UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended Commission File Number
September 30, 1998 1-8319
GATX CAPITAL CORPORATION
Incorporated in the IRS Employer Identification Number
State of Delaware 94-1661392
Four Embarcadero Center
San Francisco, CA 94111
(415) 955-3200
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No __
All Common Stock of Registrant is held by GATX Financial Services, Inc.
(a wholly-owned subsidiary of GATX Corporation).
As of November 12, 1998, Registrant has outstanding 1,031,250 shares of $1 par
value Common Stock.
THE REGISTRANT MEETS THE CONDITIONS SET FORTH IN GENERAL INSTRUCTION H(1)(a) AND
(b) OF FORM 10-Q AND IS THEREFORE FILING THIS FORM WITH THE REDUCED DISCLOSURE
FORMAT.
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND REINVESTED EARNINGS
(in thousands)
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
------- ------- -------- ---------
(Unaudited) (Unaudited)
REVENUES:
Investment and asset management $ 116,053 $107,350 $352,336 $312,993
Technology equipment sales and service 49,006 43,885 123,087 137,688
-------- ------- -------- ---------
165,059 151,235 475,423 450,681
-------- ------- -------- ---------
EXPENSES:
Interest 28,063 23,335 87,670 67,820
Operating leases 34,763 29,790 101,403 85,757
Cost of technology equipment
sales & service 37,711 37,200 96,295 113,734
Selling, general & administrative 30,073 33,554 87,618 86,234
Provision for losses on investments 3,275 3,506 7,775 9,531
Other 942 4,074 2,430 7,368
-------- -------- -------- ---------
134,827 131,459 383,191 370,444
-------- -------- -------- ---------
Income before income taxes 30,232 19,776 92,232 80,237
Provision for income taxes 12,490 8,013 39,361 32,500
-------- -------- -------- ---------
NET INCOME 17,742 11,763 52,871 47,737
Reinvested earnings at
beginning of period 234,579 209,551 212,750 185,686
Dividends paid to stockholder (9,958) (7,929) (23,258) (20,038)
-------- -------- -------- ---------
REINVESTED EARNINGS AT END OF PERIOD $ 242,363 $ 213,385 $ 242,363 $ 213,385
========= ========= ========== =========
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GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
September 30, December 31,
1998 1997
----------- -----------
(Unaudited)
ASSETS:
Cash and cash equivalents $ 42,512 $ 61,990
Investments:
Direct financing leases 515,587 666,524
Leveraged leases 114,547 170,555
Operating lease equipment-
net of depreciation 496,664 524,523
Secured loans 257,098 180,331
Investment in joint ventures 566,754 549,596
Assets held for sale or lease 21,304 15,398
Other investments 73,833 52,690
Investment in future residuals 19,329 19,693
Allowance for losses on investments (122,880) (121,576)
----------- ------------
Total investments 1,942,236 2,057,734
----------- ------------
Due from GATX Corporation 20,307 35,904
Other assets 146,056 161,515
----------- -----------
TOTAL ASSETS $ 2,151,111 $ 2,317,143
=========== ============
LIABILITIES AND STOCKHOLDER'S EQUITY:
Accrued interest $ 27,089 $ 16,070
Accounts payable and other liabilities 142,897 167,825
Debt financing:
Commercial paper and bankers' acceptances 14,500 127,832
Notes Payable 46,620 74,161
Obligations under capital leases 8,633 9,754
Senior term notes 1,061,600 1,155,600
------------ ----------
Total debt financing 1,131,353 1,367,347
------------ ----------
Nonrecourse obligations 369,950 329,820
Deferred income 10,479 13,556
Deferred income taxes 74,340 55,600
Stockholder's equity:
Convertible preferred stock, par value $1, 125,000 125,000
and additional paid-in capital
Common stock, par value $1, and
additional paid-in capital 28,960 28,960
Reinvested earnings 242,363 212,750
Accumulated other comprehensive income:
Foreign currency translation adjustment (5,510) (4,404)
Unrealized gain on available-for-sale securities 4,190 4,619
------------- ----------
Total accumulated other comprehensive income (1,320) 215
------------- ----------
Total stockholder's equity 395,003 366,925
------------- ----------
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 2,151,111 $ 2,317,143
============= ===========
2
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GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Nine Months Ended
September 30,
1998 1997
---------- ---------
(Unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 52,871 $ 47,737
Reconciliation of net income to net cash flows
provided by operating activities:
Provision for losses on investments 7,775 9,531
Depreciation expense 72,306 56,448
Provision for deferred income taxes (benefits) 20,976 (3,443)
Gain on sale of assets (53,337) (63,792)
Changes in assets and liabilities:
Other assets 13,422 (15,656)
Due from GATX Corporation 15,597 29,771
Accrued interest, accounts payable
and other liabilities (13,909) 8,068
Deferred income (3,077) 756
Other - net (20,733) (3,055)
---------- --------
Net cash flows provided by operating activities 91,891 66,365
---------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in leased equipment, net of
nonrecourse borrowings for leveraged leases (256,756) (438,825)
Loans extended to borrowers (134,782) (28,628)
Other investments (94,662) (110,536)
---------- ---------
Total investments (486,200) (577,989)
---------- ---------
Lease rents received, net of earned income and
leveraged lease nonrecourse debt service 119,517 82,293
Loan principal received 283,623 51,424
Proceeds from sale of assets 144,407 201,931
Joint venture investment recovery, net of earned income 46,406 30,531
----------- ---------
Recovery of investments 593,953 366,179
----------- ---------
Net cash flows provided by (used in)
investing activities 107,753 (211,810)
----------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from nonrecourse obligations 152,651 130,095
Repayment of senior term notes (94,000) (130,000)
Repayment of nonrecourse obligations (112,521) (81,304)
Net (decrease) increase in short-term borrowings (140,873) 285,617
Dividends paid to stockholder (23,258) (20,038)
Other financing activities (1,121) (2,273)
----------- ---------
Net cash flows (used in) provided by financing activities(219,122) 182,097
----------- ---------
Net (decrease) increase in cash and cash equivalents (19,478) 36,652
Cash and cash equivalents at beginning of period 61,990 18,482
----------- ----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 42,512 $ 55,134
========== ==========
3
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements, continued
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998 AND 1997
1. The consolidated balance sheet of GATX Capital Corporation and its
subsidiaries ("the Company") at December 31, 1997 was derived from the
audited financial statements at that date. All other consolidated financial
statements are unaudited and include all adjustments, consisting only of
normal recurring items, which management considers necessary for a fair
statement of the consolidated results of operations and financial position
for and as of the end of the indicated periods. Operating results for the
nine-month period ended September 30, 1998 are not necessarily indicative
of the results that may be achieved for the entire year.
2. Certain prior year amounts have been reclassified to conform to
current presentation.
3. The Company is engaged in various matters of litigation and has unresolved
claims pending. In one matter, the Company, through an affiliate, is the
subject of both litigation and unasserted claims related to the conversion
of certain aircraft from passenger to freighter configuration. While the
amounts claimed in this matter and other matters are substantial, the
ultimate liability with respect to such claims cannot be determined at this
time. It is the opinion of management that damages, if any, required to be
paid by the Company in the discharge of such matters are not likely to be
material to the Company's financial position or results of operations.
4. As of January 1, 1998, the Company adopted Statement 130, Reporting
Comprehensive Income. Statement 130 establishes new rules for the reporting
and display of comprehensive income and its components; however, the
adoption of this Statement had no impact on the Company's net income or
stockholder's equity. Statement 130 requires unrealized gains or losses on
the Company's available-for-sale securities and foreign currency
translation adjustments, which prior to adoption were reported separately
in stockholder's equity, to be included in other comprehensive income.
Prior year financial statements have been reclassified to conform to the
requirements of Statement 130.
During the nine months ended September 30, 1998 and September 30, 1997,
respectively, total comprehensive income amounted to $51.3 million and
$46.2 million.
5. In June 1998, the Financial Accounting Standards Board issued Statement No.
133, Accounting for Derivative Instruments and Hedging Activities, which is
required to be adopted in years beginning after June 15, 1999. The Company
has not yet determined what effect the adoption of SFAS No. 133 will have
on its financial position and results of operations.
4
<PAGE>
PART I. FINANCIAL INFORMATION, continued
Item 2. Management's Discussion and Analysis
RESULTS OF OPERATIONS
Net income during the nine months ended September 30, 1998 was $52.9
million compared to $47.7 million during the same period in 1997. Income from
investments was greater during 1998, mainly due to larger average investment
balances. This increase in investment income was partially offset by a decrease
in income from the Company's technology equipment sales and service activities.
Net income earned during the three months ended September 30, 1998 was $17.7
million compared to $11.8 million in the third quarter of 1997. This increase in
income is primarily due to one-time expenses incurred by the Company in
connection with two significant events in the third quarter of 1997: the
acquisition of the 20% of Sun Financial Group, Inc. not already owned by the
Company and the purchase of a portfolio of leased assets owned by Pitney Bowes
Credit Corporation. Increases in revenue related to the remarketing of assets
and in gross margins on technology equipment sales and services also contributed
to this increase.
Overview
- --------
The Company engages in two main activities: (1) it is actively involved in
asset-based investment and generates income by financing equipment (through
lease, loan and joint venture investments); by remarketing assets; by managing
the equipment related investment portfolios of others; and by brokering or
arranging asset financing transactions, all of which are intertwined and (2) it
provides a wide range of technology services enabling its customers to acquire,
construct and finance information networks. Sales and service revenue related to
the Company's technology solutions business is included in technology equipment
sales and service revenue. Revenue earned from financing related to technology
solutions is included in the investment and asset management revenue line.
Revenues
- --------
Investment and asset management revenue increased $8.7 million and $39.3 million
during the three and nine-month periods ended September 30, 1998, respectively,
compared to the same periods in 1997. Revenue generated from higher average
investment balances during 1998 was the most significant contributor to these
increases. Total average investments were approximately $236.7 million (13%)
greater during the nine months ended September 30, 1998 than during the same
period in 1997.
Asset remarketing income, a component of investment and asset management
revenue, includes gains on sales of Company owned assets and fee income
(including residual shares) generated from providing remarketing services to
third parties, including the equipment related investment portfolios managed by
the Company. Asset remarketing income was a significant contributor to income in
both the first nine months of 1998 ($76.1 million) and the first nine months of
1997 ($76.8 million). Although it has historically been a significant
contributor to income, income from asset remarketing opportunities, which are
realized at lease end or in response to specific market conditions, can
fluctuate significantly depending on market conditions.
Technology equipment sales and service revenue was $5.1 million higher during
the quarter than during the third quarter of 1997 and $14.6 million lower during
the first nine months of 1998 than during the first nine months of 1997.
Although revenues were lower during the first three quarters of 1998, gross
margins improved since the decrease in revenues was more than offset by a
decrease in cost of technology equipment sales and service. The information
technology business, particularly the market for communications network
technology, is experiencing and will continue to experience a rapid pace of
change which may have a significant effect on the demand for products and the
gross margins earned on sales of products. During 1998 the Company's technology
equipment sales and service activities have been adversely affected by the
decline in demand for IBM legacy network protocol equipment. While the Company's
5
<PAGE>
strategy includes adding products for a broader range of network protocols, much
of its historical sales base was in these IBM related products. Consistent with
its strategy, beginning with the second quarter of 1998, the Company broadened
its product line by becoming a value added reseller for the products of Cisco
Systems, Inc., the world's leading supplier of internet related communications
technology equipment. Sales of Cisco products did not have a significant impact
on gross margins during the quarter.
Expenses
- --------
Higher average borrowings (to fund new investments) resulted in interest expense
being higher than last year. Continued growth in the Company's operating lease
portfolio resulted in an increase in operating lease expense, which includes
depreciation expense and rent expense related to off-balance sheet financing.
Selling, general and administrative expenses were lower during the third quarter
of 1998 than during the third quarter of 1997 primarily due to one-time expenses
incurred during the third quarter of 1997 related to the acquisition of the 20%
of Sun Financial Group, Inc. not already owned by the Company and the purchase
of a portfolio of leased assets owned by Pitney Bowes Credit Corporation.
Selling, general and administrative expenses were higher during the first nine
months of 1998 due primarily to higher human resource and other administrative
expenses associated with 1) increased investment and asset management business
activity and 2) costs incurred to support a technology equipment sales and
service infrastructure that was larger during 1998 than during 1997. During the
third quarter the Company continued its effort to more closely align the size
and nature of the technology equipment sales and service infrastructure with
current market conditions by reducing costs.
The allowance for losses increased $1.3 million during the first nine months of
1998 as a result of a $7.8 million provision for losses, write-offs of $7.2
million and $0.7 million of recoveries of previously written off investments. At
September 30, 1998, the allowance for losses is 6.3% of investments, including
off-balance sheet assets and after deducting nonrecourse debt.
LIQUIDITY AND CAPITAL RESOURCES
The Company generates cash from operations and from portfolio proceeds and has
certain facilities for borrowing. In addition, certain lease transactions are
financed by obtaining nonrecourse loans equal to the present value of some or
all of the rental streams.
At September 30, 1998 the Company had borrowing capacity consisting of $182.0
million remaining under its Series E shelf registration and $285.5 million of
unused capacity under its commercial paper and bankers' acceptances credit
agreements. Two of the Company's subsidiaries also maintain various stand-alone
bank facilities.
During the first quarter of 1998 the Company placed the proceeds from certain
asset sales (approximately $55.1 million) in trust with qualified intermediaries
pending the identification and acquisition of qualified replacement assets in
order to effect like-kind exchanges for federal income tax purposes. At
September 30, 1998 approximately $18.2 million remains in trust and is
classified as cash and cash equivalents in the accompanying balance sheet.
Also during the first quarter of 1998 the Company financed the sale of
approximately $173.3 million of direct financing leases resulting in a
recharacterization of the Company's investment as secured loans. The loans were
repaid during the third quarter of 1998, providing a significant amount of
portfolio proceeds which the Company used primarily to repay outstanding
short-term borrowings.
6
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The Company's capital structure includes both fixed and floating rate debt.
The Company ensures a stable margin over its cost of funds by approximately
matching its fixed and floating rate investments to its fixed and floating rate
borrowings.
At September 30, 1998, the Company had approved unfunded transactions totaling
approximately $876.0 million, including approximately $155.0 million expected to
fund during the remainder of 1998. Once approved for funding, a transaction may
not be completed for various reasons, or the investment may be shared with
partners or sold.
YEAR 2000 READINESS
The Company continues to address what is commonly referred to as the Year 2000
problem. The Company has completed an assessment of its critical information
systems and is modifying and replacing its in-house developed software as well
as upgrading its vendor-supported software so that its computer systems will
function properly with respect to dates in the year 2000 and thereafter.
Additionally, other less critical information systems have been reviewed and
corrective action is being taken where indicated.
The Company also is reviewing its operating assets to determine any exposure to
time-sensitive controls which may be embedded in the equipment. These situations
are being assessed on an ongoing basis and replacement or remediation is being
undertaken where indicated.
The Company is inquiring of both customers and vendors where the Company's
information systems interface directly with third parties to ensure that the
interfaces and the third party systems are or will be Year 2000 compliant. Where
considered appropriate, the Company is working directly with such third parties
to test or remediate such systems. The Company also interacts electronically
with certain external entities but has no means of ensuring that they will be
Year 2000 ready. Additionally, the Company has been inquiring of key vendors in
an effort to establish the ability of the provider to deliver product or
services on a timely basis in the year 2000.
The Company believes it has an effective program in place to resolve the Year
2000 issue in a timely manner and to minimize the Company's exposure. If these
steps were not taken, or are not completed timely, the Year 2000 issue could
have a significant impact on the operations of the Company. The project is
estimated to be completed during 1999, which is prior to any anticipated impact
on its operating systems. Based on the progress and results of the Year 2000
project thus far, the Company believes that the Year 2000 issue should not pose
significant operational problems. Despite such belief, the Company is preparing
a contingency plan to address circumstances arising as a result of unknown or
unforeseeable system or other failures related to the Year 2000 issue. The total
Year 2000 project cost is estimated to be immaterial to the Company's results of
operations.
FORWARD LOOKING STATEMENTS
Certain statements in the Management's Discussion and Analysis constitute
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Although the
Company believes that the expectations reflected in such forward-looking
statements are based on reasonable assumptions, such statements are subject to
risks and uncertainties, and could cause actual results to differ materially
from those projected.
7
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PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
4. Amended and Restated Credit Agreement dated as of July 1, 1998 between
the Company, the Lenders listed on the signature pages thereto, and the
Chase Manhattan Bank, as administrative agent.
27. Financial Data Schedule
(b) The Company filed no reports on Form 8-K during the three months ended
September 30, 1998.
Signatures
- -----------
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.
GATX CAPITAL CORPORATION
/s/ Jack Jenkins-Stark
-----------------------
Jack Jenkins-Stark
Senior Vice President - Finance
/s/ Delphine M. Regalia
------------------------
Delphine M. Regalia
Vice President and Controller
November 16, 1998
8
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[Execution Copy]
30766-002-00
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
July 1, 1998
between
GATX CAPITAL CORPORATION
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$300,000,000
================================================================================
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..............................................1
SECTION 1.02. Classification of Loans and Borrowings....................15
SECTION 1.03. Terms Generally...........................................16
SECTION 1.04. Accounting Terms; GAAP....................................16
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments...........................................17
SECTION 2.02. Loans and Borrowings......................................17
SECTION 2.03. Requests for Revolving Borrowings.........................18
SECTION 2.04. Competitive Bid Procedure.................................19
SECTION 2.05. Funding of Borrowings.....................................21
SECTION 2.06. Interest Elections........................................22
SECTION 2.07. Termination, Reduction and Extension of Commitments.......23
SECTION 2.08. Repayment of Loans; Evidence of Debt......................26
SECTION 2.09. Prepayment of Loans.......................................27
SECTION 2.10. Fees......................................................28
SECTION 2.11. Interest..................................................29
SECTION 2.12. Alternate Rate of Interest................................30
SECTION 2.13. Increased Costs...........................................30
SECTION 2.14. Break Funding Payments....................................32
SECTION 2.15. Taxes.....................................................32
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
..........................................................33
SECTION 2.17. Mitigation Obligations; Replacement of Lenders............35
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Corporate Existence........................................36
SECTION 3.02 Financial Condition........................................37
SECTION 3.03 Litigation.................................................37
SECTION 3.04 No Breach..................................................37
SECTION 3.05 Action.....................................................37
SECTION 3.06 Approvals..................................................38
SECTION 3.07 Use of Credit..............................................38
SECTION 3.08 ERISA......................................................38
SECTION 3.09 Taxes......................................................39
SECTION 3.10 Investment Company Act.....................................39
SECTION 3.11 Public Utility Holding Company Act.........................39
SECTION 3.12 Pari Passu Status..........................................39
SECTION 3.13 Subsidiaries...............................................39
SECTION 3.14 Compliance.................................................40
SECTION 3.15 Partnerships...............................................40
SECTION 3.16 True and Complete Disclosure...............................40
SECTION 3.17 Year 2000 Issues...........................................40
SECTION 3.18 Properties.................................................41
ARTICLE IV
CONDITIONS
SECTION 4.01 Effective Date.............................................41
SECTION 4.02 Initial and Subsequent Loans...............................43
ARTICLE V
COVENANTS
SECTION 5.01 Financial Statements and Other Information.................43
SECTION 5.02 Litigation.................................................46
SECTION 5.03 Existence, Etc.............................................46
SECTION 5.04 Insurance..................................................47
SECTION 5.05 Net Worth..................................................47
SECTION 5.06 Certain Financial Covenants................................48
SECTION 5.07 Commercial Paper; The Loans................................48
SECTION 5.08 Dividend Limitation........................................49
SECTION 5.09 Liens and Secured Indebtedness.............................49
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<PAGE>
SECTION 5.10 Transactions with Affiliates...............................51
SECTION 5.11 Use of Proceeds............................................51
SECTION 5.12 Location of Records........................................51
SECTION 5.13 Business...................................................51
SECTION 5.14 Performance of Obligations.................................51
SECTION 5.15 Merger; Sale of Assets, Etc................................51
SECTION 5.16 Restrictive Agreements.....................................52
ARTICLE VI
EVENTS OF DEFAULT..............................53
ARTICLE VII
THE ADMINISTRATIVE AGENT..........................56
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices...................................................58
SECTION 8.02. Waivers; Amendments.......................................59
SECTION 8.03. Expenses; Indemnity; Damage Waiver........................60
SECTION 8.04. Successors and Assigns....................................62
SECTION 8.05. Survival..................................................64
SECTION 8.06. Counterparts; Integration; Effectiveness..................65
SECTION 8.07. Severability..............................................65
SECTION 8.08. Right of Setoff...........................................65
SECTION 8.09. Governing Law; Jurisdiction; Etc..........................65
SECTION 8.10. WAIVER OF JURY TRIAL......................................66
SECTION 8.11. Headings..................................................66
SECTION 8.12. Treatment of Certain Information; Confidentiality.........67
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SCHEDULE I - Commitments
SCHEDULE II - Litigation
SCHEDULE III - Subsidiaries and Partnerships
SCHEDULE IV - Existing Restrictions
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Note
EXHIBIT C - Form of Opinion of Counsel to the Borrower
EXHIBIT D - Form of Opinion of Special New York Counsel to Chase
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<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 1,
1998, among GATX CAPITAL CORPORATION, the LENDERS party hereto, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The Borrower (as defined herein) has requested that the
Lenders (as so defined) make loans to it in an aggregate principal amount not
exceeding $300,000,000 at any one time outstanding. The Lenders are prepared to
make such loans upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
. As used in this Agreement, the following terms have the following meanings
(all terms defined in this Section 1.01 or in other provisions of this Agreement
in the singular to have the same meanings when used in the plural and vice
versa):
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Revolving Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Borrower. As
used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
<PAGE>
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Person that owns directly or indirectly securities having 20% or more of the
voting power for the election of directors or other governing body of a
corporation or 20% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Borrower or any of its
Subsidiaries and (b) none of the Subsidiaries of the Borrower or Partnerships
shall be Affiliates.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to the
facility fees payable hereunder, or with respect to any Eurodollar Revolving
Loan, as the case may be, the applicable rate per annum set forth below under
the caption "Facility Fee" or "Eurodollar Spread", as the case may be, based on
the ratings by S&P and Moody's, respectively, applicable on such day to the
Index Debt:
- --------------------------------------------- -------------------------------- -
Facility Eurodollar
Index Debt rating: S&P/Moody's Fee Spread
- -------------------------------------------------------- ------- ---------
- -------------------------------------------------------- ------- ---------
Ratings equal to A-/A3 or above ........................ .1000% .1750
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
Ratings equal to BBB+/Baa1 or equal to A- .............. .1250% .2000%
(or greater than A-)/ Baa1 or equal to
BBB+/A3 (or greater than A3)
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
Ratings equal to BBB+/Baa2 or equal to ................. .1250% .2500%
BBB/Baa1
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
<PAGE>
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Ratings equal to BBB/Baa2 or equal to .................. .1250% .3750%
BBB+/Baa3 or equal to BBB-/Baa1
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
Ratings equal to BBB/Baa3 or equal to .................. .1250% .5000%
BBB-/Baa2
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
Ratings equal to BBB-/Baa3 ............................. .2500% .6250%
- -------------------------------------------------------- ----- -----
- -------------------------------------------------------- ----- -----
Either rating lower than BBB-/Baa3 or not .............. .5000% .7500%
rated by both Moody's and S&P
- -------------------------------------------------------- ----- -----
For purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in its lowest
rating category and (ii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall be changed (other than
as a result of a change in the rating system of Moody's or S&P), such change
shall be effective as of two Business Days after it is first announced by the
applicable rating agency. Each change in the Applicable Rate shall apply during
the period commencing two Business Days after the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of Moody's or S&P shall change, or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
<PAGE>
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 8.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date of termination of the Commitments.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978,
as amended from time to time.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means GATX Capital Corporation, a Delaware
corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board), and,
<PAGE>
-5-
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Cash Flow" means, for any period, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (i) net income, (ii) income taxes,
(iii) after tax non-cash write-off of assets, and (iv) Fixed Charges.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of shares representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
for the period of 12 consecutive calendar months, a majority of the Board of
Directors of the Borrower shall no longer be composed of individuals (i) who
were members of said Board on the first day of such period, (ii) whose election
or nomination to said Board was approved by individuals referred to in clause
(i) above constituting at the time of such election or nomination at least a
majority of said Board or (iii) whose election or nomination to said Board was
approved by individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of said Board.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Loans.
"Closing Date" means July 1, 1998.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
<PAGE>
-6-
"Commercial Paper" means promissory notes of the Borrower or a
Subsidiary of the Borrower which mature on a date not more than 270 days from
the date of issue and which do not evidence loans made directly to the Borrower
or such Subsidiary by banking institutions.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 8.04. The
initial amount of each Lender's Commitment is set forth on Schedule I, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $300,000,000.
"Commitment Termination Date" means the Quarterly Date falling
on or nearest to July 1, 2001, subject to extension in accordance with Section
2.07(e).
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Default Interest" has the meaning ascribed to such term in
Section 2.11 (d).
"Dividend Payment" means dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
<PAGE>
-7-
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower or any of its Subsidiaries), but
excluding dividends payable solely in shares of common stock of the Borrower.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
8.02).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
that is a member of any group of organizations described in Section 414(b) or
(c) of the Code of which the Borrower is a member.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VI.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.15(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
<PAGE>
-8-
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fixed Charge Coverage Ratio" means, for any day, the ratio of
(i) Cash Flow for the period of four consecutive fiscal quarters of the Borrower
ending on or most recently ended prior to such day to (ii) Fixed Charges for
such period.
"Fixed Charges" means, the sum, for any period for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (i) Interest Expense
plus (ii) estimate of minimum rents under operating leases representing the
interest factor.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Hedging Agreement" means for any Person, an interest rate
swap, cap or collar agreement or similar arrangement between such Person and one
<PAGE>
-9-
or more financial institutions providing for the transfer or mitigation of
interest risks either generally or under specific contingencies.
"Indebtedness" of any Person means, (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (c) Indebtedness of others secured
by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) any guarantee or other
arrangement by which such Person guarantees or is otherwise liable for the
Indebtedness of others; provided, however, that "Indebtedness" shall not include
(x) Secured Nonrecourse Obligations and (y) nonrecourse obligations incurred in
connection with leveraged lease transactions as determined in accordance with
generally accepted accounting principles.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any credit enhancement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
"Interest Payment Date" means (a) with respect to any ABR
Loan, each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest Period
<PAGE>
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that occurs at intervals of three months' duration after the first day of such
Interest Period and (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Jones
Markets (Telerate) Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for the
offering of Dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the LIBO Rate with respect to such Eurodollar Borrowing for such Interest Period
<PAGE>
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shall be the arithmetic average of the rates (rounded upwards, if necessary, to
the next 1/16 of 1%) at which Dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
Chase in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that 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 (other than an operating lease)
relating to such Property.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Majority Owned Subsidiary" means any Subsidiary of GATX
Financial Services, Inc., a Delaware Corporation, or GATX Corporation, a New
York Corporation, as the context may require.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of
Regulations U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its obligations hereunder, (c)
the validity or enforceability of this Agreement, (d) the rights and remedies of
the Lenders and the Administrative Agent hereunder or (e) the timely payment of
the principal of or interest on the Loans or other amounts payable in connection
therewith.
"Moody's" means Moody's Investors Service, Inc. and its
successors and assigns provided that if such corporation (or its successors and
assigns) shall for any reason no longer perform the functions of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency approved for purposes hereof by all of the
Lenders and the Borrower.
<PAGE>
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"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Worth" has the meaning assigned to such term in Section
5.05.
"Note" has the meaning assigned to such term in Section
2.08(f).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Partnership" means a partnership of which the Borrower or any
of its Subsidiaries is a general partner.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at the
Principal Office; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Office" means the principal office of Chase,
located on the date hereof at 270 Park Avenue New York, New York 10017.
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" means the last day of March, June, September
and December in each year, the first of which shall be the first such day after
the date hereof; provided that if any such day is not a Business Day, then such
Quarterly Date shall be the next succeeding Business Day (unless such succeeding
<PAGE>
-13-
Business Day falls in a subsequent calendar month, in which event such Quarterly
Date shall be the next preceding Business Day).
"Register" has the meaning set forth in Section 8.04.
"Regulations D, U and X" means, respectively, Regulations D, U
and X of the Board (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time, provided that if the Commitments shall have been terminated, then Lenders
holding more than 50% of the aggregate principal amount of the Loans
outstanding.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the aggregate outstanding principal amount of such Lender's
Revolving Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Secured Indebtedness" means indebtedness, other than Secured
Nonrecourse Obligations, which is created, incurred or assumed by the Borrower
or a Subsidiary of the Borrower and which is secured by, or which upon the
happening of a specified event may be secured by, a mortgage, lien, pledge,
charge, security interest or encumbrance of any kind upon property or assets of
the Borrower or a Subsidiary of the Borrower; excluding, however, nonrecourse
obligations incurred in connection with leveraged lease transactions as
determined in accordance with generally accepted accounting principles.
"Secured Nonrecourse Obligations" means and includes (i)
secured obligations of the Borrower taken on a consolidated basis where recourse
of the payee of such obligations is expressly limited to an assigned lease or
loan receivable and the property related thereto, (ii) debt of Single
Transaction Subsidiaries and (iii) liabilities of the Borrower taken on a
consolidated basis to manufacturers of leased equipment where such liabilities
are payable solely out of revenues derived from the leasing or sale of such
equipment; excluding, however, nonrecourse obligations incurred in connection
with leveraged lease transactions as determined in accordance with generally
accepted accounting principles.
<PAGE>
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"Senior Liabilities" means the sum of (i) the total
liabilities of the Borrower taken on a consolidated basis as set forth in the
financial statements furnished by the Borrower pursuant to Section 5.01 hereof
(excluding preferred stock, deferred investment tax credit income, deferred
income taxes, deferred income, Secured Nonrecourse Obligations, nonrecourse
obligations incurred in connection with leveraged lease transactions,
obligations of an entity (other than a Subsidiary) in which the Borrower is an
investor, the principal amount of Subordinated Indebtedness and accrued interest
and other payables), and (ii) guarantees of indebtedness for borrowed money.
"Single Transaction Subsidiary" means any Subsidiary of the
Borrower whose assets consist solely of financing transactions and the proceeds
thereof with a single obligor where the obligations of such Subsidiary are not
guaranteed by the Borrower or any other Subsidiary of the Borrower and for which
neither the Borrower nor such other Subsidiary is liable.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc. and its successor and assigns; provided that if such
corporation (or its successors and assigns) shall for any reason no longer
perform the functions of a securities rating agency, "S&P" shall be deemed to
refer to any other nationally recognized securities rating agency approved for
purposes hereof by all of the Lenders and the Borrower.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in Dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such statutory reserve rates without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Indebtedness" means indebtedness for which the
Borrower is liable which is subordinated to the obligations of the Borrower to
pay principal of and interest on the Loans and Notes hereunder on terms, and
pursuant to documentation containing other terms (including interest,
<PAGE>
-15-
amortization, covenants and events of default), in form and substance
satisfactory to the Required Lenders.
"Subsidiary" means, for any Person, any corporation (a) of
which more than 50% of the issued and outstanding shares of stock of each class
having ordinary voting power is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person or (b) the financial
statements of which shall be (or should be) consolidated with the financial
statements of such Person in accordance with GAAP.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Assets" means the total assets of the Borrower taken on
a consolidated basis without deduction for deferred investment tax credit
income, but net of Secured Nonrecourse Obligations.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by
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Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally
The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof and
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement.
SECTION 1.04. Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring in GAAP after the date hereof or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
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ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
Subject to the terms and conditions set forth herein, each Lender agrees to
make Revolving Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Commitment or (b) the
sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans exceeding the total Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Revolving Loan shall be made
as part of a Borrowing consisting of Loans of the same Type made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.12, (i) each Revolving
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive Borrowing
shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At
the commencement of each Interest Period for any Eurodollar Revolving Borrowing,
such Borrowing shall be in an aggregate amount of $5,000,000 or a larger
multiple of $1,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger
multiple of $1,000,000 provided that an ABR Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments. Each
Competitive Borrowing shall be in an aggregate amount equal to $5,000,000 or a
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larger multiple of $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Commitment Termination Date.
SECTION 2.03. Requests for Revolving Borrowings
To request a Revolving Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Revolving
Borrowing, not later than 12:00 noon., New York City time, three Business Days
before the date of the proposed Borrowing, or (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any Eurodollar Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
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SECTION 2.04. Competitive Bid Procedure.
(a) Requests for Bids by the Borrower. Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 1:00 p.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 1:00 p.m., New York City time, one Business
Day before the date of the proposed Borrowing; provided that the Borrower may
submit up to (but not more than) three Competitive Bid Requests on the same day,
but a Competitive Bid Request shall not be made within five Business Days after
the date of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Competitive Bid Request, as provided in accordance with Section 8.01,
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
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(b) Making of Bids by Lenders. Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing (setting forth the Margin
to be applicable to the respective Eurodollar Competitive Loan), and in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing (setting forth the interest rate to
be applicable to such Fixed Rate Borrower). Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender of such rejection as promptly as practicable. Each Competitive
Bid shall specify (i) the principal amount (which shall be $5,000,000 or a
larger multiple of $1,000,000 and which may equal the entire principal amount of
the Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid
and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Borrower. Subject only to the
provisions of this paragraph, the Borrower may accept or reject any Competitive
Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed
by telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of a
Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided, that (i) the
failure of the Borrower to give such notice shall be deemed to be a rejection of
each Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the aggregate amount
of the requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) of this
proviso, the Borrower may accept Competitive Bids at the same Competitive Bid
Rate in part, which acceptance, in the case of multiple Competitive Bids at such
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Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid, and (v) except pursuant to clause (iv) of this
proviso, no Competitive Bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a principal amount of $5,000,000 or a larger multiple of
$1,000,000; provided further that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) of the first
proviso of this paragraph, such Competitive Loan may be in an amount of
$1,000,000 or any multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to such clause (iv) the amounts shall be rounded
to multiples of $1,000,000 in a manner determined by the Borrower. A notice
given by the Borrower pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent.
The Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the Borrower at least one quarter
of an hour earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) of this Section.
SECTION 2.05. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with Chase at the Principal Office and
designated by the Borrower in the applicable Borrowing Request or Competitive
Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
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available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections.
(a) Elections by the Borrower for Revolving Borrowings. Each
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of Eurodollar Revolving Borrowing, shall have
an initial Interest Period as specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by the Borrower.
(c) Information in Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) of this paragraph shall
be specified for each resulting Borrowing);
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(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely Interest Election Request with respect to a Eurodollar
Revolving Borrowing prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Revolving Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Revolving Borrowing and (ii) unless repaid, each
Eurodollar Revolving Borrowing shall be converted to an ABR Revolving Borrowing
at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination, Reduction and Extension of
Commitments.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $20,000,000
or a larger multiple of $5,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.09, the sum of the total Revolving Credit
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Exposures plus the aggregate principal amount of outstanding Competitive Loans
would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
(e) Extension of Commitments (i) The Borrower may, by notice
to the Lenders (through the Administrative Agent) not later than 60 days prior
to any Quarterly Date (a "Renewal Date") but not earlier than 90 days before
such Renewal Date, request that the Lenders extend the Commitment Termination
Date then in effect with respect to the Commitments to the twelfth Quarterly
Date following such Renewal Date, and, subject to Section 2.07(e)(iii) hereof,
if Lenders having Commitments totaling an amount equal to at least 85% of the
aggregate amount of the Commitments then in effect agree to such extension by
notice to the Administrative Agent before the day thirty days prior to such
Renewal Date, then the Commitment Termination Date shall be extended to such
twelfth Quarterly Date with respect to the Commitments of the Lenders so
agreeing, and (B), subject to Section 2.07(f) hereof, the Commitment of each
Lender not so agreeing shall terminate on such Renewal Date and the Borrower
shall pay or prepay on such day without premium or penalty (including, without
limitation, amounts payable pursuant to Section 2.14 hereof) all principal of
such Lender's Loans together with accrued interest thereon and all accrued
commitment fee, utilization fee and other amounts payable to such Lender
hereunder; provided, however, that
(x) if Lenders having Commitments totaling an amount
equal to at least 85% of the aggregate amount of the Commitments then
in effect do not agree as contemplated by Section 2.07(e)(i), then the
Commitment Termination Date shall not be extended pursuant to this
Section 2.07(e) and the Commitments of all of the Lenders shall remain
in effect until the Commitment Termination Date except as otherwise
provided in this Agreement; and
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(y) the Borrower may not request any extension of the
Commitment Termination Date pursuant to this Section 2.07(e)(i) more
frequently than once in any calendar year.
(ii) Any Loan by any Lender the Commitment of which is to
terminate pursuant to Section 2.07(e)(i) hereof that would otherwise be made or
converted by such Lender as a Eurodollar Loan having an Interest Period ending
after the date such Commitment is to terminate shall be made or continued as an
ABR Loan and all ABR Loans of such Lender that would otherwise be converted into
Eurodollar Loans having such Interest Periods shall remain as ABR Loans. The
decision of each Lender as to whether to extend the Commitment Termination Date
with respect to its Commitment shall be in its sole and absolute discretion.
(iii) It shall be a condition precedent to any extension of
the Commitment Termination Date that: (a) on the date of such extension no
Default shall have occurred and be continuing; (b) the representations and
warranties made by the Borrower in Article III shall be true and complete on and
as of the date of such extension (or if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date); and (c) on the date of such extension there shall have been no material
adverse change in the consolidated financial condition, operations, business or
prospects taken as a whole of the Borrower and its Subsidiaries from that set
forth in its financial statements as of December 31, 1997 referred to in Section
3.04(a) hereof or, if the Borrower has delivered its financial statements for
any fiscal year to the Lenders and the Administrative Agent pursuant to Section
5.01(a) hereof, as of the date of the most recent such financial statements.
Each request for an extension of the Commitment Termination Date pursuant to
Section 2.07(e) shall constitute a certification by the Borrower to the effect
set forth in the preceding sentence (both as of the date of such request and,
unless the Borrower notifies the Administrative Agent prior to the date of such
extension, as of the date of such extension).
(f) In the event any Lender does not agree to any extension by
the date provided pursuant to Section 2.07(e) hereof, then, unless a Default
shall have occurred and be continuing, the Borrower may designate one or more
other banks (each such bank being herein called a "Substitute Lender"), which
may include any of the Lenders, acceptable to the Administrative Agent (which
acceptance will not be unreasonably withheld), to assume such non-consenting
Lender's Commitment hereunder and to purchase, on or before the date such
Lender's Loans would otherwise be required to be paid or prepaid hereunder, the
Loans and Notes of such Lender and such Lender's rights hereunder in respect
thereof, without recourse to or representation or warranty by, or expense to,
such Lender for a purchase price equal to the outstanding principal amount of
the Loans and Notes payable to such Lender plus any accrued but unpaid interest
on such Loans and Notes and accrued but unpaid facility fee and utilization fee
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in respect of such Lender's Commitment, and upon such assumption and purchase
and the receipt by such Lender of any other amounts payable to it by the
Borrower under this Agreement, and subject to the execution and delivery to the
Administrative Agent and such Lender by the Substitute Lenders of documentation
reasonably satisfactory to the Administrative Agent and such Lender pursuant to
which such Substitute Lenders shall assume the obligations of such original
Lender under this Agreement in respect of its Loans, Notes and Commitment and
agree to become "Lenders" hereunder (if not already a Lender) to the extent of
the Commitments, Loans and Notes assumed and purchased, the Substitute Lenders
shall succeed to the rights, obligations and benefits of such Lender hereunder
in such respect (except for such rights, obligations and benefits of the Lender
as have accrued (other than principal, accrued interest, facility fees or
utilization fees) or are required to be performed by it on or prior to the date
of such assumption and purchase) (and such Lender shall be released from its
Commitment except for any liability arising or relating to any event occurring
prior to the date of such assumption and purchase) and the Substitute Lenders
shall be deemed to have agreed to the relevant extension of the Commitment
Termination Date and, anything in Section 2.07(e) to the contrary
notwithstanding, whether such extension is effective shall be determined
accordingly; provided that following any such assumption and purchase the
Commitments of each Substitute Lender (including any Commitments theretofore
held by it) shall be not less than $5,000,000.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to
pay the Loans as follows:
(i) to the Administrative Agent for account of the
Lenders the outstanding principal amount of the Revolving Loans on the
Maturity Date, and
(ii) to the Administrative Agent for account of the
respective Lender the then unpaid principal amount of each Competitive
Loan of such Lender on the last day of the Interest Period applicable
to such Loan.
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 12:00 noon, New York City time, three
Business Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
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Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first), and for these purposes, Competitive Loans shall be deemed to be in the
same Class as Revolving Loans. Each payment of a Revolving Borrowing shall be
applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Administrative Agent.
The Administrative Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(f) Notes. Any Lender may request that Loans made by it be
evidenced by a promissory note (each a "Note") in substantially the form of
Exhibit B. In such event, the Borrower shall prepare, execute and deliver to
such Lender a Note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after assignment pursuant to Section 8.04)
be represented by one or more Notes in such form payable to the order of the
payee named therein (or, if such Note is a registered note, to such payee and
its registered assigns).
SECTION 2.09. Prepayment of Loans.
(a) Optional Prepayments Right to Prepay Borrowings. The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) Notices, Etc. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any optional prepayment hereunder
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(i) in the case of prepayment of a Eurodollar Revolving Borrowing or Competitive
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment, or (ii) in the case of prepayment of an ABR
Revolving Borrowing, not later than 12:00 noon, New York City time, one Business
Day before the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Revolving Borrowing or
Competitive Borrowing, the Administrative Agent shall advise the relevant
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of a Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.11
and shall be made in the manner specified in Section 2.08(b).
SECTION 2.10. Fees.
(a) Facility Fee The Borrower shall pay the Administrative
Agent for account of each Lender a facility fee on the daily average amount of
such Lender's Commitment (whether or not utilized), for the period from and
including the date hereof to but excluding the earlier of the date such
Commitment is terminated or the Commitment Termination Date, at a rate per annum
from time to time equal to the Applicable Rate, such fee to be paid quarterly in
arrears on each Quarterly Date.
(b) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
(c) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of facility fees and utilization fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
(d) Utilization Fees. The Borrower shall pay to the
Administrative Agent for account of each Lender a utilization fee on the daily
average used amount of such Lender's Commitment for each day on which over 50%
of the aggregate Commitments are utilized (for purposes herein the aggregate
principal amount of any Competitive Borrowing shall be deemed to be a pro rata
(based on the Commitments) use of each Lender's Commitment), for the period from
and including the Effective Date to but not including the earlier of the date
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such Commitment is terminated and the Commitment Termination Date, at a rate per
annum equal to one eighth of 1%. Accrued utilization fees shall be payable in
arrears on each Quarterly Date and on the earlier of the date the relevant
Commitment is terminated and the Commitment Termination Date.
SECTION 2.11. Interest.
(a) ABR Loans. The Loans comprising each ABR Revolving
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar
Borrowing shall bear interest at a rate per annum equal to (i) in the case of a
Eurodollar Revolving Loan, the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate, or (ii) in the case of a
Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in effect for
such Borrowing plus (or minus, as applicable) the Margin applicable to such
Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Revolving Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan prior to the Maturity Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Borrowing prior to the end of the current Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective
date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
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a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive, provided that
same are made on a reasonable basis.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive, provided that same are made on a reasonable basis)
that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Revolving Borrowing
shall be ineffective, (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Revolving Borrowing
and (iii) any request by the Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests by the Borrower for
Eurodollar Competitive Borrowings may be made to Lenders that are not affected
thereby.
SECTION 2.13. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
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(ii) impose on any Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive,
provided that same are made on a reasonable basis. The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Competitive Loans. Notwithstanding the foregoing
provisions of this Section, a Lender shall not be entitled to compensation
pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly
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announced prior to submission of the Competitive Bid pursuant to which such Loan
was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other
than on the last day of an Interest Period applicable thereto (including as
a result of an Event of Default), (b) the conversion of Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable under Section 2.09(b) and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.17, then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurodollar Loan, the loss to any Lender attributable to any such event
shall be deemed to include an amount determined by such Lender to be equal to
the excess, if any, of (i) the amount of interest that such Lender would pay for
a deposit equal to the principal amount of such Loan for the period from the
date of such payment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted LIBO Rate for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for dollar deposits from other banks in the
eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive, provided that same are made on a reasonable basis. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.15. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (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) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
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had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive, provided that same are made on a reasonable basis.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
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interest thereon. All such payments shall be made to the Administrative Agent at
its offices at to such account at the Principal Office as the Administrative
Agent shall specify to the Borrower, except that payments pursuant to Sections
2.13, 2.14, 2.15 and 8.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Revolving Borrowing shall be made from the Lenders,
each payment of Facility Fee under Section 2.10 shall be made for account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.07 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Revolving Borrowing shall be allocated pro rata among the Lenders according
to the amounts of their respective Commitments (in the case of the making of
Revolving Loans) or their respective Loans (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them; and (iv) each payment of interest on Revolving Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Revolving Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its Revolving Loans and accrued interest thereon then due than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans;
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provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(b) or 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.13, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.15, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
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to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.15, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 8.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior consent of the Administrative Agent,
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Competitive Loans), accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that
SECTION 3.01 Corporate Existence.
Each of the Borrower and its Subsidiaries: (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate power, and has
all material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
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standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could have
a Material Adverse Effect.
SECTION 3.02 Financial Condition.
The Borrower has heretofore furnished to each of the Lenders the consolidated
balance sheet of the Borrower and its Subsidiaries as of December 31, 1997 and
the related consolidated statements of income, retained earnings and cash flows
of the Borrower and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon (in the case of said consolidated balance sheet and
statements) of Ernst & Young, and the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at March 31, 1998 and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the three-month period ended on such date. All
such financial statements present fairly, in all material respects, the
consolidated financial position of the Borrower and its Subsidiaries, as at said
dates and the consolidated results of their operations for the fiscal year and
three-month period ended on said dates (subject, in the case of such financial
statements as at March 31, 1998, to normal year-end audit adjustments), all in
accordance with generally accepted accounting principles and practices applied
on a consistent basis. The certificate of a senior financial officer of the
Borrower delivered to each Lender on the date hereof setting forth the
computations necessary to determine whether the Borrower is in compliance with
Sections 5.05, 5.06, 5.07, 5.08 and 5.09 hereof as of the date hereof is true,
complete and correct.
SECTION 3.03 Litigation.
Except as disclosed in Schedule II hereto as of the date hereof, and except as
so disclosed or as otherwise disclosed in writing to the Administrative Agent
and the Lenders on or before the Closing Date as of the Closing Date, there are
no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Borrower) threatened against the Borrower or any of its Subsidiaries or
any Partnership which, if adversely determined, could have a Material Adverse
Effect.
SECTION 3.04 No Breach.
None of the execution and delivery of this Agreement, the consummation of the
transactions herein contemplated or compliance with the terms and provisions
hereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of the Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which the
Borrower or any of its Subsidiaries is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument.
SECTION 3.05 Action.
The Borrower has all necessary corporate power, authority and legal right to
execute, deliver and perform its obligations under this Agreement; the
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execution, delivery and performance by the Borrower of this Agreement have been
duly authorized by all necessary corporate action on its part (including,
without limitation, any required shareholder approvals); and this Agreement has
been duly and validly executed and delivered by the Borrower and constitutes,
when executed and delivered for value will constitute, its legal, valid and
binding obligation, enforceable against the Borrower in accordance with its
terms.
SECTION 3.06 Approvals.
No authorizations, approvals or consents of, and no filings or registrations
with, any governmental or regulatory authority or agency, or any securities
exchange, are necessary for the execution, delivery or performance by the
Borrower of this Agreement or for the legality, validity or enforceability
hereof.
SECTION 3.07 Use of Credit.
Neither the Borrower nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock, and no part of the proceeds of any extension of credit hereunder will be
used to buy or carry any Margin Stock.
SECTION 3.08 ERISA.
(a) The only Plan in which employees of the Borrower or any of
its Subsidiaries or any Partnership participate are the GATX Corporation
Noncontributory Pension Plan for Salaried Employees and the GATX Corporation
Salaried Employees Savings Plan (said Plans being hereinafter collectively
referred to as the "Pension Plans"). The Pension Plans are sponsored and
administered by GATX Corporation and the Borrower and its Subsidiaries or any
Partnership have no control over the structure, funding or administration of
such Pension Plans.
(b) As of the most recent valuation date required under the
Pension Plan occurring on or before the Closing Date, each Pension Plan was
"fully funded", which for purposes of this Section 3.08(b) shall mean that the
fair market value of the assets of the Pension is not less than the present
value of the accrued benefits of all participants in the Pension Plan, computed
on a plan termination basis. As of the Effective Date, no Multiemployer Plan has
an accumulated funding deficiency or a waived funding deficiency, in either case
within the meaning of Section 412 or Section 418B of the Code, and no
proceedings have been instituted by the PBGC to terminate any Multiemployer
Plan, in any case involving an amount which will have a Material Adverse Effect.
(c) Since December 31, 1997, except as disclosed in writing to
the Lenders on or before the date hereof, there has been no "prohibited
transaction", as such term is defined in Section 4975 of the Code, and no
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"reportable event", as such term is defined in Section 4043 of ERISA, which has
resulted or might result in the imposition of a lien or charge upon, or any
other liability with respect to, any property of the Borrower or any Subsidiary
which would have a Material Adverse Effect.
(d) Each Pension Plan, and, to the knowledge of the Borrower,
each Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law.
SECTION 3.09 Taxes.
The Borrower and its Subsidiaries are members of an affiliated group of
corporations filing consolidated returns for Federal income tax purposes, of
which the GATX Corporation is the "common parent" (within the meaning of Section
1504 of the Code) of such group. The Borrower and its Subsidiaries have filed
all Federal income tax returns and all other material tax returns that 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 of its
Subsidiaries except any assessment which the Borrower is contesting in good
faith by appropriate proceedings. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes and other
governmental charges (including any assessment being contested in good faith by
the Borrower) are, in the reasonable opinion of the Borrower, adequate in light
of generally accepted accounting principles.
SECTION 3.10 Investment Company Act.
Neither the Borrower nor any of its Subsidiaries is an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 3.11 Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.12 Pari Passu Status.
The claims and rights of the Lenders against the Borrower hereunder are not
subordinated to, and rank at least pari passu with, the claims and rights of
other holders of its unsecured indebtedness except to the extent otherwise
provided by law (including without limitation the Bankruptcy Code and the
provisions of 31 U.S.C.
ss.3713).
SECTION 3.13 Subsidiaries.
Set forth in Part A of Schedule III hereto is a complete and correct list, as
of the date of this Agreement, of all of the Subsidiaries of the Borrower.
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SECTION 3.14 Compliance.
Except for Secured Nonrecourse Obligations and except for nonrecourse
obligations incurred in connection with leveraged lease transactions as
determined in accordance with generally accepted accounting principles, neither
the Borrower nor any Subsidiary of the Borrower is in default under terms of any
mortgage, lease, indenture, deed of trust or any other agreement to which any of
them are parties or by which any of their properties may be bound which default
would have a Material Adverse Effect. Neither Borrower nor any Subsidiary of the
Borrower is in violation of any law, ordinance, rule or regulation to which it
or any of its properties is subject which violation would have a Material
Adverse Effect.
SECTION 3.15 Partnerships.
Set forth in Part B of Schedule III hereto is a complete and correct list of
all Partnerships as of the date of this Agreement.
SECTION 3.16 True and Complete Disclosure.
The information, reports, financial statements, exhibits and schedules
furnished in writing by the Borrower to the Administrative Agent or any Lender
in connection with the negotiation, preparation or delivery of this Agreement or
included herein or delivered pursuant hereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and its Subsidiaries
to the Administrative Agent and the Lenders in connection with this Agreement
and the transactions contemplated hereby will be true, complete and accurate in
every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified.
There is no fact known to the Borrower that could have a Material Adverse Effect
that has not been disclosed herein or in a report, financial statement, exhibit,
schedule, disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby.
SECTION 3.17 Year 2000 Issues.
To the best knowledge of the Borrower, any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed by January 1, 1999. To the best knowledge of the
Borrower, the cost to the Borrower of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Borrower (including
reprogramming errors and the failure of others' systems or equipment) will not
result in a Default or a Material Adverse Effect. To the best knowledge of the
Borrower and except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without a Material Adverse Effect.
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SECTION 3.18 Properties.
(a) Property Generally. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interest in, all its real and
personal property material to its business, subject only to Liens permitted by
Section 5.09 and except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its
Subsidiaries own, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringement that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.
The obligations of the Lenders to make Loans hereunder shall not become
effective until the date on which the Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to each Lender) in form
and substance (or such condition shall have been waived in accordance with
Section 8.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrower. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Thomas C. Nord, counsel for the Borrower,
substantially in the form of Exhibit C, and covering such other matters
relating to the Borrower, this Agreement and the transactions
contemplated hereby as the Required Lenders shall reasonably request
(and the Borrower hereby instructs such counsel to deliver such opinion
to the Lenders and the Administrative Agent).
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(c) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy, special
New York counsel to Chase, substantially in the form of Exhibit D (and
Chase hereby instructs such counsel to deliver such opinion to the
Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Borrower, the
authorization of this Agreement and any other legal matters relating to
the Borrower, this Agreement or the transactions contemplated hereby,
all in form and substance satisfactory to the Administrative Agent and
its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a senior
financial officer of the Borrower, confirming compliance with the
conditions set forth in the lettered clauses of the first sentence of
Section 4.02.
(f) Ratings. A certificate of a senior financial officer of
the Borrower, dated the Effective Date, setting forth the then current
ratings of the Borrower's senior unsecured, non-credit enhanced,
long-term debt by S&P and Moody's.
(g) No Change. A certificate of a senior financial officer of
the Borrower, dated the Effective Date, to the effect that, as of the
Effective Date, there has been no material adverse change in the
consolidated financial condition, operations, business or prospects
taken as a whole of the Borrower and its Subsidiaries from that set
forth in the financial statements as of December 31, 1997 referred to
in Section 5.01.
(h) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to Chase
may reasonably request.
The obligation of any Lender to make its initial Loan
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy, special New York counsel to Chase, in connection with
the negotiation, preparation, execution and delivery of this Agreement and the
Loans hereunder (to the extent that statements for such fees and expenses have
been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
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SECTION 4.02 Initial and Subsequent Loans.
The obligation of each Lender to make a Loan on the occasion of any Borrowing
is subject to the satisfaction of the following conditions:
(a) the representations and warranties made by the Borrower in
Article III shall be true and complete on and as of the date of the
making of such Loan with the same force and effect as if made on and as
of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific
date) or, in the case of the representations and warranties set forth
in Section 3.03 and 3.08(b) only, shall be true and complete on and as
of the Closing Date;
(b) since the later of (x) December 31, 1997 and (y) the date
which is the last day of the most recent fiscal year for which the
annual financial statements for the Borrower have been delivered to the
Lenders and the Administrative Agent pursuant to Section 5.01(b), there
has been no material adverse change in the consolidated financial
condition, operations, business or prospects taken as of whole of the
Borrower and its Subsidiaries from that set forth in said financial
statements as at December 31, 1997 referred to in Section 3.02 or as at
such date with respect to such financial statements delivered pursuant
to Section 5.01(b), as the case may be; and
(c) at the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V
COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information
. The Borrower shall deliver to each of the Lenders and the Administrative Agent
directly (in the case of (a), (b) and (c)(i) below) and to the Administrative
Agent with sufficient copies for each of the Lenders (in the case of (c)(ii),
(d), (e), (f) and (g) below):
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(a) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Borrower, consolidated statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of
such period, and the related consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such period, setting forth in
each case in comparative form the corresponding consolidated figures
for the corresponding period in (or, in the case of the balance sheet,
as of the end of) the preceding fiscal year, accompanied by a
certificate of a senior financial officer of the Borrower, which
certificate shall state that said consolidated financial statements
present fairly, in all material respects, the consolidated financial
position and results of operations of the Borrower and its
Subsidiaries, in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, consolidated statements of
income, retained earnings and cash flows of the Borrower and its
Subsidiaries for such fiscal year and the related consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the corresponding
consolidated figures for the preceding fiscal year, and accompanied by
an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that said
consolidated financial statements present fairly, in all material
respects, the consolidated financial position and results of operations
of the Borrower and its Subsidiaries as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default (which
certificate may be limited to the extent required by accounting rules
or guidelines);
(c) promptly upon their becoming available, copies of (i) all
registration statements and regular periodic reports, if any, and (ii)
all other reports, if any, in each case which the Borrower shall have
filed with the Securities and Exchange Commission (or any governmental
agency substituted therefor) or any national securities exchange;
(d) within ten days after the Borrower knows that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by a
senior financial officer of the Borrower setting forth details
respecting such event or condition and the action, if any, that the
Borrower or its ERISA Affiliate proposes to take with respect thereto
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(and a copy of any report or notice required to be filed with or given
to PBGC by the Borrower or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived or contingently waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Code or Section
302 of ERISA, including, without limitation, the failure to
make on or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA, shall
be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code); and
any request for a waiver under Section 412(d) of the Code for
any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken
by the Borrower or an ERISA Affiliate to terminate any Plan,
in each case with respect to which there are insufficient
assets to pay benefits as they become due;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Borrower or any ERISA Affiliate of a notice
from a Multiemployer Plan that such action has been taken by
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Borrower
or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
(v) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Borrower or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections.
<PAGE>
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(e) promptly after the Borrower knows that any Default has
occurred, a notice of such Default describing the same in reasonable
detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Borrower has taken or
proposes to take with respect thereto;
(f) promptly after the Borrower knows that the rating in
respect of the Borrower's Index Debt has changed, a notice of such
change setting forth any changed rating, whether such rating is by S&P
or Moody's and the date of such change; and
(g) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as the Administrative Agent may reasonably request.
The Borrower will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Borrower (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Borrower has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Borrower is in compliance with Sections 5.05, 5.06, 5.07, 5.08 and 5.09 hereof
as of the end of the respective quarterly fiscal period or fiscal year.
SECTION 5.02 Litigation.
The Borrower will promptly give to the Administrative Agent notice of all
legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Borrower or any of its
Subsidiaries, except proceedings which, if adversely determined, would not have
a Material Adverse Effect.
SECTION 5.03 Existence, Etc. The Borrower will, and will cause
each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 5.03 shall prohibit any transaction expressly
permitted under Section 5.15 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could have a Material
Adverse Effect;
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(c) duly pay and discharge or cause to be paid and discharged,
all taxes, assessments and governmental charges or levies imposed upon
them or upon any of its Property prior to the date on which penalties
attach thereto, unless and to the extent only that the same shall be
contested in good faith and by appropriate proceedings, and the
Borrower or such Subsidiary, as the case may be, shall have set aside
on its books adequate reserves with respect to any such tax,
assessment, charge or levy so contested; provided that with respect to
property leased to third parties, the obligations under this paragraph
(c) may be satisfied by imposing substantially the same obligations
upon the lessees of such property and exercising such degree of
supervision and enforcement of such obligations of such lessees as
shall be commercially reasonable in the reasonable opinion of the
Borrower;
(d) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied and/or regulations of any
governmental regulatory body having jurisdiction thereof; and
(e) permit representatives of any Lender through the
Administrative Agent or the Administrative Agent, during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect any of its Properties, and to discuss its business
and affairs with its officers, all to the extent reasonably requested
by such Lender or the Administrative Agent (as the case may be).
SECTION 5.04 Insurance.
The Borrower will, and the Borrower will cause each of its Subsidiaries to,
maintain, with financially sound and reputable insurers, insurance with respect
to its properties and business against such casualties and contingencies, of
such types (including, but not limited to, public liability, embezzlement or
other criminal misappropriation insurance) and in such amount as is customary in
the Borrower's opinion in the case of corporations of established reputation
engaged in the same or similar business and similarly situated, provided that
with respect to property leased to third parties the obligations under this
Section 5.04 may be satisfied by imposing substantially the same insurance
obligations upon the lessees of such property (to the extent the same are
applicable in the commercially reasonable opinion of the Borrower), and by
exercising such degree of supervision and enforcement of such obligations of
lessees as shall be commercially reasonable in the reasonable opinion of the
Borrower.
SECTION 5.05 Net Worth.
The Borrower shall maintain a consolidated Net Worth of at least $300,000,000.
As used in this Agreement, the term "Net Worth" shall mean the excess if any, of
the sum determined pursuant to (a) below minus the sum determined pursuant to
(b) below, each to be determined in accordance with generally accepted
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accounting principles as used in the most recent financial statements delivered
by the Borrower pursuant to Section 5.01 hereof:
(a) the sum of:
(i) the consolidated stockholder's equity of the
Borrower (including preferred stock and retained earnings),
(ii) the deferred investment tax credit income of the
Borrower taken on a consolidated basis, and
(iii) the deferred income taxes of the Borrower taken
on a consolidated basis, provided that the amount included
hereunder for the purpose of determining Net Worth shall not
exceed 50% of the sum of (i) and (ii) above; and
(b) the sum of:
(i) the amount by which investments in the capital
stock of, unsecured advances to, or unsecured accounts
receivable from, GATX Financial Services, Inc. and its
Majority Owned Subsidiaries (other than the Borrower and its
Subsidiaries and Partnerships) exceeds 20% of the sum
described in Section 5.05(a) above, and
(ii) the amount by which unsecured advances to, or
unsecured accounts receivable from, GATX Corporation and its
Majority Owned Subsidiaries (other than GATX Financial
Services, Inc. and its Majority Owned Subsidiaries) exceeds
20% of the sum described in Section 5.05(a).
SECTION 5.06 Certain Financial Covenants.
(a) Leverage. The Borrower shall not permit the ratio of the
sum of (x) Senior Liabilities plus Subordinated Debt in excess of 20% of Net
Worth plus Secured Nonrecourse Obligations in excess of 30% of Total Assets to
the sum of (y) Net Worth plus Subordinated Debt not in excess of 20% of Net
Worth to exceed 4.50 to 1.
(b) Fixed Charge Coverage Ratio. The Borrower shall not at any
time permit the Fixed Charge Coverage Ratio to be less than 1.20 to 1.
SECTION 5.07 Commercial Paper; The Loans.
The Borrower shall not at any time permit the aggregate outstanding amount of
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(i) Commercial Paper, and (ii) Loans to exceed the aggregate amount of the
Commitments and other unused, committed lines of credit (evidenced by an
agreement or confirmation in writing) of the Borrower and its Subsidiaries
available from financial institutions.
SECTION 5.08 Dividend Limitation.
The Borrower shall not declare or make any Dividend Payment (except Dividend
Payments payable solely in common stock or preferred stock of the Borrower), if
after giving effect thereto the aggregate amount of Dividend Payments declared
or made, as of the date of determination hereunder, during the period from and
after December 31, 1997, to and including the date of declaration or making of
the Dividend Payment in question would exceed the sum of (x) $25,000,000 plus
(y) 50% of cumulative net income of the Borrower from and after December 31,
1997 and (z) capital contributions after December 31, 1997, or its equivalent.
SECTION 5.09 Liens and Secured Indebtedness.
The Borrower shall not, nor shall it permit any Subsidiary of the Borrower to,
create, assume or suffer to exist any Lien, upon any of its Property except that
the Borrower and its Subsidiaries may:
(a) create, incur or suffer to exist Liens securing taxes,
assessments or governmental charges or levies or the claims or demands
of materialmen, mechanics, carriers, warehousemen, landlords and other
like persons, provided that (i) payment is not yet due to such persons
or (ii) (x) such Liens are being contested in good faith and by
appropriate proceedings, (y) adequate reserves have been established
with respect thereto and (z) the owning company's title to and its
right to use its property is not materially adversely affected thereby;
(b) create, incur or suffer to exist Liens incurred or
deposits made in the ordinary course of business (i) in connection with
workers' compensation, unemployment insurance, social security and
other like laws, or (ii) to secure the performance of letters of
credit, bids, tenders, sales contracts, leases, statutory obligations,
surety, appeal and performance bonds and other similar obligations not
incurred in connection with the borrowing of money or the obtaining of
advances;
(c) create, incur or suffer to exist attachment, judgment and
other similar Liens arising in connection with court proceedings,
provided that (i) the execution or other enforcement of such Liens in
an aggregate amount exceeding $5,000,000 is effectively stayed and (ii)
the claims secured thereby are being actively contested in good faith
and by appropriate proceedings;
(d) create, incur or suffer to exist Liens on Property of a
Subsidiary of the Borrower to secure only obligations owing to the
Borrower or another such Subsidiary;
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(e) create, incur or suffer to exist reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other similar title exceptions or encumbrances
affecting real property, provided that they do not in the aggregate (i)
materially diminish the value of such property, or (ii) materially
interfere with such property's use in the ordinary conduct of the
owning company's business;
(f) create, incur or suffer to exist Liens existing at the
date of acquisition on Property acquired by the Borrower or a
Subsidiary of the Borrower in bona fide liquidation, collection or
other realization upon or settlement of, collateral held to secure any
obligation to the Borrower or any such Subsidiary;
(g) create, incur or suffer to exist Liens securing Secured
Nonrecourse Obligations, provided that (i) such Liens are limited to
the Property financed by such Secured Nonrecourse Obligations and the
lease or security agreement to which such Property is subject, and (ii)
the aggregate amount of Secured Nonrecourse Obligations does not exceed
30% of Total Assets, provided further that, in the case of Liens
securing Secured Nonrecourse Obligations of Sun Financial Group, Inc.,
such Secured Nonrecourse Obligations shall be excluded from the
calculation of the limitation set forth in clause (ii) above so long as
the recourse of the payee of such obligations is expressly limited to
an assigned lease and the property related thereto where the obligor of
such lease has an investment grade rating from S&P or Moody's for its
senior, unsecured debt;
(h) create, incur or suffer to exist Liens securing Secured
Indebtedness, provided that (i), except in the case of Liens on real
property securing Secured Indebtedness, the fair market value of
property which secures such indebtedness (such fair market value to be
determined at the time such indebtedness is incurred) shall not exceed
150% of the maximum principal amount of such indebtedness, and (ii) the
aggregate amount of Secured Indebtedness shall not exceed 15% of Total
Assets;
(i) incur or suffer to exist inchoate Liens arising under
ERISA to secure any contingent liability of the Borrower;
(j) in addition to the Liens permitted in the foregoing
clauses (a) through (i) of this Section 5.09, create, incur or suffer
to exist Liens incurred in the ordinary course of business of the
Borrower and its Subsidiaries, provided that the aggregate amount of
indebtedness secured by Liens pursuant to this clause (j) shall not at
any time exceed $250,000; and
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(k) modify, extend, renew or replace any Lien permitted by
this Section 5.09 upon the same property theretofore subject thereto,
or modify, extend, renew or replace the indebtedness secured thereby.
SECTION 5.10 Transactions with Affiliates.
Neither the Borrower nor any of its Subsidiaries will enter into any
transaction (other than unsecured advances to or unsecured accounts receivable
from Affiliates or transactions permitted by Section 5.09), including, but not
limited to, the purchase, sale or exchange of property or the rendering of any
service, with any Affiliate except in the ordinary course of business and upon
fair and reasonable terms not materially less favorable to the Borrower than it
would obtain in a comparable arm's length transaction with a Person not an
Affiliate.
SECTION 5.11 Use of Proceeds.
The Borrower will use the proceeds of the Loans hereunder solely for general
corporate purposes (in compliance with all applicable legal and regulatory
requirements); provided that neither the Administrative Agent nor any Lender
shall have any responsibility as to the use of any of such proceeds.
SECTION 5.12 Location of Records.
The Borrower will, and the Borrower will cause each of its Subsidiaries to,
keep copies of its lease and other financing documents and all of its records
with respect thereto at Four Embarcadero Center, San Francisco, California or at
other offices of the Borrower; provided that such leases, documents and records
shall be available to the Lenders as contemplated by Section 5.03(e) hereof.
SECTION 5.13 Business.
The Borrower and its Subsidiaries will engage primarily in the business of
leasing, investing in, financing and selling transportation, industrial and
commercial equipment and commercial and other real estate investment property
and companies and activities related thereto.
SECTION 5.14 Performance of Obligations.
The Borrower will, and the Borrower will cause each of its Subsidiaries to,
perform and comply with all of its obligations under all applicable laws and all
indentures, agreements or other instruments to which it is a party or by which
it or any of its properties is bound, if the failure to comply therewith will
have a material adverse effect on the consolidated financial condition of the
Borrower on a consolidated basis.
SECTION 5.15 Merger; Sale of Assets, Etc.
The Borrower shall not, and, except in the ordinary course of business, shall
not permit a Subsidiary or Partnership to, convey, sell, lease or otherwise
dispose of all or substantially all of its assets to, or merge into or
consolidate with, any person, association (incorporated or unincorporated),
joint venture, partnership or other firm, or any corporation or other firm, or
any corporation or other entity (herein collectively called a "Person");
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provided, however, that (i) any Subsidiary may merge into the Borrower or merge
into or be consolidated with any other Subsidiary, (ii) any Subsidiary may
convey, sell, lease or dispose of all or substantially all of its assets to the
Borrower or to another Subsidiary, (iii) any Partnership may on an arm's length
basis and with fair consideration convey, sell, lease or otherwise dispose of
all or substantially all of its assets to the Borrower, a Subsidiary or another
partner in a Partnership, and (iv) the Borrower may merge or consolidate with
any Person if the Borrower is the surviving corporation and after giving effect
thereto no Default would exist hereunder; provided, further, that promptly after
the time of such merger or consolidation of the Borrower with or disposition to
such Person, the Borrower shall give each Lender (through the Administrative
Agent) written notice thereof, and, upon receipt of such notice, any Lender may
elect, by giving written notice to the Borrower (through the Administrative
Agent), to have its Commitment immediately terminated and the outstanding
principal of its Loans immediately paid or prepaid together with accrued
interest to the date of prepayment and all other amounts payable to such Lender
hereunder whereupon the Commitment of such Lender shall forthwith terminate and
its Loans and all such other amounts shall be forthwith paid or prepaid by the
Borrower, and the Borrower shall immediately notify each other Lender (through
the Administrative Agent) of such notice of election.
SECTION 5.16 Restrictive Agreements.
Except as otherwise permitted hereunder, the Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions, exceptions and conditions imposed or permitted by law or
by this Agreement, (ii) the foregoing shall not apply to restrictions,
exceptions and conditions existing on the date hereof identified on Schedule IV
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions, exceptions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions, exceptions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of the foregoing shall not apply to restrictions, exceptions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (v) clause (a) of the foregoing shall
not apply to customary provisions in leases and other contracts restricting the
assignment thereof.
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ARTICLE VI
EVENTS OF DEFAULT
If one or more of the following events (herein called "Events
of Default") shall occur and be continuing:
(a) The Borrower shall: default in the payment of any
principal of or interest on any Loan or any fee or any other amount
payable by it hereunder when due (whether at stated maturity or at
mandatory or optional prepayment) and such default shall have continued
unremedied for 2 Business Days; or
(b) The Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $10,000,000 or more, or in the payment
when due of any amount under any Hedging Agreement for a notional
principal amount exceeding $10,000,000; or any event specified in any
note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Hedging Agreement
shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder
or holders of such indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, such Indebtedness to become due, or
to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par
value thereof or, in the case of an Hedging Agreement, to permit the
payments owing under such Hedging Agreement to be liquidated; or
(c) Any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by the
Borrower, or any instrument or certificate furnished to any Lender or
the Administrative Agent pursuant to the provisions hereof, shall prove
to have been false or misleading as of the time made or furnished in
any material respect; or
(d) The Borrower shall default in the performance of any of
its obligations under any of Sections 5.01(e), 5.05, 5.06, 5.07, 5.08,
5.09, 5.15 and 5.16; or the Borrower shall default in the performance
of any of its other obligations in this Agreement and such default
shall continue unremedied for a period of ten days after notice thereof
to the Borrower by the Administrative Agent or any Lender (through the
Administrative Agent); or
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(e) The Borrower or any of its Subsidiaries (other than a
Single Transaction Subsidiary) shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due; or
(f) The Borrower or any of its Subsidiaries (other than a
Single Transaction Subsidiary) shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its Subsidiaries
(other than a Single Transaction Subsidiary), in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its
debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of the Borrower or such Subsidiary or
of all or any substantial part of its Property, or (iii) similar relief
in respect of the Borrower or such Subsidiary under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against the
Borrower or such Subsidiary shall be entered in an involuntary case
under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $10,000,000 in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or in excess of $10,000,000 in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Borrower or any of its Subsidiaries and the same shall not
be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 30 days from
the date of entry thereof and the Borrower or the relevant Subsidiary
shall not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
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(i) An event or condition specified in Section 5.01(d) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan or
any lien arises pursuant to ERISA and, as a result of such event or
condition or liens, together with all other such events or conditions
or liens, the Borrower or any ERISA Affiliate shall incur or shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC or suffer an encumbrance to exist in favor of any thereof (or
any combination of the foregoing) which would constitute a Material
Adverse Effect; or
(j) Any Single Transaction Subsidiary or Partnership shall
admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due; and such event singly or in the
aggregate with each other similar event shall have a Material Adverse
Effect; or
(k) Any Single Transaction Subsidiary or Partnership shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee, examiner or liquidator of itself or
of all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code or
(vi) take any corporate action for the purpose of effecting any of the
foregoing; and such event singly or in the aggregate with each other
similar event shall have a Material Adverse Effect;
(l) A proceeding or case shall be commenced, without the
application or consent of any Single Transaction Subsidiary or
Partnership, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of such
Single Transaction Subsidiary or Partnership or of all or any
substantial part of its Property, or (iii) similar relief in respect of
such Single Transaction Subsidiary or Partnership under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 or more days; or an order for relief
against such Single Transaction Subsidiary or Partnership shall be
entered in an involuntary case under the Bankruptcy Code; and such
event singly or in the aggregate with each other similar event shall
have a Material Adverse Effect, or
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(m) A Change in Control shall occur;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Article VI with respect to the Borrower, (A) the
Administrative Agent may and, upon request of the Required Lenders, shall, by
notice to the Borrower, terminate the Commitments and they shall thereupon
terminate, and (B) the Administrative Agent may and, upon request of Lenders
holding more than 50% of the aggregate unpaid principal amount of the Loans
shall, by notice to the Borrower declare the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts payable by the
Borrower hereunder (including, without limitation, any amounts payable under
Section 2.14) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Article VI with respect to the Borrower, the
Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans and all other amounts
payable by the Borrower hereunder (including, without limitation, any amounts
payable under Section 2.14) shall automatically become immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person 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
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
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to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise by the Required Lenders (or such
other number of percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 8.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number of percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 8.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
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their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower, provided that the
retiring Administrative Agent shall continue to perform the duties assigned to
it hereunder until a successor Administrative Agent accepts the appointment and
becomes vested with the rights, powers, privileges and duties of the retiring
Administrative Agent as provided below. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a bank with an office in New York City or
an Affiliate of any such bank, in either case with a combined surplus of at
least $500,000,000. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 8.03 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices.
Except in the case of notices and other communications expressly permitted to
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be given by telephone, all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at GATX Capital Corporation,
Four Embarcadero Center, Suite 2200, San Francisco, CA 94111,
Attention of Richard M. Tinnon, (Telecopy No. (415)955-3493; Telephone
No. (415)955-3200;
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention Jesus Sang of The Loan and Agency Services Group (Telecopy
No. (212) 552-5650; Telephone No. (212) 552-7916) with a copy to The
Chase Manhattan Bank, 270 Park Avenue, 38th Floor, New York, New York
10017, Attention of Matthew Massie (Telecopy No. (212) 270-5100)
Telephone No. (212) 270-6543); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 8.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
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(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby,
(iv) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied as
among the Lenders or Types or Classes of Loans, without the written
consent of each Lender, or
(v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 8.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
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enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby, (ii) any Loan or the use of proceeds therefrom or (iii) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its capacity
as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the transactions
contemplated hereby, any Loan or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable after written demand therefor.
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SECTION 8.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender, each of the Borrower and the Administrative
Agent must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (f) or (g) of Article VI has occurred and is continuing. Upon acceptance
and recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 8.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
<PAGE>
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(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
8.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
<PAGE>
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Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.13 or 2.15 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.15(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(h) No Assignments to the Borrower or Affiliates.
Notwithstanding anything to the contrary in this Section, no Lender may assign
or participate any interest in any Loan held by it hereunder to the Borrower or
any of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 8.05. Survival.
All covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.13,
2.14, 2.15 and 8.03 and Article VII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
<PAGE>
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SECTION 8.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 8.07. Severability.
Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 8.08. Right of Setoff
. If an Event of Default shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 8.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
<PAGE>
-66-
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 8.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 8.10. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 8.11. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
<PAGE>
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SECTION 8.12. Treatment of Certain Information;
Confidentiality.
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the
Borrower and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Borrower or (viii) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this paragraph or (B) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this paragraph, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
GATX CAPITAL CORPORATION
By_________________________
Title:
<PAGE>
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LENDERS
THE CHASE MANHATTAN BANK THE FIRST NATIONAL BANK
OF CHICAGO
By By
Title: Title:
BANK OF AMERICA NATIONAL BANK OF MONTREAL
TRUST AND SAVINGS ASSOCIATION
By By
Title: Title:
NATIONSBANK, N.A. UBS AG, NEW YORK BRANCH
By By
Title: Title:
By
Title:
THE BANK OF NEW YORK THE BANK OF NOVA SCOTIA
By By
Title: Title:
<PAGE>
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CREDIT LYONNAIS ROYAL BANK OF CANADA
SAN FRANCISCO BRANCH
By By
Title: Title:
UNION BANK OF CALIFORNIA, N.A. WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
NEW YORK BRANCH
By By
Title: Title:
By
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
Title:
<PAGE>
SCHEDULE I
Commitments
[See definitions of "Commitment" in Section 1.01]
LENDER COMMITMENT AMOUNT
The Chase Manhattan Bank $37,500,000.00
The First National Bank of Chicago $32,500,000.00
Bank of America National Trust and Savings
Association $27,500,000.00
Bank of Montreal $27,500,000.00
NationsBank, N.A. $27,500,000.00
UBS AG, New York Branch $27,500,000.00
The Bank of New York $20,000,000.00
The Bank of Nova Scotia $20,000,000.00
Credit Lyonnais San Francisco Branch $20,000,000.00
Royal Bank of Canada $20,000,000.00
Union Bank of California, N.A. $20,000,000.00
Westdeutsche Landesbank Girozentrale, New York $20,000,000.00
Branch
Schedule I to Credit Agreement
<PAGE>
SCHEDULE II
Litigation
[See definition of "Litigation" in Section 3.03]
Schedule II to Credit Agreement
<PAGE>
SCHEDULE III
Subsidiaries and Partnerships
Part A - Subsidiaries
[See definition of "Subsidiaries" in Section 3.13]
Part B - Partnerships
[See definition of "Partnerships" in Section 3.15]
Schedule III to Credit Agreement
<PAGE>
SCHEDULE IV
Restrictive Agreements
[See reference to "Restrictive Agreements" in Section 3.18]
Schedule IV to Credit Agreement
<PAGE>
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of July 1, 1998 (as amended and in effect on the date hereof, the
"Credit Agreement"), between GATX Capital Corporation, the Lenders named therein
and The Chase Manhattan Bank, as Administrative Agent for the Lenders. Terms
defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with unpaid
interest accrued on the assigned Loans to the Assignment Date, and the amount,
if any, set forth on the reverse hereof of the fees accrued to the Assignment
Date for the account of the Assignor. The Assignee hereby acknowledges receipt
of a copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 8.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Assignment and Acceptance
<PAGE>
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Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")1:
Percentage Assigned of
Facility/Commitment
(set forth, to at
Principal Amount least 8 decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
Commitment Assigned: $ %
Revolving Loans:
Competitive Loans:
Fees Assigned (if any):
The terms set forth above and on the reverse side hereof are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
By:_________________________
Name:
Title:
1 Must be at least five Business Days after execution hereof by all
required parties.
Assignment and Acceptance
<PAGE>
-3-
[NAME OF ASSIGNEE] , as Assignee
By:_________________________
Name:
Title:
Assignment and Acceptance
<PAGE>
-4-
The undersigned hereby consent to the within assignment:2
GATX CAPITAL CORPORATION
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Name:
Title:
2 Consents to be included to the extent required by Section 8.04(b) of
the Credit Agreement.
Assignment and Acceptance
<PAGE>
EXHIBIT B
[Form of Note]
PROMISSORY NOTE
$--------------- -----------, ----
New York, New York
FOR VALUE RECEIVED, GATX CAPITAL CORPORATION, a corporation
Delaware (the "Borrower"), hereby promises to pay to __________________ (the
"Lender"), at the principal office of The Chase Manhattan Bank at 270 Park
Avenue, New York, New York 10017, the principal sum of _______________ Dollars
(or such lesser amount as shall equal the aggregate unpaid principal amount of
the Loans made by the Lender to the Borrower under the Credit Agreement referred
to below), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in said
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Loan, at such office, in like money and funds, for the period commencing on
the date of such Loan until such Loan shall be paid in full, at the rates per
annum and on the dates provided in said Credit Agreement.
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Loans
made by the Lender.
This Note is one of the Notes referred to in the Credit
Agreement dated as of July 1, 1998 (as modified and supplemented and in effect
from time to time, the "Credit Agreement") among the Borrower, the lenders named
therein and The Chase Manhattan Bank, as Administrative Agent, and evidences
Loans made by the Lender thereunder. Terms used but not defined in this Note
have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Note
<PAGE>
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Except as permitted by Section 2.07(e), 2.07(f), 2.17(b) and
8.04(b) of the Credit Agreement, this Note may not be assigned by the Lender to
any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
GATX CAPITAL CORPORATION
By_________________________
Title:
Note
<PAGE>
-3-
SCHEDULE OF LOANS
This Note evidences Loans made, continued or converted under
the within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Classes and Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below,
subject to the payments, continuations, conversions and prepayments of principal
set forth below:
Amount
Date Prin- Class Paid,
Made, cipal and Duration Prepaid, Unpaid
Continue Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
- --------- ---- ---- ---- ------ --------- ------ -------
Note
<PAGE>
EXHIBIT C
[Form of Opinion of General Counsel to the Borrower]
__________, 199_
To the Lenders party to the Credit Agreement referred to below
and The Chase Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
I have acted as counsel to GATX Capital Corporation (the
"Borrower") in connection with the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of July 1, 1998, among the Borrower, the lenders
party thereto and The Chase Manhattan Bank, as Administrative Agent, providing
for loans to be made by said lenders to the Borrower in an aggregate principal
amount not exceeding $300,000,000. Terms defined in the Credit Agreement are
used herein as defined therein. This opinion letter is being delivered pursuant
to Section 4.01(b) of the Credit Agreement.
In rendering the opinion expressed below, I have examined the
originals or conformed copies of such corporate records, agreements and
instruments of the Borrower, certificates of public officials and of officers of
the Borrower, and such other documents and records, and such matters of law, as
I have deemed appropriate as a basis for the opinions hereinafter expressed.
Based upon 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 the
necessary corporate power to make and perform the Credit Agreement and
the Notes and to borrow under the Credit Agreement. Each Subsidiary of
the Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of its respective state of
incorporation. Each of the Borrower and its Subsidiaries is duly
qualified to transact business in all jurisdictions in which such
qualification is necessary and where failure so to qualify would have a
material adverse effect on the consolidated financial condition,
operations, business or prospects taken as a whole of the Borrower and
its Subsidiaries.
Opinion of Counsel to the Borrower
<PAGE>
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2. The making and performance by the Borrower of the Credit
Agreement and the borrowings by the Borrower under the Credit Agreement
have been duly authorized by all necessary corporate action, and do not
and will not violate any provision of law or regulation or any
provision of its charter or by-laws or result in the breach of, or
constitute a default or require any consent under, or result in the
creation of any Lien upon any of the Properties, revenues or assets of
the Borrower pursuant to, any indenture or other agreement or
instrument to which the Borrower is a party or by which the Borrower or
its Properties may be bound.
3. The Credit Agreement constitutes, and the Notes when
executed and delivered for value will constitute, legal, valid and
binding obligations of the Borrower enforceable in accordance with
their respective terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other similar
laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and except that no opinion is
expressed as to the last sentence of Section 2.16(d) of the Credit
Agreement.
I express no opinion as to (i) whether a Federal or state
court outside of the State of New York would give effect to the choice
of New York law provided for in the Credit Agreement and the Notes,
(ii) the first sentence of Section 8.09(b) of the Credit Agreement,
insofar as such sentence relates to the subject matter jurisdiction of
the United States District Court for the Southern District of New York
to adjudicate any controversy related to the Credit Agreement or the
Notes or (iii) the waiver of inconvenient forum set forth in Section
8.09(c) of the Credit Agreement with respect to proceedings in the
United States District Court for the Southern District of New York.
Finally, I wish to point out that provisions of the Credit Agreement
which permit the Administrative Agent or any Lender to take action or
make determinations, or to benefit from indemnities and similar
undertakings of the Borrower, may be subject to a requirement that such
action be taken or such determinations be made, and that any action or
inaction by the Administrative Agent or any Lender which may give rise
to a request for payment under such an undertaking be taken or not
taken, on a reasonable basis and in good faith.
4. There are no legal or arbitral proceedings, and no
proceedings by or before any governmental or regulatory authority or
agency, pending or (to my knowledge after due inquiry) threatened
against or affecting the Borrower, or any Properties or rights of the
Borrower, which, if adversely determined, would have a Material Adverse
Effect.
Opinion of Counsel to the Borrower
<PAGE>
-3-
5. No authorizations, consents, approvals, licenses, filings
or registrations with, any governmental or regulatory authority or
agency are required in connection with the execution, delivery or
performance by the Borrower of the Credit Agreement.
Very truly yours,
Opinion of Counsel to the Borrower
<PAGE>
EXHIBIT D
[Form of Opinion of Special New York Counsel to Chase]
__________, 199_
To the Lenders party to the Credit Agreement referred to below
and The Chase Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank ("Chase") in connection with the Amended and Restated Credit
Agreement (the "Credit Agreement") dated as of July 1, 1998, between GATX
Capital Corporation (the "Borrower"), the lenders party thereto and Chase, as
Administrative Agent, providing for loans to be made by said lenders to the
Borrower in an aggregate principal amount not exceeding $300,000,000. Terms
defined in the Credit Agreement are used herein as defined therein. This opinion
letter is being delivered pursuant to Section 4.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined
the Credit Agreement.
In our examination, when relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Credit Agreement.
In rendering the opinions expressed below, we have assumed
that:
(i) the Credit Agreement has been duly authorized by, has
been duly executed and delivered by, and (except to
the extent set forth in the opinions expressed below
as to the Borrower) constitutes legal, valid, binding
and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to the Credit Agreement have been
duly authorized; and
(iii) all of the parties to the Credit Agreement are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform the Credit Agreement.
Opinion of Special New York Counsel to Chase
<PAGE>
-2-
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws relating to or affecting the rights of creditors generally and except as
the enforceability of the Credit Agreement is subject to the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 8.03 of the Credit Agreement
may be limited by laws limiting the enforceability of provisions
exculpating or exempting a party, or requiring indemnification of a
party for, liability for its own action or inaction, to the extent the
action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.16(d) of the Credit
Agreement, (iii) the first sentence of Section 8.09(b) of the Credit
Agreement, insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the
Credit Agreement and (iv) the waiver of inconvenient forum set forth in
Section 8.09(c) of the Credit Agreement with respect to proceedings in
the United States District Court for the Southern District of New
York..
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
Opinion of Special New York Counsel to Chase
<PAGE>
-3-
At the request of our client, this opinion letter is, pursuant
to Section 4.01(c) of the Credit Agreement, provided to you by us in our
capacity as special New York counsel to Chase and may not be relied upon by any
Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
RJW/CDP
Opinion of Special New York Counsel to Chase
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE CONSOLIDATED FINANCIAL STATEMENTS OF INCOME
AND THE CONSOLIDATED BALANCE SHEETS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 42,512
<SECURITIES> 0
<RECEIVABLES> 887,232 <F1>
<ALLOWANCES> 122,880
<INVENTORY> 53,403 <F2>
<CURRENT-ASSETS> 0 <F4>
<PP&E> 496,664 <F3>
<DEPRECIATION> 0 <F3>
<TOTAL-ASSETS> 2,151,111
<CURRENT-LIABILITIES> 0 <F4>
<BONDS> 1,440,183 <F5>
<COMMON> 1,031 <F6>
0
1,027 <F6>
<OTHER-SE> 392,945 <F7>
<TOTAL-LIABILITY-AND-EQUITY> 2,151,111
<SALES> 123,087
<TOTAL-REVENUES> 475,423
<CGS> 96,295
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 191,451 <F8>
<LOSS-PROVISION> 7,775
<INTEREST-EXPENSE> 87,670
<INCOME-PRETAX> 92,232
<INCOME-TAX> 39,361
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 52,871
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> CONSISTS OF DIRECT FINANCE LEASE RECEIVABLES OF 515,587, LEVERAGED LEASE
RECEIVABLES OF 114,547, AND SECURED LOANS OF 257,098.
<F2> CONSISTS OF ASSETS HELD FOR SALE OR LEASE OF 21,304 AND TECHNOLOGY
EQUIPMENT INVENTORY OF 32,099.
<F3> CONSISTS OF COST OF EQUIPMENT LEASED TO OTHERS UNDER OPERATING LEASES,
NET OF DEPRECIATION.
<F4> GATX CAPITAL CORPORATION HAS AN UNCLASSIFIED BALANCE SHEET.
<F5> CONSISTS OF SENIOR TERM NOTES OF 1,061,600, OBLIGATIONS UNDER
CAPITAL LEASES OF 8,633, AND NONRECOURSE OBLIGATIONS OF 369,950.
<F6> PAR VALUE ONLY.
<F7> CONSISTS OF RETAINED EARNINGS OF 242,363, ADDITIONAL PAID-IN CAPITAL
OF 151,902, UNREALIZED GAINS ON MARKETABLE EQUITY SECURITIES, NET OF TAX
OF 4,190 AND FOREIGN CURRENCY TRANSLATION ADJUSTMENT OF (5,510).
<F8> CONSISTS OF OPERATING LEASE EXPENSE OF 101,403, SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES OF 87,618, AND OTHER EXPENSES OF 2,430.
</FN>
</TABLE>
