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EXHIBIT 10(ee)
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REVOLVING CREDIT AGREEMENT
dated
as of December 10, 1997
among
TRW INC.
and
THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE
PAGES HEREOF
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TABLE OF CONTENTS
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PREAMBLE...................................................................................................1
SECTION 1 COMMITMENT OF THE BANKS; TYPES
OF LOANS; PROCEDURES FOR BORROWING
OR CONVERTING........................................................................1
1.1 Commitment...........................................................................1
1.2 Extension of Revolving Period Termination Date.......................................2
1.3 Various Types of Loans...............................................................2
1.4 Notice of Borrowing, Continuation, or
Conversion......................................................................2
1.5 Conversion and Continuation Procedures...............................................3
1.6 Negotiated Loans.....................................................................3
1.7 Local Currency Loans.................................................................3
1.8 Loans to Designated Subsidiaries.....................................................4
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS...........................................4
2.1 Repayment of Loans...................................................................4
2.2 Notes................................................................................4
2.3 Other Provisions of the Notes........................................................5
2.4 Recordkeeping........................................................................5
SECTION 3 INTEREST.............................................................................5
3.1 Interest Rates.......................................................................5
3.2 Interest Payment Dates...............................................................6
3.3 Interest Periods for Fixed Rate Loans................................................6
3.4 Setting and Notice of Rates..........................................................6
3.5 Computation of Interest..............................................................6
SECTION 4 FEES.................................................................................7
4.1 Commitment Fee.......................................................................7
4.2 Computation of Fees..................................................................7
SECTION 5 REDUCTION OR TERMINATION OF THE
COMMITMENTS; PREPAYMENT.........................................................7
5.1 Reduction or Termination of the Commitments..........................................7
5.2 Optional Prepayment..................................................................7
5.3 Mandatory Prepayment.................................................................7
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SECTION 6 MAKING AND APPLICATION OF PAYMENTS...................................................8
6.1 Making of Payments...................................................................8
6.2 Application of Certain Payments......................................................8
6.3 Due Date Extension...................................................................8
SECTION 7 INCREASED COSTS AND TAXES............................................................8
7.1 Increased Capital....................................................................8
7.2 Increased Costs......................................................................9
7.3 Basis for Determining Interest Rate Inadequate......................................10
7.4 Changes in Law Rendering Certain Loans Unlawful.....................................10
7.5 Funding Losses......................................................................11
7.6 Currency Indemnity..................................................................11
7.7 Increased Tax Costs.................................................................12
SECTION 8 WARRANTIES..........................................................................12
8.1 Corporate Organization..............................................................12
8.2 Authorization; No Conflict..........................................................12
8.3 Validity and Binding Nature.........................................................13
8.4 Financial Statements................................................................13
8.5 Litigation..........................................................................13
8.6 Compliance with ERISA...............................................................13
8.7 Environmental Matters...............................................................13
8.8 Taxes...............................................................................14
8.9 Government Regulation...............................................................14
SECTION 9 COVENANTS...........................................................................14
9.1 Reports, Certificates and Other Information.........................................14
9.1.1 Audit Report.............................................................14
9.1.2 Quarterly Reports........................................................14
9.1.3 Compliance Certificates..................................................14
9.1.4 Current Reports..........................................................15
9.1.5 Other Information........................................................15
9.2 Net Worth...........................................................................15
9.3 Liens...............................................................................15
9.4 Sale and Leaseback..................................................................17
9.5 Mergers, Consolidations, Sales......................................................17
SECTION 10 CONDITIONS OF LENDING...............................................................18
10.1 Initial Loan to the Company.........................................................18
10.1.1 Note.....................................................................18
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10.1.2 Resolutions..............................................................18
10.1.3 Incumbency and Signatures................................................18
10.1.4 Opinion of Counsel.......................................................18
10.2 Loans to Designated Subsidiaries....................................................18
10.2.1 Resolutions..............................................................18
10.2.2 Acceptance of this Agreement.............................................19
10.2.3 Incumbency and Signatures................................................19
10.3 All Loans...........................................................................19
10.4 Conversions.........................................................................19
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT..................................................19
11.1 Events of Default...................................................................19
11.1.1 Nonpayment of Notes or Fees..............................................19
11.1.2 Nonpayment of Other Indebtedness for
Borrowed Money.........................................................19
11.1.3 Bankruptcy or Insolvency.................................................20
11.1.4 Noncompliance with Other Provisions......................................20
11.1.5 Warranties...............................................................20
11.1.6 Judgments................................................................20
11.2 Effect of Event of Default..........................................................21
SECTION 12 GUARANTY............................................................................21
SECTION 13 CERTAIN DEFINITIONS.................................................................22
SECTION 14 GENERAL.............................................................................32
14.1 Waiver; Amendments..................................................................32
14.2 Confirmations.......................................................................32
14.3 Notices.............................................................................32
14.4 Computations........................................................................33
14.5 Confidentiality.....................................................................33
14.6 Assignments and Participations......................................................34
14.6.1 Assignments..............................................................34
14.6.2 Participations...........................................................34
14.6.3 Disclosure of Information................................................35
14.7 Securities Laws.....................................................................35
14.8 Costs and Expenses..................................................................35
14.9 Governing Law.......................................................................35
14.10 Counterparts........................................................................35
14.11 Captions............................................................................36
14.12 Successors and Assigns..............................................................36
14.13 Entire Agreement....................................................................36
14.14 Appointment of Administrator........................................................36
14.15 Non-U.S. Bank Tax Information.......................................................36
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14.16 Regulation U........................................................................36
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Opinion of Counsel to the Company
SCHEDULES
SCHEDULE 8.5 Undisclosed Material Legal Proceedings
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REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of December 10, 1997 (this
"AGREEMENT"), is among TRW Inc., an Ohio corporation (the "COMPANY") and the
financial institutions listed on the signature pages hereof together with their
successors or assigns (collectively, the "BANKS" and individually, a "BANK").
Certain terms being used in this Agreement are hereinafter defined in Section
13.
W I T N E S S E T H:
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WHEREAS, the Company has requested the Banks to make certain unsecured
loans to the Company and certain Subsidiaries of the Company designated by the
Company for general corporate purposes, including without limitation for working
capital, capital expenditures, acquisitions (directly or indirectly) of assets,
stock or other ownership interests, and repurchases or redemptions of
securities; and
WHEREAS, the Banks have agreed to make such loans on the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
SECTION 1 COMMITMENT OF THE BANKS; TYPES OF LOANS;
PROCEDURES FOR BORROWING OR CONVERTING.
1.1 COMMITMENT. Subject to the terms and conditions of this Agreement,
each of the Banks, severally and for itself alone, agrees to make loans
(collectively, the "LOANS" and individually, a "LOAN") to the Company and, as
provided in Section 1.8, to any Designated Subsidiary on a revolving basis from
time to time during the period (the "REVOLVING PERIOD") from the date hereof
through the Revolving Period Termination Date, as it may be extended from time
to time pursuant to Section 1.2, in such aggregate amounts as the Company or any
Designated Subsidiary may from time to time request from such Bank; provided,
however, that the aggregate principal amount of Loans that any Bank shall be
committed to have outstanding to the Company and the Designated Subsidiaries
shall not at any one time exceed the amount set forth opposite such Bank's
signature hereto, or any subsequent amendment hereto (except to the extent
provided in Section 1.9 hereof). The foregoing commitment of each Bank to make
Loans as reduced from time to time in accordance with the terms hereof is herein
called such Bank's "COMMITMENT" and the commitments of all Banks are herein
sometimes collectively called the "COMMITMENTS." Loans may not be made after the
Revolving Period Termination Date, as it may be extended from time to time
pursuant to Section 1.2, but if the Company shall have made the election
provided in clause (ii) of Section 2.1, Loans
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outstanding at the end of the Revolving Period may thereafter be Continued or
Converted as herein provided.
1.2 EXTENSION OF REVOLVING PERIOD TERMINATION DATE. No later than 60
days prior to the Revolving Period Termination Date then in effect, the Company
may request, by written notice, that any one or more of the Banks extend the
Revolving Period Termination Date as to that Bank's Commitment for a period of
364 days commencing on the Revolving Period Termination Date then in effect.
Each Bank receiving such an extension request from the Company shall notify the
Company in writing no later than 20 days prior to the Revolving Period
Termination Date then in effect of such Bank's determination to extend or not to
extend the Revolving Period Termination Date. A notice given by a Bank to extend
the Revolving Period Termination Date pursuant to this Section 1.2 shall be
irrevocable (subject to Section 11.2). Any Bank that fails to respond to the
Company's request to extend the Revolving Period Termination Date within such
time period shall be deemed to have given notice to the Company that such Bank
does not desire to extend the Revolving Period Termination Date.
1.3 VARIOUS TYPES OF LOANS. Each Loan shall be either a Base Rate Loan,
a Domestic CD Loan, a Eurocurrency Loan, a Local Currency Loan, or a Negotiated
Loan (each herein called a "TYPE" of Loan), as the Company shall specify in the
related notice of borrowing, Continuation, or Conversion pursuant to Section 1.4
or 1.5. Domestic CD Loans, Eurocurrency Loans, Local Currency Loans, and
Negotiated Loans bearing interest at a fixed rate for a fixed period of time are
sometimes collectively called "FIXED RATE LOANS." Each Loan shall be made in
U.S. Dollars or such other currency as is requested by the Company and shall be
available at the time and for the period requested by the Company. Each Loan
shall bear interest at the rate specified in Section 3.1 and shall mature on and
be due and payable in full on the earliest of: (i) the Revolving Period
Termination Date, unless the Company shall have made the election provided for
in clause (ii) of Section 2.1 of this Agreement, (ii) the Term-Out Maturity
Date, if the Company shall have made such election; (iii) the end of an Interest
Period (unless the Loan is Continued or Converted); or (iv) such other date as
the Company and the Relevant Bank shall otherwise agree in writing. The
Eurocurrency specified in any notice of borrowing, Continuation, or Conversion
given by the Company pursuant to Section 1.4 or 1.5 shall be deemed to be
available for purposes of this Agreement, unless the Relevant Bank gives the
Company notice (which may be by telephone) no later than the earlier of (a)
12:00 noon, Cleveland time, on the second Business Day prior to the proposed
date making the Eurocurrency Loan, or (b) one hour after the Relevant Bank has
received the notice of borrowing, Continuation, or Conversion, as applicable.
The Relevant Bank's determination in good faith that a proposed Eurocurrency is
or is not available shall be final.
1.4 NOTICE OF BORROWING, CONTINUATION OR CONVERSION. The Company,
through an Authorized Person, shall give written or telephonic notice to the
Relevant Bank of each proposed borrowing from such Bank, or Conversion or
Continuation of Loans made by such Bank, by 11:00 a.m., Cleveland time, (a) on
the proposed date of
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such borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Base Rate Loans, Domestic CD Loans, or Negotiated
Loans, (b) at least two Business Days prior to the proposed date of such
borrowing, Conversion, or Continuation if such borrowing, Conversion, or
Continuation is comprised of Eurocurrency Loans (provided that at least one
Business Day prior to such written or telephonic notice of proposed nondollar
denominated Eurocurrency Loan borrowing, Continuation or Conversion, the
Company, through an Authorized Person, shall give written or telephonic notice
to the Relevant Bank of the Company's intention to request a Eurocurrency Loan),
and (c) with respect to Local Currency Loans, at least two Business Days prior
to the proposed date of such borrowing, Conversion, or Continuation or such
other period of time as is customary for the particular Local Currency. Each
such notice shall be effective upon receipt by the Relevant Bank and shall
specify the date, amount, currency, and type of borrowing and, in the case of a
borrowing comprising Fixed Rate Loans, the initial Interest Period for such
borrowing. Each notice of a Conversion or Continuation of Loans shall specify
the date and amount of such Conversion or Continuation, the Loans to be so
Converted or Continued, the type and currency of Loans to be Converted into or
Continued, and, in the case of a Conversion into or Continuation of Fixed Rate
Loans, the initial or succeeding Interest Period, as the case may be. Each
borrowing shall be on a Business Day and shall be in an aggregate amount of not
less than 1,000,000 U.S. Dollars for Base Rate Loans and not less than 5,000,000
U.S. Dollars (or the Eurocurrency Equivalent Amount) for any other type of Loan,
other than Local Currency Loans (which shall be as agreed between the Company
and the Relevant Bank).
1.5 CONVERSION AND CONTINUATION PROCEDURES. The Company may convert all
or part of any outstanding Loans to Loans of a different type, or may elect to
continue any Fixed Rate Loans for an additional Interest Period, by giving
notice to the Relevant Bank of such Conversion or Continuation within the time
periods specified in Section 1.4. If, with respect to any Fixed Rate Loan, the
Company shall not either repay the Loan in full by 2:00 p.m., Cleveland time, on
the last day of the Interest Period applicable thereto or give notice of its
intention to Convert or Continue such Fixed Rate Loan within the time periods
specified in Section 1.4, then the Company shall be deemed to have requested
that such Loan automatically be converted into a Base Rate Loan at the end of
such Interest Period (and such Loan shall automatically so Convert into a Base
Rate Loan at the end of such Interest Period). Except as provided in
Section 7.4, no Fixed Rate Loans shall be Converted on any day other than the
last day of the current Interest Period relating to such Loans.
1.6 NEGOTIATED LOANS. From time to time, the Company may request,
through an Authorized Person, and a Bank may, but shall not be obligated to,
agree to make, a Loan in U.S. Dollars bearing interest at a rate per annum, and
for a fixed period, agreed to by the Relevant Bank and the Company (each, a
"NEGOTIATED LOAN" and collectively, the "NEGOTIATED LOANS").
1.7 LOCAL CURRENCY LOANS. From time to time, the Company may request,
through an Authorized Person, and a Bank may, but shall not be obligated to,
agree to make a Loan in a Local Currency specified by the Company bearing
interest at a rate
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per annum agreed to by the Bank and the Company (each, a "LOCAL CURRENCY LOAN"
and collectively, the "LOCAL CURRENCY LOANS"). Repayments of principal of and
interest on Local Currency Loans shall be made in the currency borrowed and
shall be paid to the local office of the Relevant Bank which made the Loan. The
local office may request additional documentation of the indebtedness if
customary at the place of business of the branch; provided, however, that the
terms and conditions of that documentation shall be consistent with those set
forth in this Agreement unless unlawful or ineffective under local law.
1.8 LOANS TO DESIGNATED SUBSIDIARIES. Each Designated Subsidiary may
request, through an Authorized Person, Local Currency Loans or Eurocurrency
Loans and Convert or Continue such Loans, and shall repay the principal of and
accrued interest on such Loans, all as though the Designated Subsidiaries were
parties to this Agreement and references to the "Company" in Sections 1.3, 1.4,
1.5, 1.7, 2.1, 3.1, 3.4, 3.5, 5.2 and 6.1 shall mean and include the Designated
Subsidiaries. The Relevant Bank may request additional documentation of the
indebtedness if customary at the place of business of the Relevant Bank;
provided, however, that the terms and conditions of that documentation shall be
consistent with those set forth in this Agreement unless unlawful or ineffective
under local law.
SECTION 2 REPAYMENT OF LOANS; NOTES EVIDENCING LOANS.
2.1 REPAYMENT OF LOANS. The Company hereby promises to pay to each Bank
the aggregate unpaid principal amount of such Bank's Loans on the earliest of:
(i) the Revolving Period Termination Date, unless the
Company shall have made the election provided for in clause (ii) below;
(ii) the Term-Out Maturity Date, if the Company shall have
elected in a written notice delivered to all of the Banks no later than
15 days prior to the Revolving Period Termination Date to pay, on the
Term-Out Maturity Date, all Loans which are outstanding at the end of
the Revolving Period;
(iii) the last day of the applicable Interest Period for
such Loan (unless the Loan is Continued or Converted); or
(iv) such other date as the Company and the Relevant Bank
may agree in writing.
Repayment of any Eurocurrency Loan shall be in the same currency in which such
Loan was advanced.
2.2 NOTES. The Loans of each Bank shall be evidenced by a promissory
note (individually, a "NOTE", and collectively for all Banks, the "NOTES")
substantially in the form set forth in Exhibit A, with appropriate insertions,
dated the date of the initial
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Loan (or such earlier date as shall be satisfactory to the Relevant Bank),
payable to the order of such Bank in the principal amount of such Bank's
Commitment (or, if less, in the aggregate unpaid principal amount of all of such
Bank's Loans hereunder).
2.3 OTHER PROVISIONS OF THE NOTES. Each Note shall provide for the
payment of interest as provided in Section 3.
2.4 RECORDKEEPING. Each Bank shall record in its records, or at its
option on the schedule attached to its Note, the date, amount, and type of each
Loan made by such Bank, each repayment, Continuation, or Conversion thereof, and
the dates on which each Interest Period for each Fixed Rate Loan shall begin and
end. The aggregate unpaid principal amount so recorded shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on such Note. The
failure so to record any such amount or any error in so recording any such
amount, however, shall not limit or otherwise affect the obligations of the
Company hereunder or under any Note to repay the principal amount of the Loans,
together with all interest accruing thereon.
SECTION 3 INTEREST.
3.1 INTEREST RATES. With respect to each Loan, the Company hereby
promises to pay interest on the unpaid principal amount thereof for the period
commencing on the date of such Loan until such Loan is paid in full, as follows:
(a) At all times while such Loan is a Base Rate Loan, at a rate
per annum equal to the Base Rate from time to time in
effect;
(b) At all times while such Loan is a Domestic CD Loan, during
each Interest Period, at a rate per annum equal to the
Domestic CD Rate (Adjusted) applicable to such Interest
Period, plus the Applicable Margin;
(c) At all times while such Loan is a Eurocurrency Loan, during
each Interest Period, at a rate per annum equal to the
Eurocurrency Rate (Reserve Adjusted) applicable to such
Interest Period, plus the Applicable Margin; and
(d) At all times while such Loan is a Negotiated Loan or a Local
Currency Loan, at the rate per annum agreed to by the
Company and the Relevant Bank pursuant to Section 1.6 or
1.7, as applicable.
Notwithstanding the provisions of the preceding clauses (a), (b), (c) or (d) and
subject to Section 1.5, in the event that any principal of any Loan is not paid
when due (whether by acceleration or otherwise), after the due date of such
principal until such principal is paid, the unpaid principal amount of, and
accrued but unpaid interest on,
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Revolving Loan shall bear interest at a rate per annum equal to the higher of
the rate borne by such Loan or the Relevant Bank's Base Rate from time to time
in effect, plus 1% per annum, subject to the maximum applicable legal rate.
3.2 INTEREST PAYMENT DATES. Accrued interest on each Base Rate Loan
outstanding for 45 days or more shall be payable (i) quarterly in arrears on the
tenth day of each April, July, October, and January for the quarterly period
ended on the last day of the preceding month, and (ii) at maturity, commencing
with the earlier of such dates to occur after the date hereof. Accrued interest
on each Base Rate Loan outstanding for less than 45 days shall be payable in
full on the date such Base Rate Loan is paid in full. Except as otherwise agreed
by the Relevant Bank, accrued interest on each Fixed Rate Loan shall be payable
on the last day of the Interest Period of each such Loan (or, in the case of a
Domestic CD Loan or Negotiated Rate Loan with an Interest Period of 90 days or
longer or a Eurocurrency Loan with an Interest Period of three months or longer,
accrued interest shall be payable quarterly in arrears on the tenth day of each
April, July, October and January and on the last day of each such Interest
Period). After maturity, accrued interest on all Loans shall be payable on
demand. Interest on any Eurocurrency Loan shall be paid in the same currency in
which such Loan was advanced.
3.3 INTEREST PERIODS FOR FIXED RATE LOANS. Prior to each borrowing,
Continuation, or Conversion of Fixed Rate Loans, the Company shall specify, in
the related notice of borrowing, Continuation, or Conversion pursuant to
Sections 1.4 or 1.5, the duration of the Interest Period for such Fixed Rate
Loans. Each notice to the Relevant Bank of an Interest Period shall be in
writing or by telephone and shall be given by an Authorized Person.
3.4 SETTING AND NOTICE OF RATES. For each Loan made hereunder, the
applicable interest rate for each Interest Period or other period shall be the
rate quoted by the Relevant Bank to the Company for that particular type of
Loan. The Relevant Bank shall, upon written request of the Company, deliver to
the Company a statement showing the calculation of (i) any applicable Domestic
CD Rate (Adjusted), (ii) any applicable Eurocurrency Rate (Reserve Adjusted) or
(iii) the rate of interest per annum applicable to Negotiated Loans or Local
Currency Loans hereunder.
3.5 COMPUTATION OF INTEREST. Interest shall be computed for the actual
number of days elapsed (with interest accruing on the first day, but not the
last day, of such Loan) on the basis of (a) with respect to Domestic CD Loans
and Eurocurrency Loans, a 360 day year, (b) with respect to Base Rate Loans, a
365 or 366 day year, as the case may be, (c) with respect to Negotiated Loans, a
365 or 366 day year, as the case may be, or such other basis as is agreed to by
the Company and the Relevant Bank, and (d) with respect to Local Currency Loans,
on a basis consistent with local customs that is agreed to by the Relevant Bank
and the Company.
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SECTION 4 FEES.
4.1 COMMITMENT FEE. The Company agrees to pay to each Bank a commitment
fee, for the period from and including the date of this Agreement to the
Revolving Period Termination Date, on the daily average of the Unused Amount of
such Bank's Commitment hereunder equal to the Applicable Commitment Fee in
effect from time to time times the Unused Amount. Such commitment fee shall be
payable quarterly in arrears on the tenth day of each April, July, October, and
January (the first such payment to be made on January 10, 1998) for the
quarterly period ended on the last day of the preceding month and on the
Revolving Period Termination Date. The Company may make such payments according
to the Electronic Payment Instructions.
4.2 COMPUTATION OF FEES. Fees shall be computed for the actual number
of days elapsed on the basis of a 365 or 366 day year, as the case may be.
SECTION 5 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENT.
5.1 REDUCTION OR TERMINATION OF THE COMMITMENTS. The Company may from
time to time prior to the Termination Date on at least three Business Days'
prior written notice given by an Authorized Person to any Bank permanently
reduce the amount of such Bank's Commitment to an amount not less than the
aggregate unpaid principal amount of the Loans made by such Bank then
outstanding. Any such reduction shall be in an aggregate amount of not less than
1,000,000 U.S. Dollars, or such lesser amount of such Bank's Unused Amount then
remaining.
5.2 OPTIONAL PREPAYMENT. The Company may from time to time prepay the
Loans in whole or in part, provided that (a) an Authorized Person shall give the
Relevant Bank not less than three Business Days' prior notice thereof,
specifying the Loans to be prepaid, and the date and amount of prepayment and
(b) each partial prepayment shall be in the principal amount of 1,000,000 U.S.
Dollars (or the Eurocurrency or Local Equivalent Amount thereof) or such lesser
amount as is then outstanding on the Loan being prepaid.
5.3 MANDATORY PREPAYMENT. On each day on which the aggregate
outstanding principal amount of Loans owing to any Bank on such day exceeds
(whether as a result of currency fluctuations or otherwise) such Bank's
Commitment hereunder, the Company shall pay to such Bank on demand a mandatory
prepayment in the amount of such excess. Mandatory prepayments required by this
Section 5.3 shall be applied first to Base Rate Loans until paid in full and
then, at the Company's election and in the order specified by the Company, to
Fixed Rate Loans.
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SECTION 6 MAKING AND APPLICATION OF PAYMENTS.
6.1 MAKING OF PAYMENTS. Except as otherwise provided in Section 11.2
hereof, all payments (including those made pursuant to Section 5) of principal
of, or interest on, the Loans shall be made by the Company to the Relevant Bank
in immediately available funds in the Obligation Currency.
6.2 APPLICATION OF CERTAIN PAYMENTS. Each payment of principal on any
Loan shall be applied first to Base Rate Loans and then to such of the other
Loans as the Company shall direct by written or telephonic notice given by an
Authorized Person to the Relevant Bank on or before the date of such payment, or
in the absence of such notice, as the Relevant Bank shall determine in its
discretion.
6.3 DUE DATE EXTENSION. If any payment of principal or interest with
respect to any of the Loans or Notes falls due on a Saturday, Sunday, or other
day which is not a Business Day, then such due date shall be extended to the
next following Business Day (except as provided in the last sentence of the
definition of Interest Period), and additional interest shall accrue and be
payable for the period of such extension.
SECTION 7 INCREASED COSTS AND TAXES.
7.1 INCREASED CAPITAL.
(a) If, after the date of this Agreement, the adoption of any
applicable law, rule, or regulation regarding capital
adequacy, or any change therein, or change in the
interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any
such authority, central bank, or comparable agency, has the
effect of reducing the rate of return on such Bank's capital
as a consequence of its obligations hereunder to a level
below that which such Bank would have achieved but for such
adoption, change, or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to
time within 15 days after demand by such Bank, the Company
shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction; provided,
that, no Bank shall request, and the Company shall not be
obligated to pay, any amounts in excess of the amounts
charged by such Bank to similarly situated borrowers of such
Bank under revolving credit facilities similar to the one
provided herein. Notwithstanding the foregoing, a Bank shall
not be entitled to compensation from the Company for any
such additional amounts incurred more than 30 days before
the date on which the Bank notifies the Company of any event
which would entitle the Bank to compensation pursuant to
this Section 7.1.
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(b) Each Bank will promptly notify the Company of any event of
which it has knowledge that will entitle such Bank to
compensation pursuant to this Section 7.1, together with a
certificate signed by an authorized officer of the Bank
setting forth the basis of such demand and certifying that
the amounts demanded hereunder are not in excess of the
amounts charged by such Bank to similarly situated borrowers
of such Bank under revolving credit facilities similar to
the one provided herein. The Bank will designate a different
lending office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank or contrary to its stated
policies. The Bank's certification of the additional amount
or amounts to be paid to it hereunder shall be conclusive in
the absence of demonstrable error. In determining such
amount, such Bank may use reasonable averaging and
attribution methods.
7.2 INCREASED COSTS. If, after the date hereof, the adoption of any
applicable law, rule, or regulation or any change therein, or any change in the
interpretation or administration thereof, or compliance by any Bank with any
request, or directive (whether or not having the force of law) of any such
authority, central bank, or comparable agency,
(a) shall subject any Bank to any tax, duty, or other charge
with respect to its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans, or shall change the
basis of taxation of payments to any Bank of the principal
of or interest on its Fixed Rate Loans or any other amounts
due under this Agreement in respect of its Fixed Rate Loans
or its obligation to make Fixed Rate Loans (except for the
imposition of any tax or changes in the rate of tax imposed
on the overall income of such Bank); or
(b) shall impose, modify, or deem applicable any reserve
(including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System, but
excluding any reserve included in the determination of
interest rates pursuant to Section 3), special deposit, or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank;
and as a result of any of the foregoing the cost to such Bank of making or
maintaining any Fixed Rate Loan is increased (or a cost is imposed on such
Bank), or the amount of any sum received or receivable by such Bank under this
Agreement or under its Notes with respect thereto is reduced, then within 15
days after demand by such Bank (which demand shall be accompanied by a statement
setting forth the basis of such demand), the Company shall pay directly to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or such reduction. Notwithstanding the foregoing, a Bank shall
not be entitled to any compensation from
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the Company for any such increased cost or such reduction attributable to any
period that is more than 30 days before the date on which the Bank notifies the
Company of any event which would entitle the Bank to compensation pursuant to
this Section 7.2. No Bank is entitled to reimbursement for any amounts paid as a
result of taxes currently imposed on such Bank.
7.3 BASIS FOR DETERMINING INTEREST RATE INADEQUATE. If with respect to
any Interest Period:
(a) a Bank reasonably determines that deposits in a requested
Eurocurrency (in the applicable amounts) are not being
offered to the Bank in the relevant market for such Interest
Period requested by the Company, or a Bank otherwise
reasonably determines (which determination shall be binding
and conclusive on all parties) that by reason of
circumstances affecting the interbank eurocurrency market
adequate and reasonable means do not exist for ascertaining
the applicable Eurocurrency Rate (Reserve Adjusted); or
(b) a Bank advises the Company that the making or funding of
Eurocurrency Loans has become impracticable as a result of
an event occurring after the date of this Agreement which in
the opinion of such Bank materially affects Eurocurrency
Loans,
then: (i) the affected Bank shall promptly notify the Company of such
circumstance, (ii) so long as such circumstances shall continue the affected
Bank shall not be under any obligation to make, Continue, or Convert Loans into
Eurocurrency Loans, and (iii) on the last day of the then current Interest
Period for Eurocurrency Loans, such Eurocurrency Loans shall, unless then repaid
in full or Converted into a Loan of a different type pursuant to Section 1.5,
automatically Convert to Base Rate Loans.
7.4 CHANGES IN LAW RENDERING CERTAIN LOANS UNLAWFUL. In the event that
there occurs after the date hereof any change in applicable laws or regulations
(including the adoption of any new laws), or any change in the interpretation
of applicable laws or regulations by any governmental or other regulatory body
charged with the administration thereof, that makes it unlawful for a Bank to
make, maintain, or fund a type of Fixed Rate Loans, then (a) such Bank shall
promptly notify the Company of such circumstance, (b) the obligation of such
Bank to make, Continue, or Convert Loans into the type of Fixed Rate Loans made
unlawful for that Bank shall, upon the effectiveness of such event, be
suspended for the duration of such unlawfulness, and (c) on the last day of the
current Interest Period for Fixed Rate Loans of such type (or, in any event, if
the Bank affected by such change so requests, on such earlier date as may be
required by the relevant law, regulation, or interpretation), the Fixed Rate
Loans of such type made by such Bank shall, unless then repaid in full or
Converted into a Loan of a different type pursuant to Section 1.5,
automatically Convert to Base Rate Loans.
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7.5 FUNDING LOSSES. The Company hereby agrees that upon demand by any
Bank (which demand shall be accompanied by a statement setting forth the basis
for the calculations of the amount being claimed), the Company will indemnify
such Bank against any net loss or expense which such Bank sustains or incurs
(including, without limitation, any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund or maintain Fixed Rate Loans), as reasonably determined by such
Bank, as a result of (a) any payment or prepayment or Conversion of any Fixed
Rate Loan of such Bank on a date other than the last day of an Interest Period
for such Loan, or (b) any failure of the Company to borrow, Continue, or
Convert any Loans on a date specified therefor in a notice of borrowing (which
shall not include the Company's notice of intention to request a Eurocurrency
Loan), Continuation, or Conversion pursuant to this Agreement.
7.6 CURRENCY INDEMNITY.
(a) The obligation of the Company under this Agreement and the
Notes to make payments in Dollars or in any Eurocurrency or
Local Currency in which the Loans or any portion thereof are
outstanding (the "OBLIGATION CURRENCY") shall not be
discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent to
which such tender or recovery shall result in the effective
receipt by the Banks of the full amount of the Obligation
Currency expressed to be payable under this Agreement or the
Notes. If, for the purpose of obtaining or enforcing
judgment against the Company in any court or in any
jurisdiction, it becomes necessary to convert into any
currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "JUDGMENT
CURRENCY") an amount due in the Obligation Currency under
the Notes, the conversion shall be made, at the option of
the Relevant Bank, at the rate of exchange prevailing on the
Business Day immediately preceding the day on which the
judgment is given (such Business Day as the case may be,
being hereinafter in this Section 7.6 referred to as the
"JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, the Company agrees to
pay such additional amounts as may be necessary to ensure
that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency
which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the
rate of exchange prevailing on the Judgment Currency
Conversion Date.
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(c) Any amount due from the Company under the foregoing
subparagraph will be due as a separate debt and shall not be
affected by judgment being obtained for any other sums due
otherwise hereunder.
7.7 INCREASED TAX COSTS. The Company agrees to make all payments or
reimbursements under this Agreement free and clear of, and without deduction
for, any future taxes (including withholding taxes) imposed (except for any tax
or changes in the rate of tax imposed on overall income of any Bank) on payments
of principal, interest and fees or charges under the Agreement which are
attributable to, or represent, the application of any such tax for any time
period after the Company has received notice of such tax from such Bank. Such
Bank will use its reasonable efforts to minimize any taxes and will designate a
different lending office if such designation will avoid the need for, or reduce
the amount of, such tax(es) and will not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank or contrary to its stated
policies. In the event that the Company is required to directly pay any such
taxes, the Company agrees to furnish such Bank with official tax receipts
evidencing payment of such taxes within forty-five (45) days after the due date
for each such payment. Each Bank agrees that in the event that any such
additional amount paid or reimbursed by the Company to or for such Bank in
respect of any taxes be recovered, in whole or in part, by such Bank (by credit,
offset, deduction or otherwise), against or in computing any income, franchise
or other taxes, such Bank will promptly reimburse the Company the amount of such
recovery. A transferee of any interest in the Agreement or the Notes shall not
be entitled to the benefits of this Section 7.7 with respect to any taxes which
would not have been incurred if there had been no transfer.
SECTION 8 WARRANTIES.
The Company warrants to the Banks as of the date of this Agreement
that:
8.1 CORPORATE ORGANIZATION. The Company is a corporation duly
incorporated and in good standing under the laws of the State of Ohio and the
Company is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction of the United States where,
because of the nature of its activities or properties, such qualification is
required and where the failure to be so qualified would materially and adversely
affect the consolidated financial condition of the Company and its Consolidated
Subsidiaries taken as a whole.
8.2 AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by the Company of this Agreement and the Notes are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not contravene or conflict with any provision of
applicable law in effect on the date hereof or of the Amended Articles of
Incorporation or Regulations of the Company or of any agreement for borrowed
money or other material agreement binding upon the Company. The Company has duly
executed and delivered this Agreement.
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8.3 VALIDITY AND BINDING NATURE. This Agreement is, and the Notes when
duly executed and delivered will be, legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms.
8.4 FINANCIAL STATEMENTS. The Company's audited consolidated financial
statements as at December 31, 1996 and its unaudited consolidated financial
statements as at September 30, 1997, copies of which have been furnished to each
Bank, have been prepared in accordance with GAAP, applied on a basis consistent
with that of the preceding fiscal year, and fairly present in all material
respects the consolidated financial condition and results of operations of the
Company and its Consolidated Subsidiaries as of the dates and for the periods
indicated, as applicable, and since the dates thereof until the date of this
Agreement there has been no material adverse change in the consolidated
financial condition of the Company and its Consolidated Subsidiaries taken as a
whole.
8.5 LITIGATION. Except as set forth in Schedule 8.5, there are no
material legal proceedings, other than ordinary routine litigation incidental to
the business, to which the Company or any of its Consolidated Subsidiaries is a
party or to which any of their respective properties is subject that are
required to be disclosed in the Company's periodic reports under the Securities
Exchange Act of 1934 and that have not been so disclosed.
8.6 COMPLIANCE WITH ERISA. Each member of the controlled group of
corporations (as defined in Section 414(b) of the Internal Revenue Code of
1986), which includes the Company (the "TRW GROUP"), has (i) fulfilled its
obligations under the minimum funding standards of Part 3 of Title I of the
Employee Retirement Income Security Act of 1974 ("ERISA") and Section 412 of the
Internal Revenue Code of 1986 ("CODE") with respect to each defined benefit plan
(as defined in Section 3 (35) of ERISA) maintained by a member of the TRW Group
("PLAN") and (ii) is in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each such Plan. No
member of the TRW Group has (x) sought a waiver of the minimum funding standard
under Section 412 of the Code in respect of any Plan, (y) failed to make any
contribution or payment required to be made to a Plan or to any multi-employer
plan (as defined in Section 3 (37)(A) of ERISA) or made any amendment to any
Plan which has resulted or could result in the imposition of a lien or the
posting of a bond or other security under ERISA or the Code or (z) incurred any
liability under Title IV of ERISA other than the liability to the Pension
Benefit Guaranty Corporation for premiums under Section 4007 of ERISA.
8.7 ENVIRONMENTAL MATTERS. The Company has conducted periodic reviews
of the effect of compliance with federal, state and local requirements relating
to the discharge of materials into the environment, in the course of which it
has identified and evaluated potential liabilities and costs. The Company has
established accruals for matters that are probable and reasonably estimable as
required by FASB Statement No. 5, "Accounting for Contingencies." To the
Company's knowledge, any liability that may result from the resolution of known
environmental matters in excess
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of amounts accrued therefor will not have a material adverse effect on the
financial position of the Company.
8.8 TAXES. The Company and its Consolidated Subsidiaries have filed all
United Stated federal income tax returns and all other material tax returns
which are required to have been filed by them (subject to any available
extensions) and have paid all taxes indicated as due on such returns. The
Company has made adequate and reasonable provision for all material taxes not
yet due and payable, if any, and all material assessments, if any.
8.9 GOVERNMENT REGULATION. Neither the Company nor any of its
Consolidated Subsidiaries is registered as a public utility under the Public
Utility Holding Company Act of 1935 or as an investment company under the
Investment Company Act of 1940.
SECTION 9 COVENANTS.
Until the later of (i) the expiration or termination of the Commitments
and (ii) all obligations of the Company hereunder and under the Notes are paid
in full, the Company agrees that, unless at any time the Majority Banks shall
otherwise expressly consent in writing:
9.1 REPORTS, CERTIFICATES AND OTHER INFORMATION.
9.1.1 AUDIT REPORT. Within 120 days after each fiscal year
of the Company, the Company will provide to each Bank a copy of the Company's
Annual Report to Shareholders and its Annual Report on Form 10-K for the year
then ended, as filed with the Securities and Exchange Commission and which will
include an annual audit report of the Company, prepared on a consolidated basis
and in accordance with the Company's then current method of accounting, which
methods must be in accordance with GAAP, duly certified by independent certified
public accountants of nationally recognized standing selected by the Company.
9.1.2 QUARTERLY REPORTS. Within 60 days after each quarter
(except the last quarter) of each fiscal year of the Company, the Company will
provide to each Bank a copy of the Company's Quarterly Report on Form 10-Q for
the quarter then ended, as filed with the Securities and Exchange Commission.
9.1.3 COMPLIANCE CERTIFICATES. Contemporaneously with the
furnishing of a copy of each Annual Report on Form 10-K provided for in Section
9.1.1 and of each Quarterly Report on Form 10-Q provided for in Section 9.1.2,
the Company will provide to each Bank a duly completed certificate in the form
of Exhibit B with appropriate insertions (each such certificate called a
"COMPLIANCE CERTIFICATE"), dated not more than 10 days prior to the date
furnished, signed by an officer of the Company, showing compliance with the
Consolidated Net Worth covenant set forth in Section 9.2, and to the effect that
no Event of Default or Unmatured Event of Default
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has occurred and is continuing or, if there is any such an event, describing it
and the steps, if any, being taken to cure it.
9.1.4 CURRENT REPORTS. The Company will provide to each Bank
copies of each Current Report on Form 8-K filed by the Company with the
Securities and Exchange Commission, promptly upon the filing thereof.
9.1.5 OTHER INFORMATION. The Company will provide to a Bank
such other information concerning the Company as such Bank may reasonably
request from time to time.
9.2 NET WORTH. The Company will not permit Consolidated Net Worth to be
less than 1,600,000,000 U.S. Dollars less an amount equal to the lesser of (i)
the aggregate amount expended by the Company subsequent to December 31, 1995 for
the repurchase of its common stock and (ii) 600,000,000 U.S. Dollars.
9.3 LIENS.
(a) The Company will not, and will not permit any Domestic
Subsidiary to, directly or indirectly, create or assume any
mortgage, encumbrance, lien, pledge, charge, or security
interest of any kind (collectively and individually, a
"MORTGAGE" or "LIEN") upon or in any of its interests in any
Principal Property or upon or in any shares of capital stock
or indebtedness of any Domestic Subsidiary, whether such
interest, capital stock or indebtedness is now owned or
hereafter acquired, if such mortgage secures or is intended
to secure, directly or indirectly, the payment of any
indebtedness for money borrowed evidenced by notes, bonds,
debentures, or other written evidences of indebtedness (such
indebtedness for money borrowed being hereafter in Sections
9.3 and 9.4 collectively called "DEBT") without making
effective provision, and the Company in such case will make
or cause to be made effective provision, whereby all of the
Loans shall be secured by such mortgage equally and ratably
with any other Debt thereby secured; excluding, however,
from the operation of this Section 9.3:
(i) mortgages on any Principal Property acquired,
constructed, or improved by the Company or any
Domestic Subsidiary after July 1, 1992 which are
created or assumed contemporaneously with, or
within 120 days after, such acquisition or
completion of such construction or improvement to
secure or provide for the payment of any part of
the purchase price of such Principal Property or
the cost of such construction or improvement
incurred after July 1, 1992, or, in addition to
mortgages contemplated by clauses (ii) and (iii)
below, mortgages on any such Principal Property
existing at the time or placed thereon at the time
of acquisition or leasing thereof by the Company or
any Domestic Subsidiary, or conditional sales
agreements or other
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title retention agreements with respect to any
Principal Property now owned or leased or hereafter
acquired or leased by the Company or a Domestic
Subsidiary;
(ii) mortgages on property (including shares of capital
stock or indebtedness of a corporation) of a
corporation existing at the time such corporation
becomes a Domestic Subsidiary or is merged or
consolidated with the Company or a Domestic
Subsidiary or existing at the time of a sale,
lease, or other disposition of the properties of
such corporation (or a division thereof) or other
Person as an entirety or substantially as an
entirety (which includes the sale, lease, or other
disposition of all or substantially all the assets
thereof) to the Company or a Domestic Subsidiary,
provided that no such mortgage shall extend to any
other Principal Property of the Company or any
Domestic Subsidiary or to any shares of capital
stock or any indebtedness of any Domestic
Subsidiary;
(iii) mortgages created by the Company or a Domestic
Subsidiary to secure indebtedness of the Company or
a Domestic Subsidiary to the Company or to a Wholly
Owned Domestic Subsidiary;
(iv) mortgages in favor of the United States of America
or any State, territory or possession thereof, or
any foreign country or any department, agency,
instrumentality, or political subdivision of any of
such domestic or foreign jurisdictions to secure
partial, progress, advance, or other payments
pursuant to any contract or statute or to secure
any debt incurred for the purpose of financing all
or any part of the purchase price of, or the cost
of constructing, the property subject to such
mortgages; and
(v) mortgages for the sole purpose of extending,
renewing, or replacing (or successively extending,
renewing, or replacing) in whole or in part any
mortgage existing on July 1, 1992 or referred to in
the foregoing clauses (i) to (iv) inclusive or of
any debt secured thereby; provided, however, that
the principal amount of indebtedness secured
thereby shall not exceed the principal amount of
indebtedness so secured at the time of such
extension, renewal, or replacement, and that such
extension, renewal, or replacement mortgage shall
be limited to all or a part of the property which
secured the mortgage so extended, renewed, or
replaced (plus improvements on such property).
(b) Notwithstanding the provisions of paragraph (a) of this
Section 9.3, the Company or any Domestic Subsidiary may,
without equally and ratably
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securing all the Loans, create or assume mortgages which
would otherwise be subject to the foregoing restrictions if
at the time of such creation or assumption, and after giving
effect thereto, Exempted Indebtedness does not exceed 15% of
Consolidated Net Tangible Assets determined as of a date not
more than 90 days prior thereto.
9.4 SALE AND LEASEBACK.
(a) The Company will not, and will not permit any Domestic
Subsidiary to, sell, lease or transfer any Principal
Property owned by the Company or a Domestic Subsidiary as an
entirety, or any substantial portion thereof, to anyone
other than a Wholly Owned Domestic Subsidiary (or the
Company or a Wholly Owned Domestic Subsidiary in the case of
a Domestic Subsidiary) with the intention of taking back a
lease of such property (herein referred to as a "SALE AND
LEASEBACK TRANSACTION") except a lease for a period of not
more than 36 months by the end of which it is intended that
the use of such property by the lessee will be discontinued;
provided, that, notwithstanding the foregoing, the Company
or any Domestic Subsidiary may sell any such property and
lease it back if the net proceeds of such sale are at least
equal to the fair value (as determined by resolution adopted
by the Board of Directors of the Company) of such property,
and (i) the Company or such Domestic Subsidiary would be
entitled pursuant to paragraph (a) of Section 9.3 to create
Debt secured by a mortgage on the property to be leased in
an amount equal to the Attributable Debt with respect to
such Sale and Leaseback Transaction without equally and
ratably securing all the Loans, or (ii) if such sale or
transfer does not come within the exception provided by the
preceding clause (i), the net proceeds of such sale shall,
and in any such case the Company covenants that they will,
within 120 days after such sale, be applied (to the greatest
extent possible) either to the repayment of the Loans then
outstanding when due (whereupon the Commitments hereunder
shall be reduced, on a pro rata basis, to the extent that
such net proceeds are so applied) or to the retirement of
other Consolidated Funded Debt of the Company ranking at
least on a parity with the Loans, or in part to one or more
of such alternatives and in part to another.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 9.4, the Company or any Domestic Subsidiary may
enter into Sale and Leaseback Transactions if, at the time
of such entering into, and after giving effect thereto,
Exempted Indebtedness does not exceed 15% of Consolidated
Net Tangible Assets determined as of a date not more than 90
days prior thereto.
9.5 MERGERS, CONSOLIDATIONS, SALES. The Company shall not
consolidate with, or sell or convey all or substantially all its assets to, or
merge into, any other Person, unless (a) the Company is the surviving
corporation of such transaction; or
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(b) the Company is the nonsurviving party to a merger or consolidation, the
primary purpose of which is to effect a reincorporation of the Company under the
laws of another state.
SECTION 10 CONDITIONS OF LENDING.
The obligation of each Bank to make its Loans is subject to
the following conditions precedent:
10.1 INITIAL LOAN TO THE COMPANY. The obligation of each Bank to make
its initial Loan to the Company is, in addition to the conditions precedent
specified in Section 10.3, subject to the condition precedent that such Bank
shall have received all of the following, each duly executed and dated the date
of such Loan (or such earlier date as shall be satisfactory to such Bank), in
form and substance satisfactory to such Bank:
10.1.1 NOTE. The Note of the Company payable to the order of
such Bank, substantially in the form of Exhibit A.
10.1.2 RESOLUTIONS. Certified copies of resolutions of the
Board of Directors of the Company authorizing the Company to obtain
Loans hereunder.
10.1.3 INCUMBENCY AND SIGNATURES. A certificate of the
Secretary or an Assistant Secretary of the Company certifying the names
of the officer or officers of the Company who have signed or will sign
this Agreement, the Notes, and other documents provided for in this
Agreement to be executed by the Company, together with a sample of the
true signature of each such officer, and a certificate of authorization
setting forth each Person who is authorized to effect Loans and other
transactions hereunder, together with a sample of the true signature of
each such Authorized Person. Each Bank may conclusively rely on such
certificates until it shall have received notice to the contrary.
10.1.4 OPINION OF COUNSEL. The opinion of counsel to the
Company, substantially in the form of Exhibit C.
10.2 LOANS TO DESIGNATED SUBSIDIARIES. The obligation of each Bank to
make any Loans to any Designated Subsidiary is subject to the condition
precedent that such Bank shall have received the following:
10.2.1 RESOLUTIONS. A certified copy of the resolutions of
the appropriate governing body of the Designated Subsidiary that
requested the Loan authorizing it to obtain Loans hereunder or such
other evidence of corporate authority as is customary in the country of
domicile of the Designated Subsidiary.
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10.2.2 ACCEPTANCE OF THIS AGREEMENT. A letter signed by an
authorized officer of such Designated Subsidiary evidencing its
agreement to be bound by the terms of this Agreement with respect to
each Loan made to it hereunder.
10.2.3 INCUMBENCY AND SIGNATURES. A certificate of the
Secretary or an Assistant Secretary of the Designated Subsidiary
certifying the name and signature of the officer or officers of the
Designated Subsidiary who have signed or will sign the letter
referenced in Section 10.2.2, together with a sample of the true
signature of each such officer, and a certificate of authorization
setting forth each Person who is authorized to effect Loans and other
transactions hereunder, together with a sample of the true signature of
each such Authorized Person. Each Bank may conclusively rely on such
certificates until it shall have received notice to the contrary.
10.3 ALL LOANS. The obligation of each Bank to make any Loan hereunder
is subject to the further conditions precedent that: (a) No Event of Default or
Unmatured Event of Default has occurred and is continuing or will result from
the making of such Loan, and (b) the warranties of the Company contained in
Sections 8.1, 8.2, and 8.3, are true and correct as of the date of such
requested Loan, with the same effect as though made on the date of such Loan.
10.4 CONVERSIONS. Except for Section 10.3(a), the conditions set forth
in Sections 10.1, 10.2, and 10.3 shall not apply to the Conversion of Loans from
one type to another type or Continuation of Loans.
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT.
11.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default under this Agreement:
11.1.1 NONPAYMENT OF NOTES OR FEES. Default in the payment
when due of any principal of any Note or default in the payment when
due of interest on any Note or fees payable by the Company hereunder
and continuance of such failure to pay interest or fees for five
Business Days after written notice thereof to the Company from the Bank
to which such amounts are owed.
11.1.2 NONPAYMENT OF OTHER INDEBTEDNESS FOR BORROWED MONEY.
Default in the payment when due at maturity (subject to any applicable
grace period) or by acceleration of any other indebtedness for borrowed
money having a principal amount in excess of 50,000,000 U.S. Dollars
of, or guaranteed by, the Company ("OTHER INDEBTEDNESS"), or default in
the performance or observance of any obligation or condition with
respect to any such Other Indebtedness if such default results in the
acceleration of the maturity of any such Other Indebtedness; provided,
that, if such default shall subsequently be remedied, cured, or waived
prior to either the termination of
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Commitments or the declaration that all Loans are immediately due and
payable, in each case pursuant to Section 11.2 hereof, and as a result
the payment of such Other Indebtedness is no longer due, the Event of
Default existing hereunder by reason thereof shall likewise be deemed
thereupon to be remedied, cured, or waived and no longer in existence,
all without any further action by the parties hereto.
11.1.3 BANKRUPTCY OR INSOLVENCY. The Company generally fails
to pay, or admits in writing its inability to pay, debts as they become
due; or the Company applies for, consents to, or acquiesces in the
appointment of, a trustee, receiver, or other custodian for the Company
or for a substantial part of the property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver, or other
custodian is appointed for the Company or for a substantial part of the
property of the Company; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation proceeding is
commenced in respect of the Company and if such case or proceeding is
not commenced by the Company, it is consented to or acquiesced in by
the Company or remains for 90 consecutive days undismissed or unstayed;
or the Company takes any corporate action to authorize any of the
foregoing.
11.1.4 NONCOMPLIANCE WITH OTHER PROVISIONS. Failure by the
Company to comply with or to perform in any material respect any other
provision of this Agreement (and not constituting an Event of Default
under any of the preceding provisions of this Section 11.1) and
continuance of such failure for 30 days after written notice thereof to
the Company from the Majority Banks.
11.1.5 WARRANTIES. Any warranty made by the Company in
Sections 8 or 14.16 of this Agreement is breached or is incorrect when
made in any material respect and the Company shall fail to take
corrective actions reasonably satisfactory to the Majority Banks within
30 days after written notice thereof to the Company from the Majority
Banks, except only in the case of a breach of the warranties contained
in Section 8 or 14.16 made on the date of this Agreement, in which case
there shall be no opportunity to take corrective actions.
11.1.6 JUDGMENTS. Any final and unappealable judgment or
order from a judicial or administrative body (which order or judgment
is fully enforceable against the Company or any of its Consolidated
Subsidiaries in courts of the United States of America or any state
thereof) for the payment of money in excess of 50,000,000 U.S. Dollars
(after adjustments to reflect reductions for credits and set-offs
asserted in good faith by the Company) shall be rendered against the
Company, shall not have been discharged or vacated and shall have been
in effect, in its final and unappealable form, for a period of 30
consecutive days.
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11.2 EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
Section 11.1.3 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and all Loans and Notes shall
automatically become immediately due and payable, all without notice of any
kind; and, in the case of any other Event of Default, the Majority Banks may
declare the Commitments (if they have not theretofore terminated) to be
terminated and the Outstanding Majority Banks may declare that all Loans and
Notes shall become immediately due and payable. The Majority Banks and the
Outstanding Majority Banks shall promptly advise the Company in writing of any
such declaration. Following the declaration that all Loans and Notes are
immediately due and payable, all payments made by the Company on account of the
Loans and Notes shall be made to the Administrator, which shall distribute such
payments on a pro rata basis (in relation to the amounts of outstanding Loans)
to Banks with outstanding Loans. Following such declaration, if any Bank
receives a payment that is not on a pro rata basis, such Bank will remit to the
Administrator any amount in excess of its pro rata portion. Upon receipt of any
such remittance, the Administrator will distribute such amount to the Banks with
outstanding Loans in order that all distributions will be pro rata. The effect
as an Event of Default of any event described in Section 11.1.1 or Section
11.1.3 may be waived only by the written concurrence of the holders of 100% of
the aggregate unpaid principal amount of the Notes and the Majority Banks, and
the effect as an Event of Default of any other event described in this Section
11 may be waived by the written concurrence of the Majority Banks and the
Outstanding Majority Banks.
SECTION 12 GUARANTY.
The Company hereby unconditionally, absolutely and
irrevocably guarantees, as primary obligor and not merely as surety, the
repayment to each Relevant Bank, when due pursuant to the terms and conditions
of this Agreement, of the amount of any Loan made pursuant to this Agreement to
a Designated Subsidiary, together with accrued interest on such Loan; provided,
however, that before any amount shall be deemed due and payable pursuant to this
Section 12, the Relevant Bank must first give notice to the Company of the
nonpayment by the Designated Subsidiary, and the Company shall have five
Business Days from the receipt of such notice to cure or cause to be cured any
and all such nonpayments. The Company's obligations hereunder constitute a
guaranty of payment and not of collection merely. The Company hereby waives
notice of, and consents to, any extensions of time of payment, renewals,
compromises, settlements, releases or other indulgences from time to time
granted by the Relevant Bank in respect of Loans made to Designated
Subsidiaries. Except as otherwise provided in this Section 12, the Company
hereby waives presentment, protest, demand of payment, notice of dishonor and
all notices and demands whatsoever. The obligations of the Company hereunder
shall not be released, discharged or otherwise affected by (i) any change in the
corporate existence or constitution, structure or ownership of any Designated
Subsidiary or the Company, (ii) any insolvency, bankruptcy, reorganization or
similar proceeding affecting the Designated Subsidiary or its assets or the
Company or (iii) the existence
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of any claim, set-off or other rights which the Company may have at any time
against the Relevant Bank or any other person. If at any time any payment of any
obligation guaranteed hereunder is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy or reorganization of a Designated
Subsidiary or otherwise, the Company's obligations under this Section 12 with
respect to such payment shall be reinstated at such time as though such payment
had not been made. The Company shall not exercise any of its subrogation rights
with respect to amounts paid to a Relevant Bank pursuant to this Section 12
until all amounts guaranteed hereunder payable to such Relevant Bank have been
paid in full. Following such payment in full with regard to a Relevant Bank, the
Company shall be entitled to subrogation in the Relevant Bank's rights and, upon
the reasonable request of the Company, the Relevant Bank agrees to cooperate
with the Company in enforcement of the Company's subrogation rights, including
the transfer and delivery by the Relevant Bank to the Company of any and all
evidence of indebtedness relating to such Loan within the possession or control
of the Relevant Bank.
SECTION 13 CERTAIN DEFINITIONS.
When used herein the following terms shall have the
following meaning:
"AFFILIATE" means, with respect to a particular Person, any
Person which, directly or indirectly, controls, is controlled by, or is under
common control with, such Person. For purposes of this definition, control of a
Person shall mean the power to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"AGREEMENT" means this Agreement, as it may be amended,
modified, or supplemented and in effect from time to time.
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"APPLICABLE COMMITMENT FEE" means the percentage in effect
from time to time as set forth in the following table opposite the highest of
the then-current rating assigned to the Company's senior unsecured long-term
debt by ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") or Standard & Poor's Ratings
Group ("S&P"):
Rating Applicable
(Moody's/S&P) Commitment Fee
------------- --------------
higher than A1/A+ 0.040%
A1/A+ 0.050%
A2/A 0.060%
A3/A- 0.070%
Baa1/BBB+ 0.080%
Baa2/BBB 0.105%
Baa3/BBB- 0.130%
lower than Baa3/BBB- 0.155%
"APPLICABLE MARGIN" means, at any time, the percentage set
forth in the following table opposite the highest of the then-current rating
assigned to the Company's senior unsecured long-term debt by Moody's or S&P:
Applicable Applicable
Margin for Margin for
Rating Domestic CD Eurocurrency
(Moody's/S&P) Loans Loans
------------------------------------------------------------------------
higher than A1/A+ 0.275% 0.175%
A1/A+ 0.300% 0.200%
A2/A 0.325% 0.225%
A3/A- 0.350% 0.250%
Baa1/BBB+ 0.400% 0.300%
Baa2/BBB 0.475% 0.375%
Baa3/BBB- 0.550% 0.450%
lower than Baa3/BBB- 0.600% 0.500%
"ASSESSMENT RATE" means, for any Domestic CD Loan (and for
the purpose of computing the Domestic CD Rate (Adjusted)), the annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) applicable to
the Relevant Bank on its insured deposits under the Federal Deposit Insurance
Act, determined by annualizing the most recent assessment levied on the Relevant
Bank by the Federal Deposit Insurance Corporation (the "FDIC") with respect to
such deposits, after giving effect to the most recent rebate granted to the
Relevant Bank by the FDIC with respect to deposit insurance as well as the loss
to the Relevant Bank
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(determined in the good faith judgment of the Relevant Bank) of the use of such
rebate prior to the date credit is taken by the Relevant Bank with respect to
such rebate.
"ATTRIBUTABLE DEBT" means, as to any particular lease under
which any Person is liable at the time and at any date as of which the amount
thereof is to be determined, the lesser of (a) the fair value of the property
subject to such lease (as determined by the Directors of the Company) or (b) the
total net amount of rent required to be paid by such Person under such lease
during the remaining term thereof, discounted from the respective due dates
thereof to such date at the actual interest factor included in such rent. The
net amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"AUTHORIZED PERSON" means, as to the Company, any person
designated as such in a certificate signed by the Chief Financial Officer,
Treasurer, or Assistant Treasurer of the Company, and, as to any Designated
Subsidiary, means any person designated as such in a certificate signed by one
or more officers of the Designated Subsidiary, as authorized by resolution of
the Designated Subsidiary or otherwise by law.
"BANKS" or "BANK" - see Preamble.
"BASE RATE" means the higher of (i) the rate of interest per
annum publicly announced and in effect from time to time by the Relevant Bank at
its Domestic Office identified on the signature pages hereto as its prime, base
or reference rate for U.S. Dollar Loans or (ii) the Federal Funds Rate plus the
Applicable Margin for Eurocurrency Loans. The Base Rate shall change
simultaneously with each change in such announced prime, base or reference rate
and Federal Funds Rate, as applicable. The Base Rate may not be the lowest rate
charged by the Relevant Bank for commercial or other extensions of credit.
"BASE RATE LOAN" means any Loan of U.S. Dollars that bears
interest at or by reference to the Relevant Bank's Base Rate.
"BUSINESS DAY" means (i) in the case of a Business Day that
relates to a Eurocurrency Loan, any day of the year on which banks are open for
business in both New York and, with regard to any such Bank only, the city in
which the applicable Eurocurrency Office of such Bank is located and on which
dealings are carried on in the interbank eurocurrency market; (ii) in the case
of a Business Day that relates to a Base Rate Loan, a Domestic CD Loan, or a
Negotiated Loan, any day of the year on which banks are open for business in
both New York and, with regard to any such
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Bank only, the city in which the applicable Domestic Office of such Bank is
located; and (iii) in the case of a Business Day that relates to a Local
Currency Loan, any day of the year on which the local office of the Relevant
Bank in that locality is open for business.
"COMMITMENT(S)" means the commitments of the Banks to make
Loans hereunder; and Commitment as to any Bank shall mean the commitment of such
Bank to make Loans hereunder in an aggregate amount not to exceed the U.S.
Dollar amount set forth opposite its signature hereto or any subsequent
amendment hereto.
"COMPANY" - see Preamble.
"COMPLIANCE CERTIFICATE" - see Section 9.1.3 and Exhibit B.
"CONSOLIDATED FUNDED DEBT" means the Funded Debt of the
Company and its Consolidated Subsidiaries consolidated in accordance with GAAP.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total of all
assets of the Company and its Consolidated Subsidiaries appearing on a
consolidated balance sheet prepared in accordance with GAAP, including the
equity in and the net amount of advances to other Subsidiaries, after deducting
therefrom (without duplication of deductions) as shown on such balance sheet,
the sum of:
(i) intangible assets, including goodwill, cost of
acquired businesses in excess of recorded net
assets at acquisition dates, patents, licenses,
trademarks, trade names, copyrights, unamortized
debt discount and expense less unamortized debt
premium, and corporate organization expense (but
excluding deferred charges and prepaid expense);
(ii) any write-up of the book value of any assets (other
than equity in Subsidiaries which are not
Consolidated Subsidiaries and other than as a
result of currency revaluations) resulting from the
revaluation thereof subsequent to March 31, 1992;
(iii) all liabilities of the Company and its Consolidated
Subsidiaries other than: Funded Debt; capital
stock; surplus; surplus reserves; reserves for
deferred Federal income taxes arising from
accelerated depreciation, investment and other tax
credits, and similar provisions; and contingency
reserves not allocated for any particular purpose;
(iv) reserves for depreciation and amortization and
other reserves (other than the reserves referred to
in the preceding clause(iii)); and
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(v) any minority interest in the shares of stock and
surplus of any Consolidated Subsidiary.
"CONSOLIDATED NET WORTH" means at any date the sum of the
consolidated shareholders' investment and minority interests of the Company and
its Consolidated Subsidiaries determined as of such date. Consolidated
shareholders' investment and minority interests of the Company shall be as
included in the annual and quarterly financial statements of the Company, as
applicable.
"CONSOLIDATED SUBSIDIARY" means each Subsidiary other than
(a) any Subsidiary the accounts of which (i) are not required by GAAP to be
consolidated with those of the Company for financial reporting purposes and (ii)
were not consolidated with those of the Company in the Company's then most
recent Annual Report to Shareholders and are not intended by the Company to be
consolidated with those of the Company in its next Annual Report to
Shareholders, or (b) any Subsidiary the primary business of which consists of
financing the sale or lease of merchandise, equipment or services by the Company
or any Subsidiary or owning, leasing, dealing in or developing real property, or
providing services directly related thereto, or which is otherwise primarily
engaged in the business of a finance or real estate company.
"CONTINUE," "CONTINUATION" and "CONTINUED" shall refer to a
continuation of Loans pursuant to Section 1.5.
"CONVERT," "CONVERSION" and "CONVERTED" shall refer to a
conversion of Loans pursuant to Sections 1.5, 3.3, 7.3, or 7.4.
"DEBT" - see Section 9.3.
"DESIGNATED SUBSIDIARY" means any Subsidiary of the Company
which (i) the Company from time to time designates in writing signed by the
Chief Financial Officer, Treasurer, or Assistant Treasurer of the Company as a
Designated Subsidiary entitled to receive Eurocurrency and Local Currency Loans
hereunder and (ii) the Relevant Bank has not objected in writing to such
designation of a Designated Subsidiary within thirty (30) days of the Relevant
Bank's receipt of the Company's designation. Such designation shall contain the
address of the Subsidiary which shall be used to give notice to the Subsidiary
pursuant to Section 14.3.
"DOMESTIC CD LOAN" shall mean any Loan of U. S . Dollars
that bears interest at a rate determined by reference to the Relevant Bank's
Domestic CD Rate (Adjusted).
"DOMESTIC CD RATE" means, with respect to any Interest
Period for any Domestic CD Loan, the rate of interest determined by the Relevant
Bank to be the average (rounded upward, if necessary, to the nearest 1/100 of
1%) of the rates quoted to the Relevant Bank on the first day of such Interest
Period by two certificate of deposit dealers in New York of recognized standing
selected by the Relevant Bank for the purchase from the Relevant Bank or major
commercial banks at face value of
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certificates of deposit issued by the Relevant Bank in an amount equal or
comparable to the amount of the Domestic CD Loan and having a maturity equal to
such Interest Period; provided, that, if such quotations from such dealers are
not available to the Relevant Bank, it shall determine a reasonably equivalent
rate on the basis of another source or sources selected by it.
"DOMESTIC CD RATE (ADJUSTED)" means, with respect to any
Interest Period for any Domestic CD Loan, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Domestic CD
Domestic CD = Rate + Assessment
Rate (Adjusted) ------------- Rate
(1 - Reserve
Requirement)
"DOMESTIC OFFICE" means, with respect to any Bank, the
office of such Bank or Affiliate of such Bank, designated as such under such
Bank's signature hereto, or such other office of such Bank or Affiliate of such
Bank, as such Bank may hereafter from time to time designate as its Domestic
Office.
"DOMESTIC SUBSIDIARY" means each Consolidated Subsidiary
other than: (a) any Consolidated Subsidiary which the Directors of the Company
reasonably determine not to be material to the business or financial condition
of the Company; (b) any Consolidated Subsidiary the major portion of the assets
of which are located, or the major portion of the business of which is carried
on, outside the United States of America, its territories and possessions; (c)
any Consolidated Subsidiary which, during the 12 most recent calendar months (or
such shorter period as shall have elapsed since its organization) derived the
major portion of its gross revenues from sources outside the United States of
America; (d) any Consolidated Subsidiary the major portion of the assets of
which consists of securities or obligations, or both, of one or more
corporations (whether or not Consolidated Subsidiaries) of the types described
in the preceding clauses (b) and (c); and (e) any Consolidated Subsidiary
organized after March 31, 1992 which the Company intends shall be operated in
such manner as to come within one or more of the preceding clauses (b), (c) and
(d).
"ELECTRONIC PAYMENT INSTRUCTIONS" means the Bank Routing and
account number information identifying the account of each Bank to receive the
payment of Commitment Fees. Such Electronic Payment Instructions for each Bank
are set forth below the signature block of such Bank to this Agreement and may
be changed at any time by written notice by such Bank to the Company.
"EUROCURRENCY" means any freely transferable and convertible
currency on deposit outside the country of issuance.
"EUROCURRENCY LOAN" means any Loan of a Eurocurrency that
bears interest at a rate determined by reference to the Relevant Bank's
Eurocurrency Rate (Reserve Adjusted).
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"EUROCURRENCY OFFICE" means, with respect to any Bank, the
office of such Bank or Affiliate of such Bank, designated as such under such
Bank's signature hereto, or such other office of such Bank or Affiliate of such
Bank, as such Bank may hereafter from time to time designate as its Eurocurrency
Office. A Eurocurrency Office may be, at the option of such Bank, either a
domestic or foreign office of such Bank or a domestic or foreign office of an
affiliate of such Bank.
"EUROCURRENCY OR LOCAL CURRENCY EQUIVALENT AMOUNT" means, in
the case of a Eurocurrency or Local Currency, on any Business Day, the amount of
such currency which would be freely converted into a specified amount of U.S.
Dollars, computed at the spot buying rate for dollars of the Relevant Bank at
the close of business on such day.
"EUROCURRENCY RATE" means, with respect to any Eurocurrency
Loan for any Interest Period, the rate per annum equal to the rate per annum at
which deposits of the currency of the Loan in immediately available funds are
offered by the Eurocurrency Office of the Relevant Bank two Business Days prior
to the beginning of such Interest Period to major banks in the interbank
eurocurrency market of such Eurocurrency Office for delivery on the first day of
such Interest Period and for the number of days comprised therein and in an
amount equal or comparable to the amount of the Eurocurrency Loan of the
Relevant Bank for such Interest Period.
"EUROCURRENCY RATE (RESERVE ADJUSTED)" means, with respect
to any Eurocurrency Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined pursuant to the
following formula:
Eurocurrency Rate = Eurocurrency Rate
(Reserve Adjusted) -----------------
1-Eurocurrency Reserve
Percentage
"EUROCURRENCY RESERVE PERCENTAGE" means, with respect to
each Interest Period, that percentage (expressed as a decimal) prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining reserve requirements applicable to "Eurocurrency Liabilities"
pursuant to Regulation D or any other then applicable regulation of the Board of
Governors that prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as presently defined in Regulation D.
"EVENT OF DEFAULT" means any of the events described in
Section 11.1.
"EXEMPTED INDEBTEDNESS" means, as of any particular time,
the sum of (i) the aggregate principal amount of all then outstanding
indebtedness for borrowed money of the Company and Domestic Subsidiaries
incurred after July 1, 1992 and secured by any mortgage, security interest,
pledge or lien other than those permitted by paragraph (a) of Section 9.3 and
(ii) all Attributable Debt pursuant to Sale and Leaseback Transactions (as
defined in Section 9.4) incurred by the Company and
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Domestic Subsidiaries after July 1, 1992 at such time outstanding other than
that which is not prohibited by or is permitted pursuant to paragraph (a) of
Section 9.4.
"FEDERAL FUNDS RATE" means, for any Interest Period selected
by the Company, the average of rates for Federal funds for the Interest Period
quoted to the Relevant Bank by two leading brokers of Federal funds transactions
in New York City.
"FIXED RATE LOAN(S)" - see Section 1.3.
"FUNDED DEBT" means all indebtedness for money borrowed
having a maturity of more than 12 months from the date such indebtedness was
incurred or having a maturity of 12 months or less but by its terms being
renewable or extendable beyond 12 months from the date such indebtedness was
incurred at the option of the borrower.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time.
"INTEREST PERIOD" means, with respect to any Fixed Rate
Loan, the period commencing on the date such Loan was made, or on the date such
Loan was Converted from a Loan of a different type, or on the date of expiration
of the immediately preceding Interest Period for such Loan, and (i) ending 30,
60, 90, 120, 150, 180 days, or, if available, more than 180 days up to and
including 360 days, thereafter in the case of a Domestic CD Loan, or (ii) ending
one, two, three, or six months, or, if available, more than six months up to and
including twelve months, thereafter in the case of a Eurocurrency Loan, all as
the Company or any Designated Subsidiary may specify pursuant to Section 1.4,
1.5, or 3.3; the Interest Period for any Negotiated Loan or any Local Currency
Loan shall be as agreed by the Company or any Designated Subsidiary and the
Relevant Bank pursuant to Section 1.6 or 1.7 . Each Interest Period for a Fixed
Rate Loan that would otherwise end on a day that is not a Business Day shall end
on the next succeeding Business Day (unless such next succeeding Business Day is
the first Business Day of a calendar month, in which case with respect to a
Eurocurrency Loan such Interest Period shall end on the next preceding Business
Day).
"JUDGMENT CURRENCY" - see Section 7.6.
"JUDGMENT CURRENCY CONVERSION DATE" - see Section 7.6.
"LIEN" or "MORTGAGE" - see Section 9.3.
"LOCAL CURRENCY" means, with respect to any Local Currency
Loan, any legal currency of the nation where the Local Currency Loan is being
funded.
"LOCAL CURRENCY LOAN(S)" - see Section 1.7.
"LOANS" or "LOAN" - see Section 1.1.
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"MAJORITY BANKS" means Banks having an aggregate Percentage
of 66-2/3% or more.
"NEGOTIATED LOAN(S)" - see Section 1.6.
"NOTE(S)" - see Section 2.2 and Exhibit A.
"OBLIGATION CURRENCY" - see Section 7.6.
"OUTSTANDING MAJORITY BANKS" means Banks having 66-2/3% or
more of the aggregate principal amount of Loans outstanding.
"PERCENTAGE" means as to any Bank the percentage of such
Bank's share of the total Commitments of all Banks.
"PERSON" shall mean an individual or a corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, government (or any agency or political subdivision
thereof), or other entity of any kind.
"PRINCIPAL PROPERTY" means any single manufacturing plant,
engineering facility or research facility owned or leased by the Company or a
Domestic Subsidiary other than any such plant or facility or portion thereof
which the Board of Directors reasonably determines not to be of material
importance to the Company and its Subsidiaries taken as a whole.
"PROPRIETARY INFORMATION" - see Section 14.5.
"RELEVANT BANK" means, with respect to any Loan, the Bank
that made the Loan, and, prior to the making of such Loan or requested Loan, any
Bank that has been requested to make such Loan.
"RESERVE REQUIREMENT" means, with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the daily average during
such Interest Period of the aggregate reserve requirement (including all basic,
supplemental, marginal, and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements
during such Interest Period) specified under Regulation D of the Board of
Governors of the Federal Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable to nonpersonal time
deposits as presently defined in Regulation D, as then in effect, as applicable
to the class of banks of which the Relevant Bank is a member, on deposits of the
type used as a reference in determining the Domestic CD Rate and having a
maturity approximately equal to such Interest Period.
"REVOLVING PERIOD" - see Section 1.1.
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"REVOLVING PERIOD TERMINATION DATE" means the earlier to
occur of (a) December 8, 1998, subject to extension for one or more successive
364-day periods as to any Bank or Banks pursuant to Section 1.2, or (b) such
other date on which the Commitments shall terminate pursuant to Section 11.2.
"SALE AND LEASEBACK TRANSACTION" - see Section 9.4.
"SUBSIDIARY" means a corporation of which the Company and/or
its other Subsidiaries own, directly or indirectly, such number of outstanding
shares as have more than 50% of the ordinary voting power for the election of
directors.
"TERM-OUT MATURITY DATE" means December 8, 1999, unless the
Revolving Period Termination Date is extended as provided in Section 1.2, in
which case the Term-Out Maturity Date shall be the first anniversary of the
Revolving Period Termination Date as so extended.
"TYPE OF LOAN OR BORROWING" - see Section 1.3. The various
types of Loans or borrowings available under this Agreement are as follows: Base
Rate Loans or borrowings and Fixed Rate Loans or borrowings. Fixed Rate Loans or
borrowings consist of Domestic CD Loans or borrowings, Eurocurrency Loans or
borrowings, Negotiated Loans or borrowings, and Local Currency Loans or
borrowings.
"U.S. DOLLAR(S)" and the sign "$" shall mean lawful money of
the United States of America.
"UNMATURED EVENT OF DEFAULT" means any event that if it
continues uncured will, with lapse of time or notice or lapse of time and
notice, constitute an Event of Default.
"UNUSED AMOUNT" means the amount of the Commitment of the
Relevant Bank less any outstanding Loans made by such Bank. Loans in an
Obligation Currency other than U.S. Dollars will be translated into U.S. Dollars
for purposes of this calculation at the spot rate for dollars published in THE
WALL STREET JOURNAL on each day in which such Loan is outstanding (provided,
that if such day is not a Business Day, the applicable spot rate for such day
should be the spot rate on the Business Day immediately prior to such day).
"WHOLLY OWNED DOMESTIC SUBSIDIARY" means each Domestic
Subsidiary all the outstanding shares of which, other than directors' qualifying
shares, shall at the time be owned by the Company, or by the Company and one or
more Wholly Owned Domestic Subsidiaries, or by one or more Wholly Owned Domestic
Subsidiaries.
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SECTION 14 GENERAL.
14.1 WAIVER; AMENDMENTS. No delay on the part of any Bank or the holder
of any Note in the exercise of any right, power, or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any of them of any
right, power, or remedy preclude other or further exercise thereof, or the
exercise of any other right, power, or remedy. No amendment, modification, or
waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing and
signed and delivered by Banks having an aggregate Percentage of not less than
the aggregate Percentage expressly designated herein with respect thereto (or in
the case of the Outstanding Majority Banks, the aggregate principal amount
outstanding) or, in the absence of such designation as to any provision of this
Agreement or the Notes, by the Majority Banks, and then any such amendment,
modification, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given. No amendment,
modification, waiver, or consent (i) shall extend or increase the amount of the
Commitments, the maturity of the Notes or reduce the fees hereunder or the rate
of interest payable with respect to the Notes or reduce the aggregate Percentage
required to effect an amendment, modification, waiver, or consent or eliminate
the guaranty set forth in Section 12 hereof without the written consent of all
of the Banks or (ii) shall extend the maturity or reduce the principal amount
of, or rate of interest on, any Note without the written consent of the holder
of such Note. Notwithstanding the foregoing, the Company may add one or more
financial institutions as Bank parties to this Agreement, from time to time and
without the consent of the then-current Bank parties to this Agreement;
provided, that in no event will the aggregate amount of the Commitments of the
new financial institutions exceed 125 million U.S. Dollars in excess of the
Commitments as of the date hereof. Each such addition of a Bank shall be
effective upon such Bank's written agreement to become a Bank party hereto and
to be bound by the terms of this Agreement applicable to "Banks." The Company
shall give the then-current Bank parties to this Agreement prompt notice of any
change to the Bank's respective Percentages and Commitments resulting from the
addition of any Bank as a party to, or the reduction of any Bank's Commitment
under, this Agreement.
14.2 CONFIRMATIONS. The Company and each holder of a Loan agree from
time to time, upon written request received by it from the other, to confirm to
the other in writing the aggregate unpaid principal amount of Loans then
outstanding to such holder.
14.3 NOTICES. Except as otherwise provided in Sections 1.3, 1.4, 1.5,
3.3, and 6.2, all notices hereunder shall be in writing. Notices given by mail
shall be deemed to have been given three days after the date sent if sent by
registered or certified mail, postage prepaid, and:
(i) if to the Company, addressed to the Company at its
address shown below its signature hereto;
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(ii) if to any Designated Subsidiary, addressed to it at
the address given by the Company pursuant to its
designation of such Subsidiary as a Designated
Subsidiary entitled to receive Loans hereunder; or
(iii) if to any Bank, addressed to such Bank at the
address shown below its signature as its Domestic
Office address; or
in the case of each party, such other address as such party may, by written
notice to the other parties to this Agreement, have designated as its address
for notices. Notices given by facsimile, telegram, or telex shall be deemed to
have been given when sent, if properly addressed to the party to whom sent, at
its address, as aforesaid.
Each Bank shall be entitled to rely upon all telephonic
notices given by an Authorized Person pursuant to Sections 1.3, 1.4, 1.5, 3.3,
or 6.2, and the Company shall hold each Bank harmless from any loss, cost, or
expense ensuing from any such reliance, except for such loss, cost or expenses
as a result of the Bank's gross negligence or willful misconduct. All notices,
waivers, or consents given to, or any requests made upon, the Company by any
Bank or holder of any Note shall be promptly notified to all other parties to
this Agreement. Whenever a notice, declaration, or other action is required to
be taken, given, or made by the Majority Banks or the Outstanding Majority
Banks, such notice, declaration, or action shall be in writing and shall be
signed by, as the case may be, Banks having an aggregate Percentage of 66-2/3%
or more or Banks having 66-2/3% or more of the aggregate principal amount of
Loans outstanding.
14.4 COMPUTATIONS. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with the Company's then current method of accounting, which method
must be in accordance with GAAP; provided, however, if any changes in accounting
principles from those used in the preparation of the financial statements
referred to in Section 8.4 hereafter occasioned by the promulgation of rules,
regulations, pronouncements, and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) result in
a change in the method of calculation of the financial covenants, standards, or
terms found in Section 9.2 hereof, the parties hereto agree to enter into
negotiations to amend such provisions so as equitably to reflect such changes
with the desired result that the criteria for evaluating the Company's financial
condition shall be the same after such changes as if such changes had not been
made.
14.5 CONFIDENTIALITY. Unless the Company otherwise agrees in writing,
each Bank hereby agrees to keep all Proprietary Information (as defined below)
confidential and not to disclose or reveal any Proprietary Information to any
Person
33
39
other than the Bank's directors, officers, employees, Affiliates, and agents,
and then only on a confidential basis; provided, however, that a Bank may
disclose Proprietary Information (a) as required by law, rule, regulation, or
judicial process, (b) to its attorneys and accountants, (c) as requested or
required by any state, federal, or foreign authority or examiner regulating
banks or banking, or (d) to actual or potential assignees or participants as
permitted by Section 14.6.3. For purposes of this Agreement, the term
"PROPRIETARY INFORMATION" shall include all information about the Company, any
Subsidiary, or any of their respective Affiliates which has been furnished by
the Company, any Subsidiary, or any of their respective Affiliates, whether
furnished before or after the date hereof, and regardless of the manner
furnished; provided, however, that Proprietary Information shall not include
information which (x) is or becomes generally available to the public other than
as a result of a disclosure by a Bank not permitted by this Agreement, (y) was
available to a Bank on a nonconfidential basis prior to its disclosure to such
Bank by the Company, any Subsidiary, or any of their respective Affiliates, or
(z) becomes available to a Bank on a nonconfidential basis from a Person other
than the Company, any Subsidiary, or any of their respective Affiliates who, to
the best knowledge of such Bank, is not otherwise bound by a confidentiality
agreement with the Company, any Subsidiary, or any of their respective
Affiliates, or, to the best knowledge of such Bank, is not otherwise prohibited
from transmitting the information to such Bank.
14.6 ASSIGNMENTS AND PARTICIPATIONS.
14.6.1 ASSIGNMENTS. Unless the Company otherwise consents in
writing, which consent shall not be unreasonably withheld, no holder of
any Note (including any Bank) shall assign or transfer such Note or any
interest therein to any other Person, except as otherwise permitted
under Section 14.6. Except as otherwise expressly agreed in writing by
the Company, no Bank shall, by reason of the assignment or transfer of
any Note or otherwise, be relieved of any of its obligations hereunder.
Each transferee of any Note shall take such Note subject to the
provisions of this Agreement and to any request made, waiver or consent
given, or other action taken hereunder, prior to such transfer, by each
previous holder of such Note; and the Company shall be entitled to
conclusively assume that the transferee shall thereafter be vested with
all rights and powers under this Agreement of the Bank named as the
payee of the Note which is the subject of such transfer. Nothing herein
shall prohibit any Bank from pledging or assigning any Note to any
Federal Reserve Bank pursuant to applicable law.
14.6.2 PARTICIPATIONS. Any Bank may grant participations in
or to all or any part of any Loan or Loans then owing to such Bank and
the Notes held by such Bank without the consent of the Company. Except
as otherwise expressly agreed in writing by the Company, no grant of a
participation shall relieve any Bank of its obligations hereunder, the
Company shall be entitled to deal solely with the Banks (and their
respective assignees) for all purposes of this Agreement and the Notes,
and no holder of a participation in all or any part of the Loans or the
Notes shall have any rights under this Agreement, except that
34
40
the holder of a participation shall be entitled to the benefits of
Section 7 hereunder (but the dollar amount of such Section 7 benefits
shall not exceed those benefits that the assigning Bank would have
otherwise received).
14.6.3 DISCLOSURE OF INFORMATION. The Company hereby
consents to the disclosure of any information obtained in connection
herewith by any Bank to any Person which is an assignee or potential
assignee or a participant or potential participant pursuant to Section
14.6.1 or 14.6.2, it being understood that such Bank shall advise any
such actual or potential assignee or participant of its obligation to
keep confidential any nonpublic information disclosed to it pursuant to
this Section 14.6.3 and, prior to the disclosure of such information,
shall cause each such actual or potential assignee or participant to
execute a confidentiality agreement containing the confidentiality
provisions set forth in Section 14.5.
14.7 SECURITIES LAWS. Each Bank represents that it is the present
intention of such Bank to acquire each Note drawn to its order for its own
account and not with a view to the distribution or sale thereof, subject,
nevertheless, to the necessity that such Bank remain in control at all times of
the disposition of the property held by it for its own account, it being
understood that the foregoing representation shall not affect the character of
the Loans as commercial lending transactions.
14.8 COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Banks (including the
reasonable fees and out-of-pocket expenses of counsel for the Banks and
reasonable allocated costs of in-house counsel for the Banks) in connection with
the enforcement of this Agreement, the Notes, and any other instruments or
documents executed in connection herewith.
14.9 GOVERNING LAW. This Agreement and each Note shall be a contract
made under and governed by the internal laws of the State of Ohio. Wherever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Banks and any other
holders of the Notes expressed herein or in the Notes shall be in addition to
and not in limitation of those provided by applicable law.
14.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement. When counterparts executed
by all the parties shall have been lodged with the Company (or, in the case of
any Bank as to which an executed counterpart shall not have been so lodged, the
Company shall have received telegraphic, telex, or other written confirmation
from such Bank of
35
41
execution of a counterpart hereof by such Bank), this Agreement shall become
effective as of the date hereof.
14.11 CAPTIONS. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
14.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company, each Bank, and their respective successors and assigns, and shall inure
to the sole benefit of the Company, each Bank, and their respective successors
and assigns.
14.13 ENTIRE AGREEMENT. This Agreement supersedes any prior agreement
or understanding of the parties hereto, and contains the entire agreement of the
parties hereto, with respect to the matters covered hereby.
14.14 APPOINTMENT OF ADMINISTRATOR. TRW hereby appoints National City
Bank to serve as administrator (the "ADMINISTRATOR") to coordinate any votes
that may be taken under this Agreement and to distribute payments, if any,
required to be made to the Banks on a pro rata basis as provided in Section
11.2. In the event that National City Bank is unable or unwilling to act as
Administrator, TRW shall appoint a successor, subject to the approval of the
Majority Banks, which shall not be unreasonably withheld. Except as otherwise
specifically provided herein, borrowing, repayment and fee procedures set forth
in this Agreement shall not be affected by the appointment of the Administrator.
14.15 NON-U.S. BANK TAX INFORMATION. Upon the request of the Company,
any Bank that is not organized under the laws of the United States of America or
any state thereof will (i) deliver to the Company accurate and complete signed
copies of Forms 1001 and 4224 (or such additional or successor forms) and any
amendments or modifications thereto and (ii) inform the Company if the Company
can no longer rely upon such forms.
14.16 REGULATION U. The Company hereby represents and warrants that
neither the Company nor any of its Consolidated Subsidiaries is principally
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) and covenants that the Company's use of
proceeds of any borrowings under this Agreement will not cause a violation of
Regulation U. Each of the Banks hereby represents and warrants to the Company
that it is not relying and will not rely on any margin stock (as described
above) in determining whether to extend or maintain credit under this Agreement.
36
42
SIGNATURE PAGES TO REVOLVING CREDIT AGREEMENT, DATED AS OF
----------------------------------------------------------
DECEMBER 10, 1997
-----------------
Delivered at Cleveland, Ohio, as of the day and year first above
written.
TRW INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: 216/▇▇▇-▇▇▇▇
Facsimile: 216/291-7831
37
43
BANKS:
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6667% Bank of America National Trust
and Savings Association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
Bank of America NT & SA
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
EUROCURRENCY OFFICE
Bank of America NT & SA
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Bank of America
ABA Routing No. ▇▇▇▇▇▇▇▇▇
Account No.: 12331-83980
Account Name: Incoming Money
Transfer
Reference No.: TRW Commitment Fee
38
44
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6667% Barclays Bank PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DOMESTIC OFFICE
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
Barclays Nassau, Bahamas Branch
c/o Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Barclays Bank PLC-
New York
ABA Routing No.: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇▇-▇▇▇-▇▇▇
Account Name: TRW
Reference No.: TRW Commitment Fee;
C. Tenn Sing Que
39
45
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6667% The Chase Manhattan Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan Bank
ABA Routing No.: 021-000021
Account No.:
Account Name: Commercial Loan Opns.
Reference No.: TRW Commitment Fee
40
46
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6667% Citibank, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
Citibank, N.A.
c/o Citicorp Securities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Citibank, N.A., New York
ABA Routing No. ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
Account Name: Chicago NEO Loan Acct.
Reference No.: TRW Commitment Fee
41
47
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6667% ▇▇▇▇▇▇ Guaranty Trust Company
of New York
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: _____________
Facsimile: _____________
EUROCURRENCY OFFICE
▇▇▇▇▇▇ Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
Euro-Loan Servicing ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: ▇▇▇▇▇▇ Guaranty Trust
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇-▇▇-▇▇▇
Account Name: _____________
Reference No.: TRW Com. Fee
Corp. Proc. Module 30
42
48
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6666% National City Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
National City Bank
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
National City Bank
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: _____________
Facsimile: _____________
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: National City Bank
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Account Name: _____________
Reference No.: TRW Commitment Fee
43
49
Amount of Percentage of
Commitment Commitments
---------- -----------
$65,000,000 8.6666% NBD Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
NBD Bank
Attention: Mid-Corporate Banking
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
NBD Bank, N.A.
Attention: Mid-Corporate Banking
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: NBD Bank
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Account Name: Commercial Loans
Reference No.: TRW Commitment Fee
44
50
Amount of Percentage of
Commitment Commitments
---------- -----------
$45,000,000 6.0000% Banque Nationale de Paris
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ du Bocage
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ du ▇▇▇▇▇▇
Title: Executive Vice President
and General Manager
DOMESTIC OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
Banque Nationale de Paris
Chicago Branch
Rookery Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Banque Nationale de Paris,
New York Branch
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 14119400189
Account Name: BNP, Chicago Branch
Reference No.: TRW Commitment Fee
45
51
Amount of Percentage of
Commitment Commitments
---------- -----------
$45,000,000 6.0000% Dresdner Bank AG
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
DOMESTIC OFFICE
Dresdner Bank AG New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
Dresdner Bank AG Grand Cayman Branch
c/o Dresdner Bank AG New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan
(NY,NY)
ABA Routing No.: ▇▇▇-▇▇▇-▇▇▇
Account No.: 920-1-059-079
Account Name: Dresdner Bank AG,
New York Branch
Reference No.: TRW Commitment Fee
46
52
Amount of Percentage of
Commitment Commitments
---------- -----------
$45,000,000 6.0000% KeyBank National Association
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
DOMESTIC OFFICE
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: KeyBank National
Association
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 00100-39140
Account Name: Commercial Loan Opns
Reference No.: TRW Commitment Fee
47
53
Amount of Percentage of
Commitment Commitments
---------- -----------
$45,000,000 6.0000% Royal Bank of Canada
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager, Automotive Group
DOMESTIC OFFICE
Royal Bank of Canada
Grand Cayman (North America No. 1) Branch
c/o New York Branch
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇▇ No. 1) Branch
c/o New York Branch
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Chase Manhattan, NY
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 9201033363
Account Name: Royal Bank
Reference No.: TRW Commitment Fee
48
54
Amount of Percentage of
Commitment Commitments
---------- -----------
$40,000,000 5.3333% The Sumitomo Bank, Limited
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
DOMESTIC OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
The Sumitomo Bank, Limited
Chicago Branch
Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No. ▇▇▇▇▇▇▇▇▇
Account No.: 15-01208
Account Name: Sumitomo Bank Ltd,
Chicago Branch.
Reference No.: TRW Commitment Fee
49
55
Amount of Percentage of
Commitment Commitments
---------- -----------
$30,000,000 4.0000% The Sakura Bank, Limited
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Joint General Manager
DOMESTIC OFFICE
The Sakura Bank, Limited
Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
The Sakura Bank, Limited
Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: FNB of Chicago
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Account Name: Sakura Bank, Chicago
Reference No.: TRW Commitment Fee
50
56
Amount of Percentage of
Commitment Commitments
---------- -----------
$30,000,000 4.0000% Union Bank of Switzerland,
New York Branch
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
DOMESTIC OFFICE
Union Bank of Switzerland
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
Union Bank of Switzerland
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: Union Bank of Switzerland
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 519243USIDC1
Account Name: Credit Corporate Clearing
Reference No.: TRW Commitment Fee
51
57
Amount of Percentage of
Commitment Commitments
---------- -----------
$15,000,000 2.0000% ▇▇▇▇▇ Fargo Bank, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
DOMESTIC OFFICE
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EUROCURRENCY OFFICE
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ELECTRONIC PAYMENT INSTRUCTIONS
Receiving Bank: ▇▇▇▇▇ Fargo Bank, N.A.
ABA Routing No.: ▇▇▇-▇▇▇-▇▇▇
Account No.: 451-▇▇▇▇▇▇▇
Account Name: SYNDIC/WFB CORP/ACH
Reference No.: TRW Ref No 9118583038
-----
$750,000,000 100.0000% Total
52
58
EXHIBIT A
to
Revolving Credit Agreement
REVOLVING NOTE
Up to a maximum of
$
----------------
(or the Eurocurrency or Date: ________________, 1997
Local Currency equivalent Cleveland, Ohio
hereof)
FOR VALUE RECEIVED, the undersigned hereby promises to pay to the
order of _____________________ (the "BANK") for the account of its Domestic or
Eurocurrency Office, as applicable (capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement referred to below), the outstanding principal amount of the
Loans made by the Bank to the undersigned pursuant to the Credit Agreement. The
principal amount of each Loan evidenced hereby shall be payable on the earliest
of: (i) the Revolving Period Termination Date, unless the Company shall have
made the election provided for in clause (ii) of Section 2.1 of the Credit
Agreement; (ii) the Term-Out Maturity Date, if the Company shall have made such
election; (iii) the last day of the applicable Interest Period for such Loan
(unless the Loan is Continued or Converted); or (iv) such other date as the
Company and the Relevant Bank may agree in writing.
The undersigned promises to pay interest on the unpaid principal
amount of each Loan evidenced hereby from the date such Loan is made until the
principal amount of such Loan is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal of, and interest on, any Loan are payable in
immediately available funds in the currency of such Loan to the Bank as its
Domestic or Eurodollar Office that made the Loan. The Loans made by the Bank to
the undersigned, and all payments made on account of principal thereof, shall be
recorded by the Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Note.
This Note is one of the Notes referred to in, and is entitled to
the benefits of, the Revolving Credit Agreement, dated as of December 10, 1997,
among the undersigned, the Bank, and the other bank parties named therein, as
Banks (as the same may be amended, modified, or supplemented and in effect from
time to time, the "CREDIT AGREEMENT"). The Credit Agreement, among other things,
(i) provides for the making of Loans by the Bank to the undersigned from time to
time in an aggregate principal amount not to exceed at any time the dollar
amount first mentioned above and the indebtedness of the undersigned resulting
from each such Loan being evidenced by this Note, and (ii) contains provisions
for acceleration of the maturity
59
hereof upon the happening of certain stated events and also for payments on
account of the principal hereof prior to the maturity hereof upon the terms and
conditions and in accordance with the provisions therein specified. Reference is
hereby made to the Credit Agreement for a statement of said terms and
provisions.
In addition to, and not in limitation of, the foregoing and the
provisions of the Credit Agreement hereinabove referred to, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to pay
all expenses, including reasonable attorneys' fees and expenses, incurred by the
holder of this Note in seeking to collect any amounts payable hereunder which
are not paid when due, whether by acceleration or otherwise.
DEMAND, PRESENTMENT, PROTEST, AND NOTICE OF NON-PAYMENT ARE HEREBY
WAIVED BY THE UNDERSIGNED.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF OHIO.
TRW INC.
By:
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
2
60
Schedule Attached to Revolving Note dated _________________, 1997 of TRW Inc.
payable to the order of
-------------------------------------------------
BASE RATE BORROWINGS
Unpaid
Date and Date and Amount Principal
Amount of of Repayment Balance of
Base Rate of Base Rate Base Rate Notation
Borrowing Borrowing Borrowings Made By
--------- --------- ---------- -------
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61
Schedule Attached to Revolving Note dated _________________, 1997 of TRW Inc.
payable to the order of
---------------------------------------------------
FIXED RATE BORROWINGS
Date, Amount, Date and Unpaid
and Type of Interest Amount of Principal Notation
Borrowing Period Repayment Balance Made By
--------- ------ --------- ------- -------
-----------------------------------------------------------------------------------------------------
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-----------------------------------------------------------------------------------------------------
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2
62
EXHIBIT B
to
Revolving Credit Agreement
COMPLIANCE CERTIFICATE
To: Each of the Bank Parties to the Credit Agreement referred to below
Reference is made to our Revolving Credit Agreement, dated as of
December 10, 1997 (herein as amended, modified or supplemented and in effect
from time to time called the "CREDIT AGREEMENT") with you. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
The Company hereby certifies and warrants to you that the following is
a true and correct computation as at _________________ 19 __ (the "COMPUTATION
DATE") of Consolidated Net Worth contained in Section 9.2 of the Credit
Agreement:
Minimum Consolidated Net Worth
------------------------------
Required Under Section 9.2
--------------------------
$1,600,000,000
LESS: The lessor of (i) the aggregate amount
expended by the Company subsequent
to December 31, 1995 for repurchase of
its Common Stock and (ii) $600,000,000 $_________________
$_________________
Consolidated Net Worth
----------------------
of the Company
--------------
Consolidated shareholders'
investment $_________________
PLUS: Minority interests $_________________
$_________________
The Company hereby further certifies and warrants to you that no Event
of Default or Unmatured Event of Default has occurred and is continuing.
63
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed and delivered by its duly authorized officer this ___ day of
________________, 19__.
TRW INC.
By
---------------------------
Its
---------------------------
2
64
EXHIBIT C
to
Revolving Credit Agreement
December 10, 1997
To: Each of the Banks party to the
Credit Agreements referred to
below
Ladies and Gentlemen:
I am General Counsel of TRW Inc., an Ohio corporation (the "Company"), and have
acted in such capacity in connection with the Revolving Credit Agreement, dated
as of December 10, 1997 (the "Credit Agreement"), among the Company and each of
the financial institutions listed on the signature pages thereof. Capitalized
terms used but not otherwise defined are used herein as defined in the Credit
Agreement.
In connection with the opinions expressed below, I have examined or caused to be
examined by members of the TRW Law Department a copy of the Credit Agreement and
the Notes thereunder; and I have also made or caused to be made such other
examinations and inquiries as I have deemed necessary to enable me to give the
opinions hereinafter expressed. However, as to each of the opinions set forth
below which is limited to my knowledge, you should be aware that I have neither
made nor caused to be made any independent review for purposes of rendering this
opinion, although in the regular course of advising the Company I have reviewed
or caused to be reviewed various documents, records and matters of law.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and in good standing
under the laws of the State of Ohio.
65
December 10, 1997
Page 2
2. The Company has full power to execute, deliver, and perform the Credit
Agreement and to borrow moneys thereunder and to execute, deliver, and
perform its obligations under the Notes.
3. The execution and delivery of the Credit Agreement and the Notes, the
borrowings under the Credit Agreement, and the performance by the
Company of its obligations under the Credit Agreement and the Notes,
have been duly authorized by all necessary corporate action, and do not
and will not contravene or conflict with any material provision of
applicable law now in effect or of the Amended Articles of
Incorporation or Regulations of the Company or, to my knowledge, of any
agreement for borrowed money or other material agreement binding upon
the Company.
4. The Credit Agreement and the Notes have been duly executed and
delivered by the Company and are the legal, valid, and binding
obligations of the Company, enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium laws or debtor relief proceedings or any
similar laws or proceedings affecting creditors' rights generally or by
general principles of equity.
I am a member of the bar of the State of Ohio and do not purport to be an expert
on, generally familiar with or qualified to express legal conclusions based on
laws other than the laws of the State of Ohio and the United States of America.
This opinion is being delivered to you solely for your benefit as creditor under
the Credit Agreement and may be relied upon only by you for such purpose.
Very truly yours,
General Counsel
2
66
SCHEDULE 8.5
[REVOLVING CREDIT AGREEMENT
dated as of December 10, 1997]
In November 1997, Centoco Holdings Limited and an affiliate, KS Centoco Ltd.,
filed a lawsuit against TRW Inc. and certain Magna International Inc. entities
in the General Division Court in Ontario, Canada, alleging, among other things,
breach of contract, patent infringement and collusion. A Centoco affiliate
licensed from a company named KSAG certain air bag and steering wheel
technology. KSAG's successor was purchased by Magna International Inc., which in
turn sold 80% of the relevant Magna subsidiaries' stock to TRW Inc. in February
1997. The plaintiffs have claimed CN$600 million in damages. TRW believes this
matter is covered by an indemnification agreement between Magna and TRW. TRW
management is currently evaluating the claim and is unable to make a meaningful
estimate of the amount or range of possible liability at this time.
TRW Vehicle Safety Systems Inc. ("VSSI") has reported to the Arizona Department
of Environmental Quality ("ADEQ") potential violations of the Arizona hazardous
waste law at its Queen Creek, Arizona facility for the possible failure to
properly label and dispose of waste water that might be classified as hazardous
waste. ADEQ is conducting an investigation into these potential violations and
VSSI is cooperating with the investigation. If ADEQ initiates proceedings
against VSSI with respect to such matters, VSSI could be liable for penalties
and fines and other relief. VSSI has been apprised by state and federal
officials that there are ongoing criminal investigations with respect to these
potential violations. Management is unable to make a meaningful estimate of the
amount or range of possible liability at this time.