<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 27,1994
CRANE CO.
(Exact name of registrant as specified in its Charter)
Delaware 1-1657 13-1952290
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
100 First Stamford Place, Stamford, CT 06902
(Address of principal executive offices) (Zip Code)
(203) 363-3000
Registrant's telephone number, including area code
(Not Applicable)
(Former name or former address, if changed since last report)
<PAGE>
<PAGE>
Item 2. Acquisition or Disposition of Assets
On April 27, 1994, Crane Acquisition Corp., a Delaware
corporation ("CAC") and a wholly-owned subsidiary of
Crane Co., a Delaware corporation ("Crane"), acquired
4,185,729 shares of the outstanding stock of Mark
Controls Corporation, a Delaware corporation, ("MRCC")
pursuant to a cash tender offer at $19.50 per share, at a
cost of $81,621,716. The shares so acquired together
with the 663,810 shares previously acquired by Crane at a
cost of $5, 963,752 constituted 96.3% of the outstanding
MRCC shares. On April 28, 1994, CAC merged with and into
MRCC and the surviving corporation, which thereby became
a wholly-owned subsidiary of Crane, continued to be named
Mark Controls Corporation. Pursuant to the terms of the
merger, holders of the remaining 188,771 MRCC shares
became entitled to receive $19.50 in cash for each of
their shares unless they exercised their right to dissent
and seek appraisal under Section 262 of the Delaware
General Corporation Law. Crane also refinanced MRCC's
$48,058,498 outstanding debt. The total cost of the
acquisition, including debt assumed and transaction
costs, was approximately $142,500,000. The source of the
funds used to finance the acquisition was general
corporate funds and short-term borrowings under its
uncommitted credit lines. Concurrent with the
acquisition, Crane entered into a $200,000,000 three year
revolving credit agreement with certain banks and Morgan
Guaranty Trust Company of New York, as agent, a copy of
which as amended is attached hereto as Exhibit A and
incorporated herein by reference.
Mark Controls' business consists primarily of designing,
manufacturing and marketing valves and other industrial
and commercial products that control flows and processes
in various industries including petroleum, chemical,
construction, food and beverage and power generation.
The company sells products directly to end users and
engineering contractors.
Item 7. Financial Statements and Exhibits
a. Financial Statements of business acquired
It has been determined that it is impracticable to
provide financial statements for MRCC in the form
required by Item 7 of Form 8-K within 15 days of the
acquisition. Such financial statements are expected to
be available and will be filed on or before May 30, 1994.<PAGE>
<PAGE>
b. Proforma Financial Information
It has been determined that it is impracticable to
provide proforma financial information relative to MRCC
in the form required by Item 7 of Form 8-K within 15 days
of the acquisition. Such information is expected to be
available and will be filed on or before May 30, 1994.
c. Exhibits
A. $200,000,000 Credit Agreement Between the
Banks Listed and Morgan Guaranty Trust Company
of New York, as Agent, dated as of April 26,
1994; and Amendment No. 1 thereto dated as of
May 11, 1994.
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned thereunto
duly authorized.
Crane Co.
Registrant
May 11, 1994
By:/s/ P.R. Hundt
P.R. Hundt
Vice President
By:/s/ M.L. Raithel
M.L. Raithel
Controller-Chief
Accounting Officer
<PAGE>
<PAGE> [CONFORMED COPY]
$175,000,000
($200,000,000 per Amendment No. 1)
CREDIT AGREEMENT
dated as of
April 26, 1994
among
Crane Co.,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations. . . 12
1.03 Types of Borrowings. . . . . . . . . . . 13
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend. . . . . . . . . . . 13
2.02 Notice of Committed Borrowing. . . . . . 14
2.03 Money Market Borrowings. . . . . . . . . 14
2.04 Notice to Banks; Funding of Loans. . . . 18
2.05 Notes. . . . . . . . . . . . . . . . . . 19
2.06 Maturity of Loans. . . . . . . . . . . . 20
2.07 Interest Rates . . . . . . . . . . . . . 20
2.08 Facility Fee . . . . . . . . . . . . . . 24
2.09 Optional Termination or Reduction
of Commitments . . . . . . . . . . . . . 24
2.10 Scheduled Termination of Commitments . . 25
2.11 Optional Prepayments . . . . . . . . . . 25
2.12 General Provisions as to Payments. . . . 25
2.13 Funding Losses . . . . . . . . . . . . . 26
2.14 Computation of Interest and Fees . . . . 26
ARTICLE III
CONDITIONS
SECTION 3.01 Closing. . . . . . . . . . . . . . . . . 27
3.02 Borrowings . . . . . . . . . . . . . . . 27
*Table of Contents is not a part of this Agreement.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power. . . . . . 28
4.02 Corporate and Governmental
Authorization; No Contravention. . . . . 28
4.03 Binding Effect . . . . . . . . . . . . . 29
4.04 Financial Information. . . . . . . . . . 29
4.05 Litigation.. . . . . . . . . . . . . . . 29
4.06 Compliance with ERISA. . . . . . . . . . 29
4.07 Environmental Matters. . . . . . . . . . 30
4.08 Taxes. . . . . . . . . . . . . . . . . . 30
4.09 Material Subsidiaries. . . . . . . . . . 31
4.10 Not an Investment Company. . . . . . . . 31
4.11 Full Disclosure. . . . . . . . . . . . . 31
ARTICLE V
COVENANTS
SECTION 5.01 Information. . . . . . . . . . . . . . . 31
5.02 Maintenance of Property; Insurance . . . 34
5.03 Conduct of Business and Maintenance
of Existence . . . . . . . . . . . . . . 34
5.04 Compliance with Laws.. . . . . . . . . . 34
5.05 Inspection of Property, Books and
Records. . . . . . . . . . . . . . . . . 35
5.06 Subsidiary Debt. . . . . . . . . . . . . 35
5.07 Cash Flow Coverage . . . . . . . . . . . 35
5.08 Leverage Ratio . . . . . . . . . . . . . 35
5.09 Negative Pledge. . . . . . . . . . . . . 35
5.10 Consolidations, Mergers and Sales
of Assets. . . . . . . . . . . . . . . . 36
5.11 Use of Proceeds. . . . . . . . . . . . . 37
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default. . . . . . . . . . . . 37
6.02 Notice of Default. . . . . . . . . . . . 40
<PAGE>
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization. . . . . . 40
7.02 Agent and Affiliates.. . . . . . . . . . 40
7.03 Action by Agent. . . . . . . . . . . . . 40
7.04 Consultation with Experts. . . . . . . . 41
7.05 Liability of Agent . . . . . . . . . . . 41
7.06 Indemnification. . . . . . . . . . . . . 41
7.07 Credit Decision. . . . . . . . . . . . . 41
7.08 Successor Agent. . . . . . . . . . . . . 42
7.09 Agent's Fee. . . . . . . . . . . . . . . 42
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair. . . . . . . . 42
8.02 Illegality . . . . . . . . . . . . . . . 43
8.03 Increased Cost and Reduced Return. . . . 44
8.04 Taxes. . . . . . . . . . . . . . . . . . 45
8.05 Base Rate Loans Substituted for
Affected Fixed Rate Loans. . . . . . . . 47
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. . . . . . . . . . . . . . . . . 48
9.02 No Waivers . . . . . . . . . . . . . . . 48
9.03 Expenses; Indemnification. . . . . . . . 49
9.04 Sharing of Set-Offs. . . . . . . . . . . 49
9.05 Amendments and Waivers . . . . . . . . . 50
9.06 Successors and Assigns . . . . . . . . . 50
9.07 Collateral . . . . . . . . . . . . . . . 52
9.08 Governing Law; Submission to Juris-
diction. . . . . . . . . . . . . . . . . 52
9.09 Counterparts; Integration;
Effectiveness. . . . . . . . . . . . . . 52
9.10 WAIVER OF JURY TRIAL . . . . . . . . . . 53
<PAGE>
<PAGE>
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of General Counsel of the Borrower
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
<PAGE>
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of April 26, 1994 among CRANE
CO., the BANKS listed on the signature pages hereof and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following
terms, as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute Rates
pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Administrative Questionnaire" means, with
respect to each Bank, an administrative questionnaire in the form
prepared by the Agent and submitted to the Agent (with a copy to
the Borrower) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of
New York in its capacity as agent for the Banks hereunder, and
its successors in such capacity.
"Applicable Lending Office" means, with respect
to any Bank, (i) in the case of its Domestic Loans, its Domestic
Lending Office, (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and (iii) in the case of its Money
Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
<PAGE> "Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and (ii)
the sum of 1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be
made by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to Article
VIII.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of ERISA
which is not a Plan or a Multiemployer Plan and which is
maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Crane Co., a Delaware
corporation, and its successors.
"Borrower's 1993 Form 10-K" means the Borrower's
annual report on Form 10-K for 1993, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act
of 1934.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable Notice of
Committed Borrowing.
"CD Margin" has the meaning set forth in Section
2.07(b).
"CD Reference Banks" means The Bank of New York,
Credit Suisse and Morgan Guaranty Trust Company of New York.
"Closing Date" means the date on or after the
Effective Date on which the Agent shall have received the
documents specified in or pursuant to Section 3.01.
<PAGE>
<PAGE>
"Commitment" means, with respect to each Bank,
the amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from time
to time pursuant to Section 2.09.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Cash Flow" means for any period
(i) Consolidated Net Income for such period plus (ii) to the
extent deducted in determining Consolidated Net Income for such
period the sum of (x) depreciation and amortization expense for
such period plus (y) the deferred portion of the provision for
taxes on income for such period, all determined on a consolidated
basis for the Borrower and its Consolidated Subsidiaries.
"Consolidated Debt" means at any date the Debt
of the Borrower and its Consolidated Subsidiaries, determined on
a consolidated basis as of such date.
"Consolidated Net Income" means for any period
the net income (before preferred and common stock dividends) of
the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of such
date.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries determined as of such date.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such
Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.08 and the
definitions of Material Debt and Material Financial Obligations,
all contingent obligations) of such Person to reimburse any bank
or other Person in respect of amounts paid under a letter of
credit or similar instrument, except letters of credit in an
<PAGE>
aggregate amount not exceeding $20,000,000, (vi) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt
is otherwise an obligation of such Person, and (vii) all Debt of
others Guaranteed by such Person, other than recourse obligations
in respect of chattel paper sold by such Person.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Derivatives Obligations" of any Person means
all obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction
(including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
"Disclosure Letter" has the meaning set forth in
Section 4.05.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in New
York City are authorized by law to close.
"Domestic Lending Office" means, as to each
Bank, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent; provided
that any Bank may so designate separate Domestic Lending Offices
for its Base Rate Loans, on the one hand, and its CD Loans, on
the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning
set forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 9.09.
<PAGE>
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health
or to emissions, discharges or releases of pollutants,
contaminants, Hazardous Substances or wastes into the environment
including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary
and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common
control which, together with the Borrower or any Subsidiary, are
treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for international
business (including dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to
each Bank, its office, branch or affiliate located at
its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Euro-Dollar
Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending
Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth
in Section 2.07(c).
"Euro-Dollar Reference Banks" means the
principal London offices of The Bank of New York, Credit Suisse
and Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
<PAGE>
"Event of Default" has the meaning set forth in
Section 6.01.
"Federal Funds Rate" means, for any day, the
rate per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted
to Morgan Guaranty Trust Company of New York on such day on such
transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR Loans
bearing interest at the Base Rate pursuant to Section 8.01(a)) or
any combination of the foregoing.
"Funded Debt" means at any date, with respect to
any Person, all Debt of such Person that is not a current
liability as of such date.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment
of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic,
radioactive, caustic or otherwise hazardous substance, including
petroleum, its derivatives, by-products and other hydrocarbons,
or any substance having any constituent elements displaying any
of the foregoing characteristics.
"Indemnitee" has the meaning set forth in
Section 9.03(b).
<PAGE> "Interest Period" means: (1) with respect to
each Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month (or
on a day for which there is no numerically
corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c)
below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date;
(2) with respect to each CD Borrowing, the period commencing on
the date of such Borrowing and ending 30, 60, 90 or 180 days
thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall, subject to clause (b) below, be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date;
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day shall,
subject to clause (b) below, be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date;
<PAGE>
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending such
whole number of months thereafter as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar Business Day of a calendar month (or
on a day for which there is no numerically
corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c)
below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date; and
(5) with respect to each Money Market Absolute Rate Borrowing,
the period commencing on the date of such Borrowing and ending
such number of days thereafter (but not less than 7 days) as the
Borrower may elect in accordance with Section 2.03; provided
that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall, subject to clause (b) below, be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date.
"Internal Revenue Code" means the Internal
Revenue Code of 1986, as amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on the
London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind, or any other type of preferential arrangement that
has the practical effect of creating a security interest, in
<PAGE>
respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar
Loan or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination of the
foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Debt" means Debt (other than the
Notes) of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $15,000,000.
"Material Financial Obligations" means a
principal or face amount of Debt and/or payment obligations in
respect of Derivatives Obligations of the Borrower and/or one or
more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $15,000,000.
"Material Plan" means at any time a Plan or
Plans (other than the defined contribution plan of ELDEC
Corporation) having aggregate Unfunded Liabilities in excess of
$5,000,000.
"Material Subsidiary" means at any time a
Subsidiary which as of such time meets the definition of a
"significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan
to be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office, branch or
affiliate<PAGE>
<PAGE>
of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Agent; provided
that any Bank may from time to time by notice to the Borrower and
the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as
the context may require.
"Money Market LIBOR Loan" means a loan to be
made by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth
in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an
employee pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is
then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and "Note" means
any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of
Committed Borrowing (as defined in Section 2.02) or a Notice of
Money Market Borrowing (as defined in Section 2.03(f)).
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in
Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
<PAGE>
<PAGE>
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is covered
by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a member of
the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached
hereto identified as such.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in New
York City from time to time as its Prime Rate.
"Reference Banks" means the CD Reference Banks
or the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Refunding Borrowing" means a Committed
Borrowing which, after application of the proceeds thereof,
results in no net increase in the outstanding principal amount of
Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board
of Governors of the Federal Reserve System, as in effect from
time to time.
"Required Banks" means at any time Banks having
at least 66 2/3% of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes
evidencing at least 66 2/3% of the aggregate unpaid principal
amount of the Loans.
"Subsidiary" means, as to any Person, any
corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by
such Person; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower.
<PAGE>
<PAGE>
"Termination Date" means April 26, 1997, or, if
such day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
"Total Capitalization" means, at any date, the
sum of Consolidated Debt and Consolidated Net Worth as of such
date.
"Unfunded Liabilities" means, with respect to
any Plan at any time, the amount (if any) by which (i) the value
of all benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC
for purposes of Section 4044 of ERISA, exceeds (ii) the fair
market value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of
America, including the District of Columbia, but excluding its
territories and possessions.
"Wholly-Owned Subsidiary" means any Subsidiary
all of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in
effect from time to time, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks; provided that, if the Borrower notifies
the Agent that the Borrower wishes to amend any covenant in
Article V to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Borrower that the Required Banks
wish to amend Article V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately
before the relevant change in generally accepted accounting
principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and
<PAGE>
<PAGE>
the Required Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Banks
to be made to the Borrower pursuant to Article II on a single
date and for a single Interest Period. Borrowings are classified
for purposes of this Agreement either by reference to the pricing
of Loans comprising such Borrowing (e.g., a "Euro-Dollar
Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids in
accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. From time
to time prior to the Termination Date, each Bank severally
agrees, on the terms and conditions set forth in this Agreement,
to make loans to the Borrower pursuant to this Section from time
to time in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding shall
not exceed the amount of its Commitment. Each Borrowing under
this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any
such Borrowing may be in the aggregate amount available in
accordance with Section 3.02(c)) and shall be made from the
several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time prior to the
Termination Date under this Section.
SECTION 2.02. Notice of Committed Borrowing.
The Borrower shall give the Agent notice (a "Notice of Committed
Borrowing") not later than 11:00 A.M. (New York City time) on (x)
the date of each Base Rate Borrowing, (y) the second Domestic
Business Day before each CD Borrowing and (z) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be
a Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
<PAGE>
<PAGE>
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of
Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Banks from time to time
prior to the Termination Date to make offers to make Money Market
Loans to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set
forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by telex or
facsimile transmission a Money Market Quote Request substantially
in the form of Exhibit B hereto so as to be received no later
than 11:00 A.M. (New York City time) on (x) the fourth
Euro-Dollar Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Domestic
Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing,
which shall be $5,000,000 or a larger multiple of
$1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and<PAGE>
<PAGE>
(iv) whether the Money Market Quotes requested
are to set forth a Money Market Margin or a Money
Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request. No Money Market Quote Request shall be given within
five Euro-Dollar Business Days (or such other number of days as
the Borrower and the Agent may agree) of any other Money Market
Quote Request.
(c) Invitation for Money Market Quotes.
Promptly upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission an
Invitation for Money Market Quotes substantially in the form of
Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to
make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection
(d) and must be submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section
9.01 not later than (x) 4:00 P.M. (New York City time) on the
fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M. (New
York City time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective);
provided that Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such
affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR Auction or
(y) 15 minutes prior to the deadline for the other Banks, in the
case of an Absolute Rate Auction. Subject to Articles III and
VI, any Money Market Quote so made shall be irrevocable except
with the written consent of the Agent given on the instructions
of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any case
specify:<PAGE>
<PAGE>
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans
for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by
such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin") offered for each such
Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be
added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the
nearest 1/10,000th of 1%) (the "Money Market Absolute
Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by
the quoting Bank with respect to each Interest Period specified
in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be
disregarded if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall
promptly notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with subsection
(d) and (y) of<PAGE>
<PAGE>
any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market
Quote. The Agent's notice to the Borrower shall specify (A) the
aggregate principal amount of Money Market Loans for which offers
have been received for each Interest Period specified in the
related Money Market Quote Request, (B) the respective principal
amounts and Money Market Margins or Money Market Absolute Rates,
as the case may be, so offered and (C) if applicable, limitations
on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not
later than 11:00 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the Agent
of its acceptance or non-acceptance of the offers so notified to
it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the
aggregate principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each
Money Market Borrowing may not exceed the applicable
amount set forth in the related Money Market Quote
Request,
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 or a larger multiple of
$1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money
Market Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that
is described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or Money
Market<PAGE>
<PAGE>
Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers
are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Agent may
deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determinations by the Agent of the
amounts of Money Market Loans shall be conclusive in the absence
of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents thereof and
of such Bank's share (if any) of such Borrowing and such Notice
of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City
time) on the date of each Borrowing, each Bank participating
therein shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal
or other funds immediately available in New York City, to the
Agent at its address referred to in Section 9.01. Unless the
Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds
so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b), or remitted
by the Borrower to the Agent as provided in Section 2.12, as the
case may be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Agent such Bank's share of such
Borrowing, the Agent may assume that such Bank has made such
share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and
the Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to
the extent that such Bank shall not have so made such share
available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such
corresponding amount together with <PAGE>
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to<PAGE>
<PAGE>
the Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate and the interest
rate applicable thereto pursuant to Section 2.07 and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each
Bank shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office in an
amount equal to the aggregate unpaid principal amount of such
Bank's Loans.
(b) Each Bank may, by notice to the Borrower
and the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the aggregate
unpaid principal amount of such Loans. Each such Note shall be
in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans
of the relevant type. Each reference in this Agreement to the
"Note" of such Bank shall be deemed to refer to and include any
or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant
to Section 3.01(a), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and maturity
of each Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and may,
if such Bank so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any
such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest
Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such
day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on
any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2%
<PAGE>
plus the rate otherwise applicable to Base Rate Loans for such
day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate per annum equal to
the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to such Interest Period; provided that if any CD Loan
or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less
than 30 days, such portion shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is
longer than 90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD Loan
shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the higher of (i)
the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to the Interest Period for such Loan and (ii) the rate
applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any
Interest Period means a rate per annum determined pursuant to the
following formula:
[CDBR ]*
ACDR = [ ---------- ] + AR [1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be the
average (rounded upward, if necessary, to the next higher 1/100
of 1%) of the prevailing rates per annum bid at 10:00 A.M. (New
York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the
purchase at face value from each CD Reference Bank of its
certificates of deposit in an amount comparable to the principal
amount of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable to such
Interest Period.<PAGE>
<PAGE>
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
five billion dollars in respect of new non-personal time deposits
in dollars in New York City having a maturity comparable to the
related Interest Period and in an amount of $100,000 or more.
The Domestic Reserve Percentage for any Interest Period is that
in effect on the first day of such Interest Period.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of
12 C.F.R. paragraph 327.3(d) (or any successor provision) to the Federal
Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at
offices of such institution in the United States. The Assessment
Rate for any Interest Period is that in effect on the first day
of such Interest Period.
(c) Each Euro-Dollar Loan shall bear interest
on the outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum equal
to the sum of the Euro-Dollar Margin for such day plus the
Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months
after the first day thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum equal to
the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable
to any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates
per annum at which deposits in dollars are offered to each of the
Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business
Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar<PAGE>
<PAGE>
Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such
Interest Period.
"Euro-Dollar Reserve Percentage" means for any
day that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the
maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar
Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office
of any Bank to United States residents). The Euro-Dollar Reserve
Percentage for any Interest Period is that in effect on the first
day of such Interest Period.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the higher of (i) the
sum of 2% plus the Euro-Dollar Margin for such day plus the
Adjusted London Interbank Offered Rate applicable to the Interest
Period for such Loan and (ii) the sum of 2% plus the Euro-Dollar
Margin for such day plus the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (x) the
average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or, if
such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than
six months as the Agent may select) deposits in dollars in an
amount approximately equal to such overdue payment due to each of
the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable
period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 2% plus the rate applicable to
Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money
Market LIBOR Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market
LIBOR Borrowing were a Committed Euro-Dollar Borrowing) plus (or
minus) the Money Market Margin quoted by the Bank making such
Loan in accordance with Section 2.03. Each Money Market Absolute
Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Absolute Rate quoted by the<PAGE>
<PAGE>
Bank making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof.
Any overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the Base Rate for
such day.
(f) The Agent shall determine each interest
rate applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of each
rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated by
this Section. If any Reference Bank does not furnish a timely
quotation, the Agent shall determine the relevant interest rate
on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations
is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Facility Fee. The Borrower shall
pay to the Agent for the account of the Banks ratably a facility
fee at the Facility Fee Rate (determined daily in accordance with
the Pricing Schedule). Such facility fee shall accrue (i) from
and including April 26, 1994 to but excluding the Termination
Date (or earlier date of termination of the Commitments in their
entirety), on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including the
Termination Date or such earlier date of termination to but
excluding the date the Loans shall be repaid in their entirety,
on the daily aggregate outstanding principal amount of the Loans.
Accrued fees under this Section shall be payable quarterly on
each June 30, September 30, December 30 and March 30 and upon the
date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction
of Commitments. The Borrower may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the Commitments
at any time, if no Loans are outstanding at such time or (ii)
ratably reduce from time to time by an aggregate amount of
$5,000,000 or any larger multiple thereof, the aggregate amount
of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
SECTION 2.10. Scheduled Termination of
Commitments. The Commitments shall terminate on the Termination
Date and any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.<PAGE>
<PAGE>
SECTION 2.11. Optional Prepayments. (a)
Subject in the case of any Fixed Rate Borrowing to Section 2.13,
the Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay any Domestic Borrowing (or any Money
Market Borrowing bearing interest at the Base Rate pursuant to
Section 8.01(a)) or upon at least three Euro-Dollar Business
Days' notice to the Agent, prepay any Euro-Dollar Borrowing, in
each case in whole at any time, or from time to time in part in
amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 2.11(a), the
Borrower may not prepay all or any portion of the principal
amount of any Money Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank's ratable share (if
any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.12. General Provisions as to
Payments. (a) The Borrower shall make each payment of principal
of, and interest on, the Loans and of fees hereunder, not later
than 1:00 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 9.01. The Agent
will promptly distribute to each Bank its ratable share of each
such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law
or otherwise, interest thereon shall be payable for such extended
time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make such<PAGE>
<PAGE>
payment in full, the Agent may assume that the Borrower has made
such payment in full to the Agent on such date and the Agent may,
in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent that the Borrower shall not have so
made such payment, each Bank shall repay to the Agent forthwith
on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed Rate
Loan (pursuant to Article II, VI or VIII or otherwise) on any day
other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant
to Section 2.07(d), or if the Borrower fails to borrow or prepay
any Fixed Rate Loans after notice has been given to any Bank in
accordance with Section 2.04(a) or 2.11(c), the Borrower shall
reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment or failure to borrow or prepay, provided
that such Bank shall have delivered to the Borrower a certificate
as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed on
the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first
day but excluding the last day). All other interest and fees
shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS
SECTION 3.01. Closing. The closing hereunder
shall occur upon receipt by the Agent of the following documents,
each dated the Closing Date unless otherwise indicated:
(a) a duly executed Note for the account of
each Bank dated on or before the Closing Date
complying with the provisions of Section 2.05;
(b) an opinion of the General Counsel of the
Borrower, substantially in the form of Exhibit E
hereto and covering such additional matters relating
to the transactions contemplated hereby as the
Required Banks may reasonably request;<PAGE>
<PAGE>
(c) an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the
form of Exhibit F hereto and covering such additional
matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
and
(d) all documents the Agent may reasonably
request relating to the existence of the Borrower, the
corporate authority for and the validity of this
Agreement and the Notes, and any other matters
relevant hereto, all in form and substance
satisfactory to the Agent.
The Agent shall promptly notify the Borrower and the Banks of the
Closing Date, and such notice shall be conclusive and binding on
all parties hereto.
SECTION 3.02. Borrowings. The obligation of
any Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) the fact that the Closing Date shall have
occurred on or prior to April 26, 1994;
(b) receipt by the Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as the
case may be;
(c) the fact that, immediately after such
Borrowing, the aggregate outstanding principal amount
of the Loans will not exceed the aggregate amount of
the Commitments;
(d) the fact that, immediately before and after
such Borrowing, no Default shall have occurred and be
continuing; and
(e) the fact that the representations and
warranties of the Borrower contained in this Agreement
(except, in the case of a Refunding Borrowing, the
representations and warranties set forth in Sections
4.04(b) and 4.05 as to any matter which has
theretofore been disclosed in writing by the Borrower
to the Banks) shall be true on and as of the date of
such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Borrowing as to
the facts specified in clauses (c), (d) and (e) of this Section.
<PAGE>
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power.
The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and
performance by the Borrower of this Agreement and the Notes are
within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or
official and <PAGE>
do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon the Borrower or any of its Subsidiaries or result in the
creation or imposition of any Lien on any asset of the Borrower
or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower and
each Note, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general
principles of equity.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December 31,
1993 and the related consolidated statements of income, earned
surplus, capital surplus, and cash flows for the fiscal year then
ended, reported on by independent public accountants and set
forth in the Borrower's 1993 Form 10-K, a copy of which has been
delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) Since December 31, 1993 there has been no
material adverse change in the business, financial position, <PAGE>
<PAGE>
results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as disclosed
in the Borrower's disclosure letter dated April 25, 1994 from the
Borrower to the Banks (the "Disclosure Letter"), a copy of which
has been delivered to each of the Banks, there is no action, suit
or proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or any of
its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable probability of an adverse decision which would
materially adversely affect the business, consolidated financial
position or consolidated results of operations of the Borrower
and its Consolidated Subsidiaries, considered as a whole, or
<PAGE>
which in any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Except as
disclosed in the Disclosure Letter, each member of the ERISA
Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan. No member of the ERISA Group has
(i) sought a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or
made any amendment to any Plan or Benefit Arrangement, 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 Internal
Revenue Code or (iii) incurred any liability under Title IV of
ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the
ordinary course of its business, the Borrower from time to time
conducts reviews of the effect of Environmental Laws on various
portions of the business, operations and properties of the
Borrower and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of
or change in the nature of operations conducted thereat, any <PAGE>
<PAGE>
costs or liabilities in connection with off-site disposal of
wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any
related costs and expenses). Except as disclosed in the
Disclosure Letter, on the basis of such reviews made to date, the
Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a material adverse
effect on the business, financial condition, <PAGE>
results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. Except as disclosed in
the Disclosure Letter, the Borrower and its Subsidiaries have
filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Borrower or any Subsidiary, except
such taxes as are being contested in good faith by appropriate
proceedings. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes or other
governmental charges in the nature of taxes are, in the opinion
of the Borrower, adequate.
SECTION 4.09. Material Subsidiaries. Each of
the Borrower's Material Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate
powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
SECTION 4.10. Not an Investment Company. The
Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or any Bank for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will
be, true, accurate and complete in all material respects on the
date as of which such information is stated or certified.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank
has any Commitment hereunder or any amount payable under any Note
remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks:<PAGE>
<PAGE>
(a) as soon as available and in any event
within 90 days after the end of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, earned surplus, capital
surplus, and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal
year (it being understood that the requirement to deliver such
information may be satisfied by the delivery of the Borrower's
annual report on Form 10-K for such fiscal year so long as such
annual report continues to include such information), all
reported on in a manner acceptable to the Securities and Exchange
Commission by Deloitte & Touche or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event
within 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such
quarter and the related consolidated statements of
income and cash flows for such quarter and for the
portion of the Borrower's fiscal year ended at the end
of such quarter, setting forth in the case of such
statements of income and cash flows in comparative
form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous
fiscal year (it being understood that the requirement
to deliver such information may be satisfied by the
delivery of the Borrower's quarterly report on Form
10-Q for such fiscal quarter so long as such quarterly
report continues to include such information), all
certified (subject to normal year-end adjustments) as
to fairness of presentation, generally accepted
accounting principles and consistency by the chief
financial officer or the chief accounting officer of
the Borrower;
(c) simultaneously with the delivery of each
set of financial statements referred to in clauses (a)
and (b) above, a certificate of the chief financial
officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the
Borrower was in compliance with the requirements of
Sections 5.06 to 5.08, inclusive, on the date of such
financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if
any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
<PAGE>
<PAGE>
(d) within five days after any officer of the
Borrower obtains knowledge of any Default, if such
Default is then continuing, a certificate of the chief
financial officer or the chief accounting officer of
the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to
take with respect thereto;
(e) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(f) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or
its equivalent) and reports on Form 8-K and if not
previously delivered reports on Forms 10-K and 10-Q
(or their equivalents) which the Borrower shall have
filed with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC of
any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Material Plan which might
constitute grounds for a termination of such Material
Plan under Title IV of ERISA, or knows that the plan
administrator of any Material Plan has given or is
required to give notice of any such reportable event,
a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Material Plan,
a copy of such notice; (iv) applies for a waiver of
the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Material Plan
under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Material Plan pursuant
to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any
Material Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any
Material Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien
or the posting of a bond or other security, a <PAGE>
<PAGE>
certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth
details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA
Group is required or proposes to take; and
(h) from time to time such additional
information regarding the financial position or
business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Maintenance of Property;
Insurance. Except as disclosed in the Disclosure Letter, the
Borrower will keep, and will cause each Subsidiary to keep, all
property useful and necessary in its business in good working
order and condition (it being understood that the Borrower or any
Subsidiary may abandon or dispose of property if it in good faith
determines that such action is in its best interests and is not
materially disadvantageous to the Banks); will maintain, and will
cause each Subsidiary to maintain (either in the name of the
Borrower or in such Subsidiary's own name) with reputable
insurance companies, insurance on their property against losses
greater than $5,000,000 in at least such amounts and against at
least such risks as usually are insured against in the same
general area by companies of established repute engaged in the
same or a similar business; and will furnish to the Agent full
information as to the insurance carried.
SECTION 5.03. Conduct of Business and
Maintenance of Existence. The Borrower will preserve, renew and
keep in full force and effect, and will cause each Subsidiary to
preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal
conduct of business; provided that nothing in this Section 5.03
shall prohibit (i) the merger of a Subsidiary into the Borrower
or the merger or consolidation of a Subsidiary with or into
another Person if the corporation surviving such consolidation or
merger is a Subsidiary and if, in each case, after giving effect
thereto, no Default shall have occurred and be continuing, (ii)
the termination of the corporate existence or disposition of any
Subsidiary if the Borrower in good faith determines that such
termination or disposition is in the best interest of the
Borrower and is not materially disadvantageous to the Banks or
(iii) the termination of the corporate existence or disposition
of National Rejectors, Inc. GmbH, a subsidiary of the Borrower
("NRI").
SECTION 5.04. Compliance with Laws. The
Borrower will comply, and cause each Subsidiary to comply, in all
material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities
<PAGE>
<PAGE>
(including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity
of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.05. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each Subsidiary
to keep, proper books of record and account in which full, true
and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives
of any Bank at such Bank's expense to visit and inspect any of
their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. Subsidiary Debt. The Borrower
will not permit any Subsidiary to incur or at any time be liable
with respect to any Funded Debt, or to issue or have outstanding
any preferred stock, except (i) Funded Debt or preferred stock
outstanding on the date hereof; (ii) Funded Debt or preferred
stock of a Subsidiary issued to and held by the Borrower or a
Wholly-Owned Subsidiary; (iii) Funded Debt or preferred stock of
any corporation existing at the time such corporation becomes a
Subsidiary of the Borrower and not created in contemplation of
such event and (iv) refinancing, extension, renewal or refunding
of any Funded Debt permitted by the foregoing clauses.
Notwithstanding the provisions of the previous sentence, the
Borrower may permit any Subsidiary to incur or be liable with
respect to Funded Debt, if, after giving effect thereto, the
aggregate outstanding principal amount of Funded Debt of all
Subsidiaries not permitted by the preceding sentence does not
exceed $40,000,000.
SECTION 5.07. Cash Flow Coverage. As of the
last day of each fiscal quarter, Consolidated Cash Flow for the
12-month period ending on such date shall not be less than 17% of
Consolidated Debt as of such date.
SECTION 5.08. Leverage Ratio. The ratio of
Consolidated Debt to Total Capitalization will not exceed (i) 70%
at any date on or prior to March 31, 1995 or (ii) 65% at any date
thereafter.
SECTION 5.09. Negative Pledge. Neither the
Borrower nor any Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
<PAGE>
<PAGE>
(a) Liens existing on the date of this
Agreement securing Debt outstanding on the date of
this Agreement in an aggregate principal or face
amount not exceeding $75,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt
incurred or assumed for the purpose of financing all
or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset
concurrently with or within 90 days after the
acquisition thereof;
(d) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary
and not created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by
any Lien permitted by any of the foregoing clauses of
this Section, provided that such Debt is not increased
and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its
business which (i) do not secure Debt or Derivatives
Obligations, (ii) do not secure any obligation in an
amount exceeding $75,000,000 and (iii) do not in the
aggregate materially detract from the value of its
assets or materially impair the use thereof in the
operation of its business;
(h) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate
amount of cash and cash equivalents subject to such
Liens may at no time exceed $5,000,000; and
(i) Liens not otherwise permitted by the
foregoing clauses of this Section securing Debt in an
aggregate principal or face amount at any date not to
exceed 10% of Consolidated Net Worth.
SECTION 5.10. Consolidations, Mergers and Sales
of Assets. (a) The Borrower will not consolidate or merge with
or into any other Person or sell, lease or otherwise transfer all
<PAGE>
or substantially all of its assets to any other Person; provided
that any Subsidiary may merge into the Borrower; and provided
further that the Borrower may merge into or consolidate with a
Wholly-Owned Subsidiary organized under the laws of another state
of the United States in order to effect a change of the corporate
domicile of the Borrower so long as (i) the ownership of the
outstanding equity securities of the surviving corporation is
substantially identical to the ownership of the equity securities
of the Borrower immediately prior to such transaction and (ii)
the surviving corporation expressly assumes the covenants and
obligations of the Borrower hereunder and under the Notes by an
instrument in form and substance satisfactory to the Agent.
(b) The Borrower will not permit any Material
Subsidiary to consolidate or merge with or into any Person, or to
sell, lease or otherwise transfer all or substantially all of its
assets to any Person unless the surviving corporation or
transferee, as the case may be, is the Borrower or a Wholly-Owned
Subsidiary.
SECTION 5.11. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the Borrower
for its general corporate purposes, including without limitation
the possible purchase of "margin stock" within the meaning of
Regulation U. No portion of the proceeds of any Loan shall be
(a) used in contravention of any applicable law or regulation or
(b) used to provide funds for any acquisition unless such
acquisition shall have been disclosed by the Borrower to each of
the Banks promptly upon the execution and delivery of any letter
of intent or comparable agreement with respect thereto.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or
more of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Note, or shall fail to pay within
five days of the due date thereof any interest on any
Note, or shall fail to pay within 10 days of the due
date thereof any fees or any other amounts payable
hereunder;
(b) the Borrower shall fail to observe or
perform any covenant contained in Sections 5.06 to
5.11, inclusive, and, in the case of Sections 5.06 and
5.09, such failure shall continue for 15 days;
<PAGE>
<PAGE>
(c) the Borrower shall fail to observe or
perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof
has been given to the Borrower by the Agent at the
request of any Bank;
(d) any representation, warranty, certification
or statement made by the Borrower in this Agreement or
in any certificate, financial statement or other
document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail
to make any payment in respect of any Material
Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt or enables the holder of such Debt or
any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Borrower or any Material Subsidiary
shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief
with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to
the appointment of or taking possession by any such
official in an involuntary case or other proceeding
commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or
shall take any corporate action to authorize any of
the foregoing;
(h) an involuntary case or other proceeding
shall be commenced against the Borrower or any
Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for <PAGE>
<PAGE>
relief shall be entered against the Borrower or any Material
Subsidiary under the federal bankruptcy laws as now or hereafter
in effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of
$10,000,000 which it shall have become liable to pay under Title
IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan
must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer
Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $10,000,000;
(j) a judgment or order for the payment of
money in excess of $10,000,000 shall be rendered
against the Borrower or any Material Subsidiary and
such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission
under said Act) of 30% or more of the outstanding
shares of common stock of the Borrower; or, during any
period of twenty-four consecutive calendar months,
individuals who were directors of the Borrower on the
first day of such period shall cease to constitute a
majority of the board of directors of the Borrower;
then, and in every such event, the Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the
Commitments, by notice to the Borrower terminate the Commitments
and they shall thereupon terminate, and (ii) if requested by
Banks holding Notes evidencing more than 50% in aggregate
principal amount of the Loans, by notice to the Borrower declare
the Notes (together with accrued interest thereon) to be, and the
Notes shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; provided that in the
case of any of the Events of Default specified in clause (g) or
(h) above with respect to the Borrower, without any notice to the
Borrower or any other act by the Agent or the Banks, the<PAGE>
<PAGE>
Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent
shall give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the Agent
by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same rights and
powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent,
and Morgan Guaranty Trust Company of New York and its affiliates
may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent shall
not be required to take any action with respect to any Default,
except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with
the consent or at the request of the Required Banks or (ii) in
the absence of its own gross negligence or willful misconduct.
Neither the Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be
<PAGE>
<PAGE>
responsible for or have any duty to ascertain, inquire into or
verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii)
the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith.
The Agent shall not incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission
or similar writing) believed by it to be genuine or to be signed
by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank
shall, ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except
such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in
connection with this Agreement or any action taken or omitted by
such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance upon
the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and the
Borrower. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Banks, and
shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under the
laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by a
successor
<PAGE>
<PAGE>
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall
pay to the Agent for its own account fees in the amounts and at
the times previously agreed upon between the Borrower and the
Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest
Rate Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts)
are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks
having 50% or more of the aggregate amount of the
Commitments advise the Agent that the Adjusted CD Rate
or the Adjusted London Interbank Offered Rate, as the
case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks
of funding their CD Loans or Euro-Dollar Loans, as the
case may be, for such Interest Period, the Agent shall
forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower
that the circumstances giving rise to such suspension
no longer exist, the obligations of the Banks to make
CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the
Agent at least two Domestic Business Days before the
date of any Fixed Rate Borrowing for which a Notice of
Borrowing has previously been given that it elects not
to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing
shall instead be made as a Base Rate Borrowing and
(ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans
comprising such Borrowing shall bear interest for each
day from and including the first day to but excluding
the last day of the Interest Period applicable thereto
at the Base Rate for such day.<PAGE>
<PAGE>
SECTION 8.02. Illegality. If, on or after the
date of this Agreement, the adoption of any applicable law, rule
or regulation, or any change in any applicable law, rule or
regulation, or any 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 (or its Euro-Dollar Lending Office)
with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency
shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and
the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and
fund any of its outstanding Euro-Dollar Loans to maturity and
shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan, together with accrued interest thereon.
Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal
amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of
the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced
Return. (a) If on or after (x) the date hereof, in the case of
any Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case of
any Money Market Loan, the adoption of any applicable law, rule
or regulation, or any change in any applicable law, rule or
regulation, or any 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 (or its Applicable Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding (i) with
respect to any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage and (ii) with respect to
any Euro-Dollar Loan
<PAGE>
<PAGE>
any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such requirement
reflected in an applicable Assessment Rate) or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending
Office) or on the United States market for certificates of
deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note or its obligation to
make Fixed Rate Loans and the result of any of the foregoing is
to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Fixed Rate Loan, or to
reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under
its Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that,
after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change in any
such law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital of such
Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or
directive (taking into consideration its 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 (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate
such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this
<PAGE>
<PAGE>
Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 8.04.Taxes. (a) For purposes of this Section 8.04,
the following terms have the following meanings:
"Taxes" means any and all present or future
taxes, duties, levies, imposts, deductions, charges or
withholdings with respect to any payment by the Borrower pursuant
to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Bank and the
Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction under the laws of which
such Bank or the Agent (as the case may be) is organized or in
which its principal executive office is located or, in the case
of each Bank, in which its Applicable Lending Office is located
and (ii) in the case of each Bank, any United States withholding
tax imposed on such payments but only to the extent that such
Bank is subject to United States withholding tax at the time such
Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp
or documentary taxes and any other excise or property taxes, or
similar charges or levies, which arise from any payment made
pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this
Agreement or any Note.
(b) Any and all payments by the Borrower to or for the
account of any Bank or the Agent hereunder or under any Note
shall be made without deduction for any Taxes or Other Taxes;
provided that, if the Borrower shall be required by law to deduct
any Taxes or Other Taxes from any such payments, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 8.04) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt
evidencing payment thereof.
(c)The Borrower agrees to indemnify each Bank and the
Agent for the full amount of Taxes or Other Taxes (including,
<PAGE>
<PAGE>
without limitation, any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section 8.04)
paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be
paid within 15 days after such Bank or the Agent (as the case may
be) makes demand therefor.
(d)Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Bank remains lawfully able
to do so), shall provide the Borrower with Internal Revenue
Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which
the United States is a party which exempts the Bank from United
States withholding tax or reduces the rate of withholding tax on
payments of interest for the account of such Bank or certifying
that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in
the United States.
(e)For any period with respect to which a Bank
has failed to provide the Borrower with the appropriate form
pursuant to Section 8.04(d) (unless such failure is due to a
change in treaty, law or regulation occurring subsequent to the
date on which such form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section
8.04(b) or (c) with respect to Taxes imposed by the United
States; provided that if a Bank, which is otherwise exempt from
or subject to a reduced rate of withholding tax, becomes subject
to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f)If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 8.04, then such Bank will change the jurisdiction of its
Applicable Lending Office if, in the judgment of such Bank, such
change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any Bank to
make Euro-Dollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section
8.03 or 8.04 with respect to its CD Loans or Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business<PAGE>
<PAGE>
Days' prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the
case may be, shall be made instead as Base Rate Loans
(on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of
the other Banks), and
(b) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid, all
payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests
and other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof,
(y) in the case of any Bank, at its address, facsimile number or
telex number set forth in its Administrative Questionnaire or (z)
in the case of any party, such other address, facsimile number or
telex number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower. Each such notice,
request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is
received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iv) if
given by any other means, when delivered at the address specified
in this Section; provided that notices to the Agent under Article
II or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay
by the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or <PAGE>
<PAGE>
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a)
The Borrower shall pay (i) all out-of-pocket expenses of the
Agent, including reasonable fees and disbursements of special
counsel for the Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder
or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Agent and each Bank,
including (without duplication) the fees and disbursements of
counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Agent
and each Bank, their respective affiliates and the respective
directors, officers, agents and employees of the foregoing (each
an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or
threatened arising out of or significantly related to this
Agreement or any actual or proposed use of proceeds of Loans
hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross negligence
or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to
any Note held by it which is greater than the proportion received
by any other Bank in respect of the aggregate amount of principal
and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with
<PAGE>
respect to the Notes held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other
than its indebtedness hereunder. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise <PAGE>
<PAGE>
rights of set-off or counterclaim and other rights with respect
to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or waived
if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Banks (and, if the rights
or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all
Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for
any reduction or termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or
more banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of its
Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall
provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide
that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii)
of Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted<PAGE>
<PAGE>
by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all, or a
proportionate part (equivalent to an initial Commitment of not
less than $10,000,000) of all, of its rights and obligations
under this Agreement and the Notes, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G
hereto executed by such Assignee and such transferor Bank, with
(and subject to) the subscribed consent of the Borrower, which
shall not be unreasonably withheld, and the Agent; provided that
if an Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment, no such consent shall
be required; and provided further that such assignment may, but
need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In connection
with any such assignment, the transferor Bank shall pay to the
Agent an administrative fee for processing such assignment in the
amount of $2,500. If the Assignee is not incorporated under the
laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other
transferee of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such Bank would
have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section
8.02, 8.03 or 8.04 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a
time when the circumstances giving rise to such greater payment <PAGE>
<PAGE>
did not exist.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of
the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be governed by
and construed in accordance with the laws of the State of New
York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in
New York City for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contemplated
hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in
such a court has been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to
the subject matter hereof. This Agreement shall become effective
upon receipt by the Agent of counterparts hereof signed by each
of the parties hereto (or, in the case of any party as to which
an executed counterpart shall not have been received, receipt by
the Agent in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party of
execution of a counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF
THE BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
CRANE CO.
By /s/ David S. Smith
Title: Vice President - Finance
and Chief Financial
Officer
100 First Stamford Place
Stamford, Connecticut 06902
Telex number:
Facsimile number: <PAGE>
<PAGE>
Commitments
$25,000,000 . . . . . . . . . . . . . . . . . . . .
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Stephen J. Kenneally
Title: Vice President
<PAGE>
<PAGE>
$25,000,000 . . . . . . . . . . . . . . . . . . . . JP MORGAN DELAWARE
. . . . . . . . . . . . . . . . . . . .
By /s/ David J. Morris
. . . . . . . . . . . . . . . . . . . .
Title: Vice President
<PAGE>
<PAGE>
$50,000,000 . . . . . . . . . . . . . . . . . . . .
THE BANK OF NEW YORK
By /s/ David C. Judge
Title: Vice President
<PAGE>
<PAGE>
$25,000,000 . . . . . . . . . . . . . . . . . . . .
THE BOATMEN'S NATIONAL BANK OF . . . . . . . . . . . . .
SAINT LOUIS
By /s/ Kenneth Schult
Title: Vice President
<PAGE>
<PAGE>
$50,000,000 . . . . . . . . . . . . . . . . . . . .
CREDIT SUISSE
By /s/ Lynn Allegaert
Title: Member of Senior Management
By /s/ Demian M. Gage
Title: Associate<PAGE>
<PAGE>
_________________
Total Commitments
$175,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Stephen J. Kenneally
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Mathias Blumschein
Telex number: 177615
Facsimile number: 212-648-5017
<PAGE>
<PAGE>
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for
any day are the respective percentages set forth below in the
applicable row under the column corresponding to the Status that
exists on such day:
Status Level Level Level Level Level
I II III IV V
Euro-Dollar
Margin 0.2250% 0.2500% 0.3000% 0.3750% 0.4375%
CD Margin 0.3500% 0.3750% 0.4250% 0.5000% 0.5625%
Facilty
Fee Rate 0.1500% 0.1750% 0.2000% 0.2500% 0.3250%
For purposes of this Schedule, the following
terms have the following meanings:
"Level I Status" exists at any date if, at such
date, the Borrower's long-term debt is rated A- or higher by S&P
or A3 or higher by Moody's.
"Level II Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB+ by S&P or
Baa1 by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at
such date, (i) the Borrower's long-term debt is rated BBB by S&P
or Baa2 by Moody's and (ii) neither Level I Status nor Level II
Status exists.
"Level IV Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB- by S&P or
Baa3 by Moody's and (ii) none of Level I Status, Level II Status
and Level III Status exists.
<PAGE>
<PAGE>
"Level V Status" exists at any date if, at such
date, no other Status exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Corporation.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule
are those assigned to the senior unsecured long-term debt
securities of the Borrower without third-party credit
enhancement, and any rating assigned to any other debt security
of the Borrower shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date.
<PAGE>
<PAGE>
EXHIBIT A
NOTE
New York, New York
April 26, 1994
For value received, CRANE CO., a Delaware
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on
the last day of the Interest Period relating to such Loan. The
Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided
for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of
Morgan Guaranty Trust Company of New York, 60 Wall Street, New
York, New York.
All Loans made by the Bank, the respective types
and maturities thereof and all repayments of the principal
thereof shall be recorded by the Bank and, if the Bank so elects
in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
<PAGE>
<PAGE>
This note is one of the Notes referred to in the
Credit Agreement dated as of April 26, 1994 among the Borrower,
the banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Agent (as the same may be
amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the
maturity hereof.
CRANE CO.
By________________________
Title:
<PAGE>
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
<PAGE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Crane Co.
Re: Credit Agreement (the "Credit
Agreement") dated as of April 26, 1994
among the Borrower, the Banks listed on
the signature pages thereof and the
Agent
We hereby give notice pursuant to Section 2.03 of the
Credit Agreement that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount
Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London Interbank
Offered Rate.]
* Amount must be $5,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest
Period.
<PAGE>
<PAGE>
Terms used herein have the meanings assigned to them in
the Credit Agreement.
CRANE CO.
By________________________
Title:
<PAGE>
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to
Crane Co. (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated
as of April 26, 1994 among the Borrower, the Banks parties thereto and the
undersigned, as Agent, we are pleased on behalf of the Borrower to invite
you to submit Money Market Quotes to the Borrower for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount
Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London Interbank
Offered Rate.]
Please respond to this invitation by no later than
[4:00 P.M.] [10:00 A.M.] (New York City time) on [date].
MORGAN
GUARANTY TRUST COMPANY
OF NEW
YORK
By______________________
Authorized Officer
<PAGE>
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New
York,
as Agent
Re: Money Market Quote to Crane Co.
(the "Borrower")
In response to your invitation on behalf of the
Borrower dated _____________, 19__, we hereby make the following Money
Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at
the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****]
[Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted shall
not exceed $____________.]**
__________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made
for $5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
<PAGE>
<PAGE>
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions set forth in
the Credit Agreement dated as of April 26, 1994 among the Borrower, the
Banks listed on the signature pages thereof and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________
By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 7 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000
of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
<PAGE>
<PAGE>
OPINION OF
GENERAL COUNSEL OF THE BORROWER
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I have acted as counsel for Crane Co. (the "Borrower")
in connection with the Credit Agreement (the "Credit Agreement") dated as of
April 26, 1994 among the Borrower, the banks listed on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as Agent. Terms
defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the request of my client pursuant to
Section 3.01(b) of the Credit Agreement.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion
that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware, and has
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
<PAGE>
<PAGE>
the Borrower's corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes a valid and
binding obligation of the Borrower, in each case enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and by general
principles of equity.
4. Except as disclosed in the Disclosure Letter, there
is no action, suit or proceeding pending against, or to the best of my
knowledge threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or official, in which there is a reasonable probability of an adverse
decision which would materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Borrower and
its Consolidated Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Credit Agreement or the Notes.
5. Each of the Borrower's Material Subsidiaries is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
Very truly yours,
<PAGE>
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of April 26, 1994 among Crane
Co., a Delaware corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks") and Morgan Guaranty Trust Company of
New York, as Agent (the "Agent"), and have acted as special counsel for the
Agent for the purpose of rendering this opinion pursuant to Section 3.01(c)
of the Credit Agreement. Terms defined in the Credit Agreement are used
herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion
that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action.
<PAGE>
<PAGE>
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes a valid and
binding obligation of the Borrower, in each case enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and by general
principles of equity.
We are members of the Bar of the State of New York and
the foregoing opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation Law
of the State of Delaware. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by you for any
other purpose or relied upon by any other person without our prior written
consent.
Very truly
yours,
<PAGE>
<PAGE>
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR]
(the "Assignor"), [ASSIGNEE] (the "Assignee"), CRANE CO. (the "Borrower")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of April 26, 1994
among the Borrower, the Assignor and the other Banks party thereto, as
Banks, and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans to the Borrower in an aggregate
principal amount at any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the
Assignor under the Credit Agreement in the aggregate principal amount of
$__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Commitment thereunder in an amount equal to
$__________ (the "Assigned Amount"), together with a corresponding portion
of its outstanding Committed Loans, and the Assignee proposes to accept
assignment of such rights and assume the corresponding obligations from the
Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns
and sells to the Assignee all of the rights of the<PAGE>
<PAGE>
Assignor under the Credit Agreement to the extent of the Assigned Amount,
and the Assignee hereby accepts such assignment from the Assignor and
assumes all of the obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase from the Assignor
of the corresponding portion of the principal amount of the Committed Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the Agent
and the payment of the amounts specified in Section 3 required to be paid on
the date hereof (i) the Assignee shall, as of the date hereof, succeed to
the rights and be obligated to perform the obligations of a Bank under the
Credit Agreement with a Commitment in an amount equal to the Assigned
Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the Assignee shall pay
to the Assignor on the date hereof in Federal funds the amount heretofore
agreed between them*.
It is understood that commitment and/or facility fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent of
such other party's interest therein and shall promptly pay the same to such
other party.
*Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropirate case to specifiy these amounts generically or
by formula rather than as a fixed sum.<PAGE>
<PAGE>
[SECTION 4. Consent of the Borrower and the Agent.
This Agreement is conditioned upon the consent of the Borrower and the Agent
pursuant to Section 9.06(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of this consent.
Pursuant to Section 9.06(c) the Borrower agrees to execute and deliver a
Note payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor
makes no representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance on
the Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York.
SECTION 7. Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly authorized officers as
of the date first above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
CRANE CO.
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Title:
<PAGE>
<PAGE>
[CONFORMED COPY]
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT, dated as of May 11, 1994 to the Credit Agreement
dated as of April 26, 1994 (the "Credit Agreement") among Crane Co., the
Banks listed on the signature pages thereof and Morgan Guaranty Trust
Company of New York, as Agent.
W I T N E S S E T H :
WHEREAS, the Borrower and the Banks desire to amend the
Credit Agreement in certain respects; and
WHEREAS, the Borrower and the Banks desire to add an
additional Bank as a party to the Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions, References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement. Each reference therein to "this Agreement", "hereof",
"hereunder", "herein" and "hereby" and each similar reference contained in
the Credit Agreement shall from and after the date hereof refer to the
Credit Agreement as amended hereby.
SECTION 2. Amendment of Section 5.07 of the Credit
Agreement. Section 5.07 of the Credit Agreement is amended by adding the
following proviso at the end thereof:
; provided, however, that if as a result of an acquisition,
Consolidated Debt increases during any fiscal quarter by an
amount of $10,000,000 or more (the fact and amount of such
increase being hereinafter referred to as the "incurrence" of
"Acquisition Debt"), then compliance with this Section shall
be determined as follows for the fiscal quarter in which the
Acquisition Debt was incurred and the three succeeding fiscal
quarters: (i) as of the end of the fiscal quarter during
which the Acquisition Debt was incurred, Consolidated Debt
shall be reduced by the amount of the Acquisition Debt and
Consolidated Cash Flow shall be calculated exclusive of the
cash flow of the related acquisition ("Acquisition Cash
Flow") and (ii) as of the end of each of the three succeeding
fiscal quarters, compliance shall be based on the ratio of
Adjusted Consolidated Cash Flow for the twelve months then
ended to Consolidated Debt at such date. For this purpose,
"Adjusted Consolidated Cash Flow" means Consolidated Cash
Flow, determined exclusive of Acquisition Cash Flow, plus the
annualized Acquisition Cash Flow for the period since the end
of the fiscal quarter during which the Acquisition Debt was
incurred (i.e., as of the end of the first fiscal quarter
following the fiscal quarter during which the Acquisition<PAGE>
<PAGE>
Debt was incurred, the Acquisition Cash Flow for such quarter
multiplied by four; as of the end of the second such fiscal
quarter, the Acquisition Cash Flow for the six months then
ended multiplied by two; and as of the end of the third
fiscal quarter, the Acquisition Cash Flow for the nine months
then ended multiplied by one and one-third).
SECTION 3. Addition of Bank. The signature pages are
amended as follows:
(a) by adding at the end of the column which lists the banks
"The First National Bank of Chicago";
(b) by adding to the column entitled Commitments, opposite
the name of The First National Bank of Chicago, the
commitment amount of "$25,000,000"; and
(c) by deleting the reference to "$175,000,000" under the
caption Total Commitments and substituting in lieu thereof
"$200,000,000".
SECTION 4. Governing Law. This Amendment shall be governed
by and construed in accordance with the law of the State of New York.
SECTION 5. Counterparts; Effectiveness. This Amendment may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Amendment shall become effective as of the date
hereof when the Agent shall have received duly executed counterparts hereof
signed by the Borrower and the Banks (including The First National Bank of
Chicago) (or, in the case of any party as to which an executed counterpart
shall not have been received, the Agent shall have received telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party).
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
CRANE CO.
By: Gil A. Dickoff
Title: Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Stephen J. Kenneally
Title: Vice President
J.P. MORGAN DELAWARE
By /s/ David J Morris
Title: Vice President
THE BANK OF NEW YORK
By /s/ Vincent O'Leary
Title: S.V.P.
THE BOATMEN'S NATIONAL BANK OF
SAINT LOUIS
By /s/ Kenneth Schult
Title: Vice President
CREDIT SUISSE
By /s/ Lynn Allegaert
Title: Member of Senior Management
By /s/ Kristina Catlin
Title: Associate
<PAGE>
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Stephen E. McDonald
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Stephen J. Kenneally
Title: Vice President
