a participation in all or any part of
the Loans or the Notes shall have any rights under this Agreement, except that
the holder of a participation shall be entitled to the benefits of Section 7
hereunder (but the dollar amount of such Section 7 benefits shall not exceed
those benefits that the assigning Bank would have otherwise received).
14.6.3 DISCLOSURE OF INFORMATION. The Company hereby consents to the
disclosure of any information obtained in connection herewith by any Bank to any
Person which is an assignee or potential assignee or a participant or potential
participant pursuant to Section 14.6.1 or 14.6.2, it being understood that such
Bank shall advise any such actual or potential assignee or participant of its
obligation to keep confidential any nonpublic information disclosed to it
pursuant to this Section 14.6.3 and, prior to the disclosure of such
information, shall cause each such actual or potential assignee or participant
to execute a confidentiality agreement containing the confidentiality provisions
set forth in Section 14.5.
14.7 SECURITIES LAWS. Each Bank represents that it is the present intention
of such Bank to acquire each Note drawn to its order for its own account and not
with a view to the distribution or sale thereof, subject, nevertheless, to the
necessity that such Bank remain in control at all times of the disposition of
the
-35-
41
property held by it for its own account, it being understood that the foregoing
representation shall not affect the character of the Loans as commercial lending
transactions.
14.8 COSTS AND EXPENSES. The Company agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Banks (including the reasonable fees and
out-of-pocket expenses of counsel for the Banks and reasonable allocated costs
of in-house counsel for the Banks) in connection with the enforcement of this
Agreement, the Notes, and any other instruments or documents executed in
connection herewith.
14.9 GOVERNING LAW. This Agreement and each Note shall be a contract made
under and governed by the internal laws of the State of Ohio. Wherever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Banks and any other
holders of the Notes expressed herein or in the Notes shall be in addition to
and not in limitation of those provided by applicable law.
14.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement. When counterparts executed
by all the parties shall have been lodged with the Company (or, in the case of
any Bank as to which an executed counterpart shall not have been so lodged, the
Company shall have received telegraphic, telex, or other written confirmation
from such Bank of execution of a counterpart hereof by such Bank), this
Agreement shall become effective as of the date hereof.
14.11 CAPTIONS. Section captions used in this Agreement are for convenience
only, and shall not affect the construction of this Agreement.
14.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company, each Bank, and their respective successors and assigns, and shall inure
to the sole benefit of the Company, each Bank, and their respective successors
and assigns.
14.13 ENTIRE AGREEMENT. This Agreement supersedes any prior agreement or
understanding of the parties hereto, and contains the entire agreement of the
parties hereto, with respect to the matters covered hereby.
14.14 APPOINTMENT OF ADMINISTRATOR. TRW hereby appoints National City Bank
to serve as administrator (the "ADMINISTRATOR") to coordinate any votes that may
be taken under this Agreement and to distribute payments, if any, required to be
-36-
42
made to the Banks on a pro rata basis as provided in Section 11.2. In the event
that National City Bank is unable or unwilling to act as Administrator, TRW
shall appoint a successor, subject to the approval of the Majority Banks, which
shall not be unreasonably withheld. Except as otherwise specifically provided
herein, borrowing, repayment and fee procedures set forth in this Agreement
shall not be affected by the appointment of the Administrator.
14.15 NON-U.S. BANK TAX INFORMATION. Upon the request of the Company, any
Bank that is not organized under the laws of the United States of America or any
state thereof will (i) deliver to the Company accurate and complete signed
copies of Forms 1001 and 4224 (or such additional or successor forms) and any
amendments or modifications thereto and (ii) inform the Company if the Company
can no longer rely upon such forms.
14.16 REGULATION U. The Company hereby represents and warrants that neither
the Company nor any of its Consolidated Subsidiaries is principally engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) and covenants that the Company's use of
proceeds of any borrowings under this Agreement will not cause a violation of
Regulation U. Each of the Banks hereby represents and warrants to the Company
that it is not relying and will not rely on any margin stock (as described
above) in determining whether to extend or maintain credit under this Agreement.
-37-
43
SIGNATURE PAGES TO REVOLVING CREDIT AGREEMENT, DATED AS OF DECEMBER 10, 1997
----------------------------------------------------------------------------
Delivered at Cleveland, Ohio, as of the day and year first above written.
TRW INC.
By:_____________________________________
Name: Xxxxxx X. Xxxxxxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Telephone: 216/000-0000
Facsimile: 216/291-7831
-38-
44
BANKS:
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Bank of America National Trust
and Savings Association
By:___________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
DOMESTIC OFFICE
Bank of America NT & SA
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
EUROCURRENCY OFFICE
Bank of America NT & SA
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Bank of America
ABA Routing No.: 000000000
Account No.: 12331-83980
Account Name: Incoming Money Transfer
Reference No.: TRW Commitment Fee
-39-
45
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Barclays Bank PLC
By:___________________________________________
Name: Xxxx X. Xxxxxxxx
Title: Associate Director
DOMESTIC OFFICE
Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Barclays Nassau, Bahamas Branch
c/o Barclays Bank PLC
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Barclays Bank PLC-New York
ABA Routing No.: 000-000-000
Account No.: 000-000-000
Account Name: TRW
Reference No.: TRW Commitment Fee;
C. Tenn Sing Que
46
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% The Chase Manhattan Bank
By:___________________________________________
Name: Xxxx X. Xxxxxx
Title: Managing Director
DOMESTIC OFFICE
The Chase Manhattan Bank
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
The Chase Manhattan Bank
One Chase Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan Bank
ABA Routing No.: 021-000021
Account No.:
Account Name: Commercial Loan Opns.
Reference No.: TRW Commitment Fee
-41-
47
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Citibank, N.A.
By:___________________________________________
Name: Xxxx Xxxxxxxxx Packard
Title: Vice President
DOMESTIC OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
000 X. Xxxxxx Xx.
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
EUROCURRENCY OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
000 X. Xxxxxx Xx.
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Citibank, N.A., New York
ABA Routing No.: 000000000
Account No.: 00000000
Account Name: Chicago NEO Loan Acct.
Reference No.: TRW Commitment Fee
-42-
48
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Xxxxxx Guaranty Trust Company
of New York
By:___________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
DOMESTIC OFFICE
Xxxxxx Guaranty Trust Company
of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
Xxxxxx Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o X.X. Xxxxxx Services Inc.
Euro-Loan Servicing Xxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Xxxxxx Guaranty Trust
ABA Routing No.: 000000000
Account No.: 000-00-000
Account Name: _____________
Reference No.: TRW Com. Fee
Corp. Proc. Module 30
-43-
49
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% National City Bank
By:___________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
DOMESTIC OFFICE
National City Bank
Xxxxxxxx Xxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
National City Bank
Xxxxxxxx Xxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: National City Bank
ABA Routing No.: 000000000
Account No.: 0000000
Account Name: _____________
Reference No.: TRW Commitment Fee
-44-
50
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% The Sumitomo Bank, Limited
By:___________________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DOMESTIC OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 000000000
Account No.: 15-01208
Account Name: Sumitomo Bank Ltd,
Chicago Branch.
Reference No.: TRW Commitment Fee
-45-
51
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Banque Nationale de Paris
By:___________________________________________
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and
General Manager
DOMESTIC OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
000 Xxxxx XxXxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
000 Xxxxx XxXxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Banque Nationale de Paris,
New York Branch
ABA Routing No.: 000000000
Account No.: 14119400189
Account Name: BNP, Chicago Branch
Reference No.: TRW Commitment Fee
-46-
52
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Dresdner Bank AG
By:___________________________________________
Name: D. Slusavczyk
Title: Vice President
By:___________________________________________
Name: A. R. Xxxxxx
Title: Vice President
DOMESTIC OFFICE
Dresdner Bank AG New York Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Dresdner Bank AG Grand Cayman Branch
c/o Dresdner Bank AG New York Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan (NY,NY)
ABA Routing No.: 000-000-000
Account No.: 920-1-059-079
Account Name: Dresdner Bank AG,
New York Branch
Reference No.: TRW Commitment Fee
-47-
53
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% NBD Bank
By:___________________________________________
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
DOMESTIC OFFICE
NBD Bank
Attention: Mid-Corporate Banking
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
NBD Bank, N.A.
Attention: Mid-Corporate Banking
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: NBD Bank
ABA Routing No.: 000000000
Account No.: 0000000
Account Name: Commercial Loans
Reference No.: TRW Commitment Fee
-48-
54
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Royal Bank of Canada
By:___________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Senior Manager
DOMESTIC XXXXXX
Xxxxx Xxxx xx Xxxxxx
Xxxxx Xxxxxx (Xxxxx Xxxxxxx No. 1) Branch
c/o New York Branch
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY XXXXXX
Xxxxx Xxxx xx Xxxxxx
Xxxxx Xxxxxx (Xxxxx Xxxxxxx No. 1) Branch
c/o New York Branch
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan, NY
ABA Routing No.: 000000000
Account No.: 9201033363
Account Name: Royal Bank
Reference No.: TRW Commitment Fee
-49-
55
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% KeyBank National Association
By:___________________________________________
Name: Xxxxxxxx Xxxx
Title: Vice President
DOMESTIC OFFICE
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: KeyBank National Association
ABA Routing No.: 000000000
Account No.: 00100-39140
Account Name: Commercial Loan Opns
Reference No.: TRW Commitment Fee
-50-
56
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% The Sakura Bank, Limited
By:___________________________________________
Name: Xxxxxx Xxxxxxx
Title: Joint General Manager
DOMESTIC OFFICE
The Sakura Bank, Limited
Chicago Branch
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
The Sakura Bank, Limited
Chicago Branch
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 000000000
Account No.: 0000000
Account Name: Sakura Bank, Chicago
Reference No.: TRW Commitment Fee
-51-
57
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% The Tokai Bank, Limited
By:___________________________________________
Name: Xxxxxxx Xxxxxx
Title: General Manager
DOMESTIC OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
The Tokai Bank, Limited
Chicago Branch
Attention: Corporate Finance
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: 000000000
Account No.: 15-08997
Account Name: Tokai Bank, Chicago Branch
Reference No.: TRW Commitment Fee
Loan Administration
-52-
58
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Union Bank of Switzerland
By:___________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
By:___________________________________________
Name: Xxxxxx Xxxxx
Title: Vice President
DOMESTIC OFFICE
Union Bank of Switzerland
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Union Bank of Switzerland
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Union Bank of Switzerland
ABA Routing No.: 000000000
Account No.: 519243USICC1
Account Name: Credit Corporate Clearing
Reference No.: TRW Commitment Fee
-53-
59
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Bank of China, New York Branch
By:___________________________________________
Name: Zhu, ZhiCheng
Title: General Manager, USA
DOMESTIC OFFICE
Bank of China
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (212) 935-3101 ext. 475
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Bank of China
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (212) 935-3101 ext. 475
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Bank of China,
New York Branch
ABA Routing No.: 000000000
Account No.: 160081555553-001-001
Reference No.: TRW Commitment Fee
-54-
60
Amount of Percentage of
Commitment Commitments
----------- -------------
$__,000,000 __% Xxxxx Fargo Bank, N.A.
By:___________________________________________
Name: Xxxxx X. Xxx
Title: Vice President
By:___________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
DOMESTIC OFFICE
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxx., 00xx. Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EUROCURRENCY OFFICE
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxx., 00xx. Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Xxxxx Fargo Bank, N.A.
ABA Routing No.: 000-000-000
Account No.: 451-0000000
Account Name: SYNDIC/WFB CORP/ACH
Reference No.: TRW Ref No 9118583038
$750,000,000 100% Total
-55-
61
EXHIBIT A
to
Revolving Credit Agreement
REVOLVING NOTE
Up to a maximum of
$_________________
(or the Eurocurrency or Date:__________________, 1997
Local Currency equivalent Cleveland, Ohio
hereof)
FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of
_____________________ (the "BANK") for the account of its Domestic or
Eurocurrency Office, as applicable (capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement referred to below), the outstanding principal amount of the
Loans made by the Bank to the undersigned pursuant to the Credit Agreement. The
principal amount of each Loan evidenced hereby shall be payable on the earliest
of: (i) the Revolving Period Termination Date, unless the Company shall have
made the election provided for in clause (ii) of Section 2.1 of the Credit
Agreement; (ii) the Term-Out Maturity Date, if the Company shall have made such
election; (iii) the last day of the applicable Interest Period for such Loan
(unless the Loan is Continued or Converted); or (iv) such other date as the
Company and the Relevant Bank may agree in writing.
The undersigned promises to pay interest on the unpaid principal amount of
each Loan evidenced hereby from the date such Loan is made until the principal
amount of such Loan is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal of, and interest on, any Loan are payable in immediately
available funds in the currency of such Loan to the Bank as its Domestic or
Eurodollar Office that made the Loan. The Loans made by the Bank to the
undersigned, and all payments made on account of principal thereof, shall be
recorded by the Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Note.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Revolving Credit Agreement, dated as of December 10, 1997,
among the undersigned, the Bank, and the other bank parties named therein, as
Banks (as the same may be amended, modified, or supplemented and in effect from
time to time, the "CREDIT AGREEMENT"). The Credit Agreement, among other things,
(i) provides for the making of Loans by the Bank to the undersigned from time to
time in an aggregate principal amount not to exceed at any time the dollar
amount first mentioned above and the indebtedness of the undersigned resulting
from each such Loan being evidenced by this Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for payments on account of the principal hereof prior to the
maturity
62
hereof upon the terms and conditions and in accordance with the provisions
therein specified. Reference is hereby made to the Credit Agreement for a
statement of said terms and provisions.
In addition to, and not in limitation of, the foregoing and the provisions
of the Credit Agreement hereinabove referred to, the undersigned further agrees,
subject only to any limitation imposed by applicable law, to pay all expenses,
including reasonable attorneys' fees and expenses, incurred by the holder of
this Note in seeking to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
DEMAND, PRESENTMENT, PROTEST, AND NOTICE OF NON-PAYMENT ARE HEREBY WAIVED
BY THE UNDERSIGNED.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF OHIO.
TRW INC.
By:_____________________________________
Xxxxxx X. Xxxxxxxxxxxxx
Vice President and
Treasurer
-2-
63
Schedule Attached to Revolving Note dated _________________, 1997 of TRW Inc.
payable to the order of ______________________________________
BASE RATE BORROWINGS
Unpaid
Date and Date and Amount Principal
Amount of of Repayment Balance of
Base Rate of Base Rate Base Rate Notation
Borrowing Borrowing Borrowings Made By
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Schedule Attached to Revolving Note dated _________________, 1997 of TRW Inc.
payable to the order of ______________________________________
FIXED RATE BORROWINGS
Date, Amount, Date and Unpaid
and Type of Interest Amount of Principal Notation
Borrowing Period Repayment Balance Made By
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65
EXHIBIT B
to
Revolving Credit Agreement
COMPLIANCE CERTIFICATE
To: Each of the Bank Parties to the Credit Agreement referred to below
Reference is made to our Revolving Credit Agreement, dated as of December
10, 1997 (herein as amended, modified or supplemented and in effect from time to
time called the "CREDIT AGREEMENT") with you. Terms used but not otherwise
defined herein are used herein as defined in the Credit Agreement.
The Company hereby certifies and warrants to you that the following is a
true and correct computation as at _________________ 19 __ (the "COMPUTATION
DATE") of Consolidated Net Worth contained in Section 9.2 of the Credit
Agreement:
MINIMUM CONSOLIDATED NET WORTH
REQUIRED UNDER SECTION 3.2
$1,600,000,000
LESS: The lessor of (i) the aggregate amount
expended by the Company subsequent
to December 31, 1995 for repurchase of
its Common Stock and (ii) $600,000,000 $_____________
$_____________
CONSOLIDATED NET WORTH
OF THE COMPANY
Consolidated shareholders'
investment $_____________
PLUS: Minority interests $_____________
$_____________
The Company hereby further certifies and warrants to you that no Event of
Default or Unmatured Event of Default has occurred and is continuing.
66
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed
and delivered by its duly authorized officer this ___ day of ________________,
19__.
TRW INC.
By _____________________________________
Its_____________________________________
67
EXHIBIT C
to
Revolving Credit Agreement
December 10, 1997
To: Each of the Banks party to the
Credit Agreements referred to below
Ladies and Gentlemen:
I am General Counsel of TRW Inc., an Ohio corporation (the "Company"), and
have acted in such capacity in connection with the Revolving Credit Agreement,
dated as of December 10, 1997 (the "Credit Agreement"), among the Company and
each of the financial institutions listed on the signature pages thereof.
Capitalized terms used but not otherwise defined are used herein as defined in
the Credit Agreement.
In connection with the opinions expressed below, I have examined or caused
to be examined by members of the TRW Law Department a copy of the Credit
Agreement and the Notes thereunder; and I have also made or caused to be made
such other examinations and inquiries as I have deemed necessary to enable me to
give the opinions hereinafter expressed. However, as to each of the opinions set
forth below which is limited to my knowledge, you should be aware that I have
neither made nor caused to be made any independent review for purposes of
rendering this opinion, although in the regular course of advising the Company I
have reviewed or caused to be reviewed various documents, records and matters of
law.
Based upon the foregoing, I am of the opinion that:
68
December 10, 1997
Page 2
1. The Company is a corporation duly incorporated and in good standing
under the laws of the State of Ohio.
2. The Company has full power to execute, deliver, and perform the Credit
Agreement and to borrow moneys thereunder and to execute, deliver, and
perform its obligations under the Notes.
3. The execution and delivery of the Credit Agreement and the Notes, the
borrowings under the Credit Agreement, and the performance by the
Company of its obligations under the Credit Agreement and the Notes,
have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any material provision of
applicable law now in effect or of the Amended Articles of Incorporation
or Regulations of the Company or, to my knowledge, of any agreement for
borrowed money or other material agreement binding upon the Company.
4. The Credit Agreement and the Notes have been duly executed and delivered
by the Company and are the legal, valid, and binding obligations of the
Company, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium laws or debtor relief proceedings or any similar laws or
proceedings affecting creditors' rights generally or by general
principles of equity.
I am a member of the bar of the State of Ohio and do not purport to be an
expert on, generally familiar with or qualified to express legal conclusions
based on laws other than the laws of the State of Ohio and the United States of
America.
This opinion is being delivered to you solely for your benefit as creditor
under the Credit Agreement and may be relied upon only by you for such purpose.
Very truly yours,
General Counsel
