SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 11
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Marietta Corporation
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
56763410
(CUSIP Number)
David P. Levin, Esq.
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 18, 1995
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box: /_/
Check the following box if a fee is being paid with this
statement: /_/
PAGE
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Amendment No. 11
to
Schedule 13D
This Amendment amends the Schedule 13D, dated January 20,
1995, as amended by Amendment No. 1 thereto dated February 15,
1995, Amendment No. 2 thereto dated March 6, 1995, Amendment
No. 3 thereto dated April 3, 1995, Amendment No. 4 thereto
dated April 14, 1995, Amendment No. 5 thereto dated April 19,
1995, Amendment No. 6 thereto dated May 10, 1995, Amendment
No. 7 thereto dated May 11, 1995, Amendment No. 8 thereto
dated May 17, 1995, Amendment No. 9 thereto dated July 6, 1995
and Amendment No. 10 thereto dated August 1, 1995 (the "Schedule
13D"), filed by Dickstein & Co., L.P., Dickstein International
Limited, Dickstein Partners, L.P., Dickstein Partners Inc., Mark
Dickstein, Calibre Capital Advisors, Inc. and Howard R. Shapiro,
with respect to the Common Stock, $.01 par value, of Marietta
Corporation (the "Company"). Notwithstanding this Amendment, the
Schedule 13D speaks as of its respective dates. Capitalized
terms used without definition have the meanings assigned to them
in the Schedule 13D.
Item 4 of the Schedule 13D, "Purpose of the Transaction,"
is hereby amended by adding the following at the end thereof:
"On August 21, 1995, Dickstein Inc. issued a press release
concerning a commitment from the CIT Group/Business Credit, Inc.
to finance the self-tender that Dickstein Inc. has proposed that
the Company undertake. A copy of the press release is attached
as Exhibit 19 and incorporated herein by reference. A copy of
the commitment letter of CIT is attached as Exhibit 20 and
incorporated herein by reference."
Item 7 of the Schedule 13D, "Exhibits," is hereby amended
by adding the following Exhibit:
Exhibit 19 Press Release, dated August 21, 1995.
Exhibit 20 Commitment Letter of CIT.
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SIGNATURE
After reasonable inquiry and to the best knowledge and
belief of the undersigned, the undersigned certify that the
information set forth in this Statement is true, complete and
correct.
Date: August 21, 1995
DICKSTEIN & CO., L.P.
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
general partner of Dickstein
Partners, L.P., the general partner
of Dickstein & Co., L.P.
/s/ Alan Cooper
Name: Alan Cooper
DICKSTEIN INTERNATIONAL LIMITED
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
agent of Dickstein International
Limited
/s/ Alan Cooper
Name: Alan Cooper
DICKSTEIN PARTNERS, L.P.
By: Alan Cooper, as Vice President
of Dickstein Partners Inc., the
general partner of Dickstein
Partners, L.P.
/s/ Alan Cooper
Name: Alan Cooper
3
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DICKSTEIN PARTNERS INC.
By: Alan Cooper, as Vice President
/s/ Alan Cooper
Name: Alan Cooper
/s/ Mark Dickstein
Mark Dickstein
CALIBRE CAPITAL ADVISORS, INC.
By: Howard R. Shapiro, as
President
/s/ Howard R. Shapiro
Name: Howard R. Shapiro
/s/ Howard R. Shapiro
Howard R. Shapiro
4
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FOR IMMEDIATE RELEASE
Contact: Stanley J. Kay
MacKenzie Partners, Inc.
(212) 929-5500
DICKSTEIN PARTNERS OBTAINS CIT COMMITMENT
TO FINANCE $16 MILLION SELF-TENDER BY MARIETTA CORP.
NEW YORK, NEW YORK, AUGUST 21, 1995 -- Dickstein
Partners Inc. announced today that it and Calibre Capital
Advisors, Inc. had received a commitment from The CIT
Group/Business Credit, Inc. to finance the self-tender offer that
Dickstein Partners has proposed that Marietta Corporation
(NASD: MRTA) undertake. Dickstein Partners is presently seeking
to unseat Marietta's incumbent directors at the annual meeting
scheduled for August 31. As indicated in the proxy materials
Dickstein Partners mailed last week to Marietta's shareholders,
Dickstein Partners' slate of director nominees proposes to cause
Marietta to offer to pay an aggregate of $16 million to
repurchase Marietta shares at a price between $8.00 and $9.00 per
share in a "Dutch auction" tender offer.
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The CIT commitment is for $27 million of five-year
financing, consisting of a $16 million revolving credit facility
and an $11 million term loan. Approximately $20 million of the
$27 million of committed financing (together with a portion of
Marietta's existing cash and marketable securities) is expected
to be utilized to fund the proposed self-tender offer, to
refinance approximately $7.2 million of existing indebtedness
(thereby freeing $2.6 million of restricted cash), and pay
related fees and expenses. The balance of the financing would be
available for working capital needs and other corporate purposes.
The credit agreement will contain customary provisions as to
interest, fees, prepayments, representations, covenants and
defaults.
The financing is conditioned upon the election of
Dickstein Partners' nominees to a majority of the Marietta board.
The financing is subject to other, customary conditions,
including satisfactory completion of CIT's due diligence; the
execution of definitive loan documentation satisfactory to CIT
not later than December 1, 1995; final approval of CIT's credit
committee; and there being not less than $3 million of unutilized
availability under the revolving credit facility's borrowing base
on the closing date. Dickstein Partners will soon be filing with
the S.E.C. an amended 13D statement that will include a copy of
the CIT commitment letter.
Mark Dickstein, President of Dickstein Partners,
stated:
"The issuance of the commitment letter by CIT verifies
our previously stated confidence that the self-tender offer that
we have proposed is financeable. Since the incumbent directors
are actively opposing any self-tender in their own proxy
materials, Marietta's shareholders face a clear choice between
director slates at the August 31 meeting."
Dickstein Partners' proxy materials can be obtained
through MacKenzie Partners, Inc., (212) 929-5500 (call collect)
or 800-322-2885.
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The CIT Group/Business Credit, Inc.
1211 Avenue of the Americas
New York, New York 10036
August 17, 1995
Dickstein Partners Inc.
9 West 57th Street
New York, New York 10019
Calibre Capital Advisors, Inc.
66 East 80th Street
New York, New York 10021
Re: Marietta Corp.
Gentlemen:
Dickstein Partners Inc., a Delaware corporation
("Dickstein"), and Calibre Capital Advisors, Inc., a New York
corporation ("Calibre" and together with Dickstein, the
"Investors" and each an "Investor") have advised The CIT
Group/Business Credit, Inc. ("CIT") that (i) they are investors
in Marietta Corp., a Delaware corporation ("Marietta"), (ii)
Dickstein is currently soliciting proxies to elect its nominees
as the board of directors of Marietta and (iii) if such directors
are so elected, they intend to cause Marietta to repurchase
shares of its outstanding common stock at an aggregate purchase
PAGE
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Dickstein Partners Inc.
Calibre Capital Advisors, Inc.
August 17, 1995
Page 2
price not in excess of $16,200,000. The Investors have also
advised CIT that, in such event, Marietta will require financing
for such share repurchases and that Marietta and/or its
subsidiaries (collectively, the "Companies") will require
financing for general working capital purposes and the Investors
have requested CIT to provide such financing. CIT is pleased to
advise you of its commitment to provide the Companies with a $16
million revolving credit facility, which will include a $2
million letter of credit subfacility, and a $11 million term
loan, such facility and loan to be allocated by CIT among the
Companies based upon the results of its due diligence
(collectively, the "Financing Facilities"), substantially on the
terms and conditions set forth in the Outline of Proposed Terms
and Conditions attached hereto as Exhibit A (the "Term Sheet").
The Financing Facilities will be guaranteed by all subsidiaries
of the Companies and will be secured by substantially all assets
of the Companies and their subsidiaries. CIT's commitment to
provide the Financing Facilities is subject in all respects to
satisfaction of the terms and conditions contained in this
commitment letter and in the Term Sheet.
Each of the Investors acknowledges that the Term Sheet
is intended as an outline only and does not purport to summarize
all the conditions, covenants, representations, warranties and
other provisions which would be contained in definitive legal
documentation for the Financing Facilities. CIT's commitment to
provide the Financing Facilities is subject to negotiation and
execution of definitive loan documents in form and substance
satisfactory to CIT and its counsel.
As you are aware, CIT has not had the opportunity to
complete its business due diligence analysis and review or its
legal due diligence analysis and review with respect to the stock
repurchase transaction, the Investors and the Companies and their
subsidiaries. CIT's willingness to participate in the financing
described in this letter is therefore subject to the completion
of such analysis and review and its satisfaction with the results
thereof. Furthermore, if CIT discovers information not
previously known to it which CIT believes is materially negative
information with respect to the business, operations, assets,
liabilities, condition (financial or otherwise) or prospects of
the Investors or the Companies and their subsidiaries, CIT may,
in its sole discretion, suggest alternative financing amounts or
structures that assure adequate protection for it or decline to
provide the proposed financing. In any such case, CIT shall not
PAGE
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Dickstein Partners Inc.
Calibre Capital Advisors, Inc.
August 17, 1995
Page 3
be responsible or liable for any damages which may be alleged as
a result of its failure to provide the Financing Facilities.
By their execution hereof and their acceptance of the
commitment contained herein, the Investors, jointly and
severally, agree to indemnify and hold harmless CIT and each of
its assignees, their affiliates and their respective directors,
officers, employees and agents (each an "Indemnified Party") from
and against any and all losses, claims, damages, liabilities or
other expenses to which such Indemnified Party may become
subject, insofar as such losses, claims, damages, liabilities (or
actions or other proceedings commenced or threatened in respect
thereof) or other expenses arise out of or in any way relate to
or result from the stock repurchases, this letter or the
extension of the Financing Facilities contemplated by this
letter, or in any way arise from any use or intended use of this
letter or the proceeds of any of the Financing Facilities
contemplated by this letter, and the Investors, jointly and
severally, agree to reimburse each Indemnified Party for any
legal or other expenses incurred in connection with
investigating, defending or participating in any such loss,
claim, damage, liability or action or other proceeding (whether
or not such Indemnified Party is a party to any action or
proceeding out of which indemnified expenses arise), but
excluding therefrom all expenses, losses, claims, damages and
liabilities which are finally determined in a non-appealable
decision of a court to have resulted solely from the gross
negligence or willful misconduct of the Indemnified Party. In
addition, the Investors, jointly and severally, agree (i) to pay
to CIT the fees and the deposit described in the letter
agreement, dated the date hereof (the "Fee/Deposit Letter"),
between the Investors and CIT (in the amounts and at the times
expressly provided for therein), and (ii) to reimburse CIT for
all reasonable fees and expenses (the "Expenses") incurred by or
on behalf of CIT in connection with the negotiation, preparation,
execution and delivery of this commitment letter, the Fee/Deposit
Letter, the Term Sheet and any and all definitive documentation
relating hereto and thereto, including, but not limited to, the
reasonable fees and expenses of counsel to CIT. The obligations
of the Investors under this paragraph shall remain effective even
if definitive documentation is not executed and notwithstanding
any termination of this commitment letter.
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Dickstein Partners Inc.
Calibre Capital Advisors, Inc.
August 17, 1995
Page 4
Each of the Investors represents and warrants that (i)
all written information and other materials concerning the
Companies or any of the Investors and their affiliates and
subsidiaries (collectively, the "Information") which has been, or
is hereafter, made available by, or on behalf of, any of the
Investors is, or when delivered will be, when considered as a
whole, complete and correct in all material respects and does
not, or will not when delivered, contain any untrue statement of
material fact or omit to state a material fact necessary in order
to make the statements contained therein not misleading in light
of the circumstances under which such statement has been made and
(ii) to the extent that any such information contains projec-
tions, such projections were prepared in good faith on the basis
of (X) assumptions, methods and tests stated therein which are
believed by the Investors to be reasonable and (Y) information
believed by the Investors to have been accurate based upon the
information available to the Investors at the time such
projections were furnished to CIT.
The Investors are not authorized to show or circulate
this letter or to disclose the terms hereof to any other person
or entity (other than their legal and financial advisors in
connection with their evaluation hereof) until such time as the
Investors have accepted this letter as provided in the
immediately succeeding paragraph. If this letter is not accepted
by the Investors as provided in the immediately succeeding
paragraph, the Investors are directed to immediately return this
letter (and any copies hereof) to CIT. If this letter is so
accepted, the Investors and their advisors are authorized to
disclose the terms (as well as CIT's issuance) hereof (or file
copies hereof) in any public filings or announcements, provided
that the Investors shall first give CIT prior written notice
thereof.
The offer made by CIT in this commitment letter shall
remain in effect until August 21, 1995 at which time it will
expire unless prior thereto CIT has received (A) a copy of the
Fee/Deposit Letter and this commitment letter, in each case
signed by the Investors accepting this commitment letter and the
Term Sheet and (B) in funds immediately available, payment of the
fees then due and payable under the Fee/Deposit Letter.
PAGE
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Dickstein Partners Inc.
Calibre Capital Advisors, Inc.
August 17, 1995
Page 5
The commitment by CIT to provide the Financing
Facilities shall expire at 5:00 p.m. (New York time) (i) on
October 15, 1995, unless on or prior to such date Marietta shall
have agreed in writing to the terms and conditions contained in
this Commitment Letter, the Term Sheet and the Fee/Deposit Letter
and (ii) on December 1, 1995, unless on or prior to such date,
definitive loan documentation shall have been agreed to in
writing by all parties on or prior thereto. If Marietta so
agrees in writing to the terms and conditions contained in this
Commitment Letter, the Term Sheet and the Fee/Deposit Letter, the
obligations of the Investors hereunder and thereunder shall
thereupon terminate and be superseded in all respects by the
obligations of Marietta to CIT.
Should the terms and conditions of the offer contained
herein meet with your approval, please indicate your acceptance
by signing and returning a copy of this letter to CIT and paying
in immediately available funds to CIT the fees due and payable
under the Fee/Deposit Letter.
The commitment letter, including the attached Term
Sheet and the Fee Deposit Letter, (a) supersedes all prior
discussions, agreements, commitments, arrangements, negotiations
or understandings, whether oral or written, of the parties with
respect thereto, (b) shall be governed by the law of the State of
New York, without giving effect to the conflict of laws
provisions thereof, and (c) shall be binding upon CIT, the
Investors and their respective successors and assigns. This
PAGE
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Dickstein Partners Inc.
Calibre Capital Advisors, Inc.
August 17, 1995
Page 6
commitment letter may be amended, modified or waived only in a
writing signed by the parties hereto.
Very truly yours,
THE CIT GROUP/BUSINESS CREDIT, INC.
By:/s/ Carl A. Toriello
Name:
Title:
Agreed and accepted on this
18th day of August, 1995:
DICKSTEIN PARTNERS INC.
By:/s/ Samuel L. Katz
Name:
Title:
CALIBRE CAPITAL ADVISORS, INC.
By:/s/ Howard R. Shapiro
Name:
Title:
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Exhibit A
MARIETTA CORP.
Outline of Proposed Terms and Conditions
This Outline of Proposed Terms and Conditions is part of the
Commitment Letter, dated August 17, 1995 (the "Commitment
Letter"), addressed to Dickstein Partners, L.P. and Calibre
Capital Advisors by The CIT Group/Business Credit, Inc. and is
subject to the terms and conditions of the Commitment Letter.
Capitalised terms used herein shall have the meanings set forth
in the Commitment Letter unless otherwise defined herein.
BORROWERS: Marietta Corp., a Delaware corporation
("Marietta"), and/or its subsidiaries.
LENDER: The CIT Group/Business Credit, Inc. ("CIT").
FINANCING A $16 million five year revolving credit
FACILITIES: facility, with a sublimit of $2 million
for letters of credit (the "Revolving Credit
Facility") and a $11 million five year term
loan (the "Term Facility" and together with
the "Revolving Credit Facility," the
"Financing Facilities"). The Financing
Facilities shall be allocated by CIT among
the Borrowers based upon the results of its
due diligence. All obligations of the
Borrowers to CIT in connection with the
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Financing Facilities shall be unconditionally
guaranteed by each subsidiary of the
Borrowers and all loans to Borrowers (other
than Marietta) shall be unconditionally
guaranteed by Marietta.
BORROWING BASE: Aggregate advances and letters of credit
under the Revolving Credit Facility will be
limited to the lesser of (i) $16 million and
(ii) the Borrowing Base. The Borrowing Base
shall be equal to the product of (A) the
aggregate value of eligible accounts
receivable and eligible inventory and (B) the
Advance Rates. Each Borrower that is
allocated a portion of the Revolving Credit
Facility will have a separate Borrowing Base
and the criteria for eligible accounts
receivable and eligible inventory and the
Advance Rates will be determined by CIT after
its completion of its due diligence with
respect to the Borrowers. In the case of
eligible accounts receivable, the Advance
Rate will not exceed 85% and, in the case of
eligible inventory, the Advance Rate will not
exceed 50%. In addition, a reserve to the
Borrowing Base may be established by CIT with
respect to potential liability from pending
lawsuits involving the Borrowers and/or the
share repurchases.
LETTERS OF CREDIT: Letters of Credit will be issued for the
account of the Borrowers by a bank selected
by CIT and reasonably acceptable to the
Borrowers and shall have an expiry date that
(i) does not exceed one year from the date of
issuance of such letter of credit and (ii) is
not later than fifteen (15) days prior to the
maturity date of the Revolving Credit
Facility, unless, in the case of clause (ii),
on or prior to such expiry date such letters
of credit are cash collateralized in an
amount equal to 105% of the face amount of
such letters of credit. The Borrowers will
be bound by the usual and customary terms
contained in the letter of credit issuance
documentation of the issuing bank and CIT.
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LETTER OF CREDIT A fee equal to two and one-half percent
FEE: (2-1/2%) per annum, payable monthly in
arrears, of the average daily face amount of
all letters of credit outstanding, as well as
the issuing bank's and CIT's customary letter
of credit fees and charges.
MATURITY: All loans outstanding under the Revolving
Credit Facility will be payable in full on
the fifth anniversary of the closing date.
The Term Facility will amortize in quarterly
installments aggregating (i) $750,000 in the
first year, (ii) $1,250,000 in the second
year, (iii) $2,000,000 in the third and
fourth years, and (iv) $5,000,000 in the
fifth year.
INTEREST: At the option of the Borrowers, interest on
outstanding loans under the Revolving Credit
Facility will be (i) Chemical Bank's prime
rate (the "Prime Rate") plus one percent
(1%) or (ii) Adjusted LIBOR plus two and
one-half percent (2-1/2%). At the option of
the Borrowers, interest on all outstanding
loans under the Term Facility will be (i) the
Prime Rate plus one and one-quarter percent
(1-1/4%) or (ii) Adjusted LIBOR plus two and
three quarters percent (2-3/4%). Interest
and all fees will be payable based on a 360
day year.
MANDATORY Upon the delivery of their audited financial
PREPAYMENT; statements each year, the Borrowers shall
EXCESS CASH FLOW: make a mandatory prepayment of the loans
under the Term Facility in an amount equal to
50% of Excess Cash Flow. Excess Cash Flow
shall be determined by CIT in accordance with
its customary criteria after the completion
of its due diligence. All such prepayments
shall be applied (i) 75% to installments of
the term loan in the inverse order of
maturity and (ii) 25% to installments of the
term loan in the direct order of maturity.
FEES: Unused Line Fee 1/2 of 1% p.a.
Collateral Management Fee $36,000 p.a.
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EARLY TERMINATION Subject to customary indemnification for
FEE: breakage with respect to LIBOR loans, the
facilities are prepayable at any time,
without penalty or premium, except that upon
any termination of the Financing Facilities
by the Borrowers prior to an anniversary date
of the closing date CIT shall be entitled to
an early termination fee equal to the average
daily revolving loan balance during the term
of the Financing Facilities multiplied by one
and one-half percent (1-1/2%) if terminated
during the first year and three-quarters of
one percent (3/4%) if terminated during the
second year. There will be no early
termination fee thereafter.
USE OF PROCEEDS: To finance the share repurchases of
Marietta's common stock, to fund working
capital in the ordinary course of business
of the Borrowers and for other general
corporate purposes of the Borrowers.
COLLATERAL: A perfected, first and exclusive lien on all
of the Borrowers' assets (including the
assets of the subsidiaries of the Borrowers),
including without limitation, stock of
subsidiaries, real estate, leaseholds,
inventory, receivables, equipment, patents,
tradenames, trademarks, other intellectual
property and licenses, subject to permitted
liens acceptable to CIT.
CASH MANAGEMENT: All proceeds of accounts receivable and
inventory of the Borrowers and other
Collateral shall be deposited in lockbox
accounts under the sole dominion and control
of CIT. All funds deposited in such lockbox
accounts will be transferred to CIT on each
business day and applied to repay the out-
standing obligations of the Borrowers. No
funds of any subsidiary or affiliate of the
Borrowers that is not a borrower shall be
deposited in such lockbox accounts or
commingled with the funds contained therein.
CONDITIONS The obligation of CIT to make loans will be
PRECEDENT: subject to customary conditions precedent
including, without limitation, the following
special conditions precedent:
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1. CIT shall have been granted a perfected,
first priority lien on all Collateral,
subject to permitted liens acceptable
to CIT, and shall have received UCC, tax
and judgment lien searches evidencing
the absence of any other liens on the
Collateral.
2. The Borrowers shall have aggregate
minimum Borrowing Base availability of
$3,000,000 on the date of the first
advance under the Revolving Credit
Facility.
3. An opinion from the Borrowers' outside
counsel as to such matters as CIT and
its counsel may request.
4. Insurance satisfactory to CIT, such
insurance with respect to the Collateral
to name CIT as loss payee.
5. Receipt by CIT of an audit of the books
and records of the Borrowers, the
results of which shall be satisfactory
to CIT, and CIT's satisfaction with the
results of its review with respect to
material contracts, intellectual
property, ERISA and tax matters,
accounting matters and labor matters of
the Borrowers and their subsidiaries.
6. CIT's satisfaction with the cash
management system of the Borrowers.
7. Final approval of CIT's credit
committee.
8. Receipt by CIT of a report reviewing the
Borrowers' potential environmental
liabilities and CIT's comfort with those
liabilities.
9. A majority of the Board of Directors of
Marietta shall have been designated by
Dickstein and such Board of Directors
shall have approved the stock
repurchases.
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10. The aggregate purchase price of the
shares of its common stock repurchased
by Marietta shall not exceed $16,200,000
and the average purchase price per share
shall not exceed $9.
11. Receipt by CIT of an appraisal
containing the orderly liquidation value
of the equipment and real estate of the
Borrowers, which value shall be satis-
factory to CIT.
12. There shall have occurred no adverse
change which CIT deems material in the
condition (financial or otherwise),
operations, performance, properties or
prospects of the Investors, or of the
Borrowers and their subsidiaries taken
as a whole; and there shall have
occurred no adverse change which CIT
deems material in the financial
markets generally since the date of the
Commitment.
13. All necessary governmental and third
party approvals in connection with the
stock repurchases, or in connection
with the financing therefor provided
by CIT, shall have been obtained and
remain in effect, and all applicable
waiting periods shall have expired
without any action being taken by any
court or other competent authority
which restrains, prevents or imposes
materially adverse conditions upon, the
stock repurchases.
14. There shall exist no claim, action,
suit, investigation, litigation or
proceeding (including, without
limitation, shareholder or derivative
litigation) pending or threatened in any
court or before any arbitrator or
governmental instrumentality which
relates to the Financing Facilities or
which, in the opinion of the CIT, has
any reasonable likelihood of having a
material adverse effect on (i) the
condition (financial or otherwise),
operations, business, properties or
prospects of the Borrowers and their
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subsidiaries taken as a whole or (ii)
the stock repurchases or the Financing
Facilities.
15. All loans made by CIT shall be in full
compliance with all applicable
requirements of law, including
Regulations G, T, U and X of the
Board of Governors of the Federal
Reserve System, and the stock
repurchases shall be made in compliance
with all relevant federal and state
securities laws.
16. CIT shall have received such financial
and other information regarding the
Borrowers and their subsidiaries as
CIT may request.
REPRESENTATIONS Usual representations and warranties,
AND WARRANTIES: including, but not limited, to corporate
existence and good standing, authority to
enter into loan documentation, governmental
approvals, non-violation of other agreements,
financial statements, litigation, compliance
with environmental pension and other laws,
taxes, insurance, absence of material
adverse change, absence of default or
unmatured default and priority of CIT's
liens.
COVENANTS: Usual covenants, including, but not limited
to, provision of financial statements,
notices of litigation, defaults and
unmatured defaults and other information,
compliance with laws, inspection of
properties, books and records, compliance
with Borrowing Base, maintenance of
insurance, limitations with respect to
liens and encumbrances, dividends and
retirement of capital stock, guarantees,
sale and lease back transactions,
consolidations and mergers, investments,
capital expenditures, loans and advances,
indebtedness, compliance with pension,
environmental and other laws, operating
leases, transactions with affiliates,
prepayment of other indebtedness and
customary financial covenants determined by
CIT based upon its due diligence.
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EVENTS OF DEFAULT: Usual events of default, including, but
not limited to, payment, cross-default,
violation of covenants, breach of representa-
tions or warranties, bankruptcy or
insolvency, judgment, ERISA, environmental
and change of control.
GOVERNING LAW: All documentation in connection with the
Financing Facility shall be governed by the
laws of the State of New York applicable to
agreements made and performed in such state.
INCREASED COSTS; The loan documents will contain customary
CHANGE IN provisions protecting CIT in the event of
CIRCUMSTANCES: unavailability of funding, illegality,
capital adequacy requirements, increased
costs and funding losses.
In addition, the terms contained in this
Outline of Proposed Terms and Conditions
and the commitment by CIT will be subject
to (i) there having occurred no change in
any law, rule or regulation applicable to
CIT or the Investors or the Borrowers and
their subsidiaries, which adversely affects
CIT's participation in the Financing
Facilities and (ii) the Investors having
paid to CIT the fees set forth in fee
letter.
8
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