EXECUTION COPY
U.S. $1,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of November 26, 2003
Among
HONEYWELL INTERNATIONAL INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent
and
JPMORGAN CHASE BANK
as Syndication Agent
and
BANK OF AMERICA, N.A.
BARCLAYS BANK PLC
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS SECURITIES LLC
as Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
and
X.X.XXXXXX SECURITIES INC.
as Joint Lead Arrangers and Co-Book Managers
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.01. Certain Defined Terms...................................................1
SECTION 1.02. Computation of Time Periods............................................16
SECTION 1.03. Accounting Terms.......................................................16
ARTICLE II
SECTION 2.01. The Revolving Credit Advances..........................................16
SECTION 2.02. Making the Revolving Credit Advances...................................17
SECTION 2.03. The Competitive Bid Advances...........................................19
SECTION 2.04. Fees...................................................................24
SECTION 2.05. Termination or Reduction of the Commitments............................24
SECTION 2.06. Repayment of Advances..................................................26
SECTION 2.07. Interest on Revolving Credit Advances..................................26
SECTION 2.08. Interest Rate Determination............................................27
SECTION 2.09. Prepayments of Revolving Credit Advances...............................29
SECTION 2.10. Increased Costs........................................................30
SECTION 2.11. Illegality.............................................................31
SECTION 2.12. Payments and Computations..............................................31
SECTION 2.13. Taxes..................................................................32
SECTION 2.14. Sharing of Payments, Etc...............................................35
SECTION 2.15. Use of Proceeds........................................................35
SECTION 2.16. Extension of Termination Date..........................................36
SECTION 2.17. Evidence of Debt.......................................................37
i
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03........38
SECTION 3.02. Conditions Precedent to Initial Borrowing..............................39
SECTION 3.03. Initial Loan to Each Designated Subsidiary.............................40
SECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing................40
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing.................41
SECTION 3.06. Determinations Under Section 3.01......................................42
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company..........................42
ARTICLE V
SECTION 5.01. Affirmative Covenants..................................................45
SECTION 5.02. Negative Covenants.....................................................48
ARTICLE VI
SECTION 6.01. Events of Default......................................................50
ARTICLE VII
SECTION 7.01. Unconditional Guarantee................................................54
SECTION 7.02. Guarantee Absolute.....................................................54
SECTION 7.03. Waivers................................................................55
SECTION 7.04. Remedies...............................................................55
SECTION 7.05. No Stay................................................................55
SECTION 7.06. Survival...............................................................55
ARTICLE VIII
SECTION 8.01. Authorization and Action...............................................56
SECTION 8.02. Agent's Reliance, Etc..................................................56
SECTION 8.03. Citibank and Affiliates................................................57
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SECTION 8.04. Lender Credit Decision.................................................57
SECTION 8.05. Indemnification........................................................57
SECTION 8.06. Successor Agent........................................................57
SECTION 8.07. Sub-Agent..............................................................58
ARTICLE IX
SECTION 9.01. Amendments, Etc........................................................58
SECTION 9.02. Notices, Etc...........................................................58
SECTION 9.03. No Waiver; Remedies....................................................59
SECTION 9.04. Costs and Expenses.....................................................60
SECTION 9.05. Binding Effect.........................................................61
SECTION 9.06. Assignments and Participations.........................................61
SECTION 9.07. Designated Subsidiaries................................................64
SECTION 9.08. Confidentiality........................................................64
SECTION 9.09. Mitigation of Yield Protection.........................................65
SECTION 9.10. Governing Law..........................................................65
SECTION 9.11. Execution in Counterparts..............................................65
SECTION 9.12. Jurisdiction, Etc......................................................65
SECTION 9.13. Substitution of Currency...............................................66
SECTION 9.14. Final Agreement........................................................66
SECTION 9.15. Judgment...............................................................66
SECTION 9.16. Waiver of Jury Trial...................................................68
iii
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of Xxxx X. Xxxxxx, Assistant General Counsel of the
Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
Exhibit I - Form of Opinion of Shearman & Sterling LLP, Counsel to the Agent
iv
364-DAY CREDIT AGREEMENT
Dated as of November 26, 2003
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the "Company"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"),
as administrative agent (the "Agent") for the Lenders (as hereinafter defined),
JPMORGAN CHASE BANK, as syndication agent, BANK OF AMERICA, N.A., BARCLAYS BANK
PLC, DEUTSCHE BANK AG NEW YORK BRANCH and UBS SECURITIES LLC, as documentation
agents, and CITIGROUP GLOBAL MARKETS INC. and X.X.XXXXXX SECURITIES INC., as
joint lead arrangers and co-book managers, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
00000000, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Foreign Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and the
Lenders for such purpose and (c) in any such case, such other account of
the Agent as is designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose.
"Alternate Currency" means any lawful currency other than Dollars and
the Major Currencies that is freely transferrable and convertible into
Dollars.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance and,
in the case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Agent as its Applicable Lending Office with
respect to such Competitive Bid Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum and
(b) for Eurocurrency Rate Advances, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
---------------------------------------------------------------------------
Applicable Margin for Applicable Margin for
Eurocurrency Rate Eurocurrency Rate
Public Debt Rating Advances Prior to Term Advances On and After
S&P/Xxxxx'x Loan Conversion Date Term Loan Conversion Date
---------------------------------------------------------------------------
Xxxxx 0
A+ or A1 or above 0.200% 0.550%
---------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A or A2 0.240% 0.600%
---------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A- or A3 0.280% 0.700%
---------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least BBB+ or Baa1 0.400% 0.875%
---------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.625% 1.375%
---------------------------------------------------------------------------
"Applicable Percentage" means, as of any date prior to the Term Loan
Conversion Date, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
-----------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
-----------------------------------
Xxxxx 0
A+ or A1 or above 0.050%
-----------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A or A2 0.060%
-----------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A- or A3 0.070%
-----------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least BBB+ or Baa1 0.100%
-----------------------------------
2
-----------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.125%
-----------------------------------
"Applicable Utilization Fee" means, as of any date prior to the Term
Loan Conversion Date that the aggregate Advances exceed 50% of the
aggregate Commitments, a percentage per annum determined by reference to
the Public Debt Rating in effect on such date as set forth below:
----------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
----------------------------------------
Level
A+ or A1 or above 0.050%
----------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A or A2 0.050%
----------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least A- or A3 0.100%
----------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but
at least BBB+ or Baa1 0.125%
----------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.125%
----------------------------------------
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a Lender
that becomes a Lender hereunder pursuant to Section 2.16.
"Assumption Agreement" means an agreement in substantially the form of
Exhibit D hereto by which an Eligible Assignee agrees to become a Lender
hereunder pursuant to Section 2.16, in each case agreeing to be bound by
all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/32 of 1% or, if there is
no nearest 1/32 of 1%, to the next higher 1/32 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month
3
certificates of deposit of major United States money market banks,
such three-week moving average (adjusted to the basis of a year of 360
days) being determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including (among
other liabilities) three-month Dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as the
context requires.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Rate Advance or LIBO Rate Advance,
on which dealings are carried on in the London interbank market and banks
are open for business in London and in the country of issue of the currency
of such Eurocurrency Rate Advance or LIBO Rate Advance (or, in the case of
an Advance denominated in Euros, on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open) and,
if the applicable Business Day relates to any Local Rate Advance, on which
banks are open for business in the country of issue of the currency of such
Local Rate Advance.
"Change of Control" means that (i) any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended (the "Act")) (other than the Company, any Subsidiary of
the Company or any savings, pension or other benefit plan for the benefit
of employees of the Company or its Subsidiaries) which theretofore
beneficially owned less than 30% of the Voting Stock of the Company
4
then outstanding shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Act) of 30% or more in voting power of the outstanding Voting
Stock of the Company or (ii) during any period of twelve consecutive
calendar months commencing at the Effective Date, individuals who at the
beginning of such twelve-month period were directors of the Company shall
cease to constitute a majority of the Board of Directors of the Company.
"Commitment" means as to any Lender (i) the Dollar amount set forth
opposite its name on the signature pages hereof, (ii) if such Lender has
become a Lender hereunder pursuant to an Assumption Agreement, the Dollar
amount set forth as its Commitment in such Assumption Agreement or (iii) if
such Lender has entered into any Assignment and Acceptance, the Dollar
amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.06(d), in each case as the same
may be terminated or reduced, as the case may be, pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any Borrower
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.03 and refers to a Fixed Rate
Advance, a LIBO Rate Advance or a Local Rate Advance (each of which shall
be a "Type" of Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.03.
"Competitive Bid Note" means a promissory note of any Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
"Consenting Lenders" has the meaning specified in Section 2.16(b).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Subsidiary" means, at any time, any Subsidiary the
accounts of which are required at that time to be included on a
Consolidated basis in the Consolidated financial statements of the Company,
assuming that such financial statements are prepared in accordance with
GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.11.
"Debt" means, with respect to any Person: (i) indebtedness of such
Person, which is not limited as to recourse to such Person, for borrowed
money (whether by loan or the issuance and sale of debt securities) or for
the deferred (for 90 days or more) purchase or
5
acquisition price of property or services; (ii) indebtedness or obligations
of others which such Person has assumed or guaranteed; (iii) indebtedness
or obligations of others secured by a lien, charge or encumbrance on
property of such Person whether or not such Person shall have assumed such
indebtedness or obligations; (iv) obligations of such Person in respect of
letters of credit (other than performance letters of credit, except to the
extent backing an obligation of any Person which would be Debt of such
Person), acceptance facilities, or drafts or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person; and (v) obligations of such Person under leases which are required
to be capitalized on a balance sheet of such Person in accordance with
GAAP.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Designated Subsidiary" means any corporate Subsidiary of the Company
designated for borrowing privileges under this Agreement pursuant to
Section 9.07.
"Designation Letter" means, with respect to any Designated Subsidiary,
a letter in the form of Exhibit E hereto signed by such Designated
Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each mean lawful money of the United States
of America.
"Domestic Lending Office" means, with respect to any Initial Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto and, with respect to any other
Lender, the office of such Lender specified as its "Domestic Lending
Office" in the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose operations are
conducted primarily in the United States excluding any Subsidiary whose
assets consist primarily of the stock of Subsidiaries whose operations are
conducted outside the United States of America.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $10,000,000,000;
(iv) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having a net worth of
at least $500,000,000, calculated in accordance with GAAP; (v) a commercial
bank organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded
special lending arrangements with the International Monetary Fund
associated with its General
6
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in excess of $10,000,000,000, so long as such bank is
acting through a branch or agency located in the country in which it is
organized or another country that is described in this clause (v); and (vi)
the central bank of any country that is a member of the Organization for
Economic Cooperation and Development.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equivalent" in Dollars of any Foreign Currency on any date means the
equivalent in Dollars of such Foreign Currency determined by using the
quoted spot rate at which the Sub-Agent's principal office in London offers
to exchange Dollars for such Foreign Currency in London prior to 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement)
on such date as is required pursuant to the terms of this Agreement, and
the "Equivalent" in any Foreign Currency of Dollars means the equivalent in
such Foreign Currency of Dollars determined by using the quoted spot rate
at which the Sub-Agent's principal office in London offers to exchange such
Foreign Currency for Dollars in London prior to 4:00 P.M. (London time)
(unless otherwise indicated by the terms of this Agreement) on such date as
is required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code.
7
"ERISA Event" with respect to any Person means (a) (i) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person or any of its ERISA Affiliates unless
the 30-day notice requirement with respect to such event has been waived by
the PBGC, or (ii) an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to a Plan of such Person or any of its ERISA Affiliates within the
following 30 days, and the contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of such Plan is required under Section 4043(b)(3) of
ERISA (taking into account Section 4043(b)(2) of ERISA) to notify the PBGC
that the event is about to occur; (b) the application for a minimum funding
waiver with respect to a Plan of such Person or any of its ERISA
Affiliates; (c) the provision by the administrator of any Plan of such
Person or any of its ERISA Affiliates of a notice of intent to terminate
such Plan in a distress termination pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
such Person or any of its ERISA Affiliates in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of
its ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for the imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan of such Person or any
of its ERISA Affiliates; (g) the adoption of an amendment to a Plan of such
Person or any of its ERISA Affiliates requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the institution by
the PBGC of proceedings to terminate a Plan of such Person or any of its
ERISA Affiliates pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
"Escrow" means an escrow established with an independent escrow agent
pursuant to an escrow agreement reasonably satisfactory in form and
substance to the Person or Persons asserting the obligation of one or more
Borrowers to make a payment to it or them hereunder.
"EURIBO Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing, the rate per annum
appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent
from time to time for purposes of providing quotations of interest rates
applicable to deposits in Euro by reference to the Banking Federation of
the European Union Settlement Rates for deposits in Euro) at approximately
10:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Euros with a maturity
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Euros are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period
8
in an amount substantially equal to such Reference Bank's Eurocurrency Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period (subject,
however, to the provisions of Section 2.07).
"Euro" means the lawful currency of the European Union as constituted
by the Treaty of Rome which established the European Community, as such
treaty may be amended from time to time and as referred to in the EMU
legislation.
"Eurocurrency Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurocurrency Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Company and the
Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a) (i) in the case of any Advance denominated in Dollars or
any Major Currency other than Euros, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on the applicable
Telerate Page as the London interbank offered rate for deposits in Dollars
or in the relevant Major Currency at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/32 of 1% per annum, if such average is not such a multiple) of the rate
per annum at which deposits in Dollars or in the relevant Major Currency
are offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period or, (ii) in the case of any Advance
denominated in Euros, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period. If
the Telerate Page is unavailable, the Eurocurrency Rate for any Interest
Period for each Eurocurrency Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Major Currency that bears interest as
provided in Section 2.07(a)(ii).
9
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances or LIBO Rate Advances comprising part of the
same Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.16(a).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Fixed Rate Advance" has the meaning specified in Section 2.03(a)(i),
which Advance shall be denominated in Dollars or in any Foreign Currency.
"Foreign Currency" means any Major Currency or any Alternate Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period selected
by the Borrower requesting such Borrowing pursuant to the provisions below
and, thereafter, with respect to Eurocurrency Rate Advances, each
subsequent
10
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three or six months and, if available to all Lenders,
nine months, as the Borrower requesting the Borrowing may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) such Borrower may not select any Interest Period that ends
after the scheduled Termination Date or, if the Revolving Credit
Advances have been converted to a term loan pursuant to Section 2.06
prior to such selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the same
Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means, collectively, (i) Initial Lenders, (ii) each Assuming
Lender that shall become a party hereto pursuant to Section 2.16 and (iii)
each Eligible Assignee that shall become a party hereto pursuant to Section
9.06(a), (b) and (c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) (i) in the case
of any Advance denominated in Dollars or any Foreign Currency other than
Euro, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on the applicable Telerate Page as the London
interbank offered rate for deposits in Dollars or in the relevant Foreign
Currency at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole multiple of
1/32 of 1% per
11
annum, if such average is not such a multiple) of the rate per annum at
which deposits in Dollars or in the relevant Foreign Currency are offered
by the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an amount
substantially equal to the amount that would be the Reference Banks'
respective ratable shares of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period or, (ii) in the case of any
Advance denominated in Euros, the EURIBO Rate by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Telerate Page is unavailable, the LIBO Rate for any Interest
Period for each LIBO Rate Advance comprising part of the same Competitive
Bid Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance denominated in
Dollars or in any Foreign Currency and bearing interest based on the LIBO
Rate.
"Lien" means any lien, mortgage, pledge, security interest or other
charge or encumbrance of any kind.
"Local Rate Advance" means a Competitive Bid Advance denominated in
any Foreign Currency sourced from the jurisdiction of issuance of such
Foreign Currency and bearing interest at a fixed rate.
"Major Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of Japan and Euros.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate principal amount (based on the Equivalent in Dollars at
such time) of the Revolving Credit Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least 51% of
the Commitments.
"Material Adverse Change" means any material adverse change in the
financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement or any Note or (c) the ability
of the Borrowers to perform their obligations under this Agreement or any
Note.
"Maturity Date" means the earlier of (a) the first anniversary of the
Termination Date and (b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.05 or 6.01.
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"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person or any of its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Tangible Assets of the Company and its Consolidated
Subsidiaries", as at any particular date of determination, means the total
amount of assets (less applicable reserves and other properly deductible
items) after deducting therefrom (a) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of
the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other
like intangible assets, as set forth in the most recent balance sheet of
the Company and its Consolidated Subsidiaries and computed in accordance
with GAAP.
"Non-Consenting Lender" has the meaning specified in Section 2.16(b).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01(b).
"Payment Office" means, for any Foreign Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
13
"Process Agent" has the meaning specified in Section 9.12(a).
"Public Debt Rating" means, as of any date, the highest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Utilization Fee and the Applicable Percentage shall
be determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Utilization Fee and the Applicable Percentage will be set in
accordance with Level 5 under the definition of "Applicable Margin",
"Applicable Utilization Fee" or "Applicable Percentage", as the case may
be; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin, the Applicable Utilization Fee and
the Applicable Percentage shall be based upon the higher rating, provided
that if the lower of such ratings is more than one level below the higher
of such ratings, the Applicable Margin, the Applicable Utilization Fee and
the Applicable Percentage shall be determined by reference to the level
that is one level above such lower rating; (d) if any rating established by
S&P or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Rating Condition" has the meaning specified in Section 2.05(c)(ii).
"Rating Condition Notice" has the meaning specified in Section
2.05(c)(ii).
"Reference Banks" means Citibank, Bank of America, N.A., JPMorgan
Chase Bank and Deutsche Bank AG New York Branch.
"Register" has the meaning specified in Section 9.06(d).
"Restricted Property" means (a) any property of the Company located
within the United States of America that, in the opinion of the Company's
Board of Directors, is a principal manufacturing property or (b) any shares
of capital stock or Debt of any Subsidiary owning any such property.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
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"Revolving Credit Note" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.17 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender to such
Borrower.
"Sale and Leaseback Transaction" means any arrangement with any Person
(other than the Company or a Subsidiary of the Company), or to which any
such Person is a party, providing for the leasing to the Company or to a
Subsidiary of the Company owning Restricted Property for a period of more
than three years of any Restricted Property that has been or is to be sold
or transferred by the Company or such Subsidiary to such Person, or to any
other Person (other than the Company or a Subsidiary of the Company) to
which funds have been or are to be advanced by such Person on the security
of the leased property. It is understood that arrangements pursuant to
Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, or any
successor provision having similar effect, are not included within this
definition of "Sale and Leaseback Transaction".
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person other
than such Person and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Telerate Page" means, as applicable, page 3740 or 3750 (or any
successor pages, respectively) of Moneyline Telerate Service.
"Term Loan Conversion Date" means the Termination Date on which all
Revolving Credit Advances outstanding on such date are converted into a
term loan pursuant to Section 2.06.
15
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) November 24, 2004, or such
later date to which it may be extended pursuant to Section 2.16, and (b)
the date of termination in whole of the Commitments pursuant to Section
2.05(a) or Section 6.01 or, if all Lenders elect to terminate their
Commitments as provided therein, Section 2.05(d).
"Threatened" means, with respect to any action, suit, investigation,
litigation or proceeding, a written communication to the Company or a
Designated Subsidiary, as the case may be, expressing an intention to
immediately bring such action, suit, investigation, litigation or
proceeding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed, and all financial computations and
determinations pursuant hereto shall be made, in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"); provided,
however, that, if any changes in accounting principles from those used in the
preparation of such financial statements have been required by the rules,
regulations, pronouncements or opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and have been adopted by the Company
with the agreement of its independent certified public accountants, the Lenders
agree to consider a request by the Company to amend this Agreement to take
account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advance denominated in a Major
Currency on the Equivalent in Dollars determined on the date of delivery of the
applicable Notice of Revolving Credit Borrowing), not to exceed at any time
outstanding such Lender's Commitment, provided that the aggregate amount of the
16
Commitments of the Lenders shall be deemed used from time to time to the extent
of the aggregate amount (based in respect of any Competitive Bid Advance
denominated in a Foreign Currency on the Equivalent in Dollars at such time) of
the Competitive Bid Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be allocated among the Lenders ratably
according to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "Competitive Bid Reduction"). Each Revolving
Credit Borrowing shall be in an aggregate amount not less than $10,000,000 (or
the Equivalent thereof in any Major Currency determined on the date of delivery
of the applicable Notice of Revolving Credit Borrowing) or an integral multiple
of $1,000,000 (or the Equivalent thereof in any Major Currency determined on the
date of delivery of the applicable Notice of Revolving Credit Borrowing) in
excess thereof and shall consist of Revolving Credit Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments; provided, however, that if there is no unused portion of the
Commitment of one or more Lenders at the time of any requested Revolving Credit
Borrowing such Borrowing shall consist of Revolving Credit Advances of the same
Type made on the same day by the Lender or Lenders who do then have an unused
portion of their Commitments ratably according to the unused portion of such
Commitments. Notwithstanding anything herein to the contrary, no Revolving
Credit Borrowing may be made in a Major Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Revolving Credit Advances denominated in Major
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Competitive Bid Advances denominated in Foreign Currencies, would
exceed $500,000,000. Within the limits of each Lender's Commitment, any Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than (x) 10:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Major Currency, (y)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars or (z)
9:00 A.M. (New York City time) on the day of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate
Advances, by any Borrower to the Agent (and the Agent shall, in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances, immediately
relay such notice to the Sub-Agent), which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Revolving Credit
Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone,
confirmed immediately in writing, or telecopier or telex in substantially the
form of Exhibit B-1 hereto, specifying therein the requested (i) date of such
Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving
Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and
(iv) in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances, initial Interest Period and currency for each such Revolving Credit
Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the date
of such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of
17
Eurocurrency Rate Advances denominated in any Major Currency, make available for
the account of its Applicable Lending Office to the Agent at the applicable
Agent's account, in same day funds, such Lender's ratable portion (as determined
in accordance with Section 2.01) of such Revolving Credit Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower requesting the Revolving Credit Borrowing at the Agent's aforesaid
address or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary notwithstanding,
a Borrower may not select Eurocurrency Rate Advances for any proposed Revolving
Credit Borrowing if the obligation of the Lenders to make Eurocurrency Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.11.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall be
irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower proposing such Revolving Credit
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (B) the cost of funds incurred by
the Agent in respect of such amount and (ii) in the case of such Lender, (A) the
Federal Funds Rate in the case of Advances denominated in Dollars or (B) the
cost of funds incurred by the Agent in respect of such amount in the case of
Advances denominated in any Major Currency. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement.
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(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that any Borrower may request Competitive Bid Borrowings under this
Section 2.03 from time to time on any Business Day during the period from the
date hereof until the date occurring seven days prior to the Termination Date in
the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount (based in respect of any Advance
denominated in a Foreign Currency on the Equivalent in Dollars on such Business
Day) of the Advances then outstanding shall not exceed the aggregate amount of
the Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction). Notwithstanding anything herein to the contrary, no Competitive Bid
Borrowing may be made in a Foreign Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Competitive Bid Advances denominated in Foreign
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Revolving Credit Advances denominated in Major Currencies, would
exceed $500,000,000.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent (and the Agent shall, in the case
of a Competitive Bid Borrowing not consisting of Fixed Rate Advances or
LIBO Rate Advances to be denominated in Dollars, immediately notify the
Sub-Agent), by telecopier or telex, a notice of a Competitive Bid Borrowing
(a "Notice of Competitive Bid Borrowing"), in substantially the form of
Exhibit B-2 hereto, specifying therein the requested (A) date of such
proposed Competitive Bid Borrowing, (B) aggregate amount of such proposed
Competitive Bid Borrowing, (C) interest rate basis and day count convention
to be offered by the Lenders, (D) currency of such proposed Competitive Bid
Borrowing, (E) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period of each Competitive Bid Advance to be
made as part of such Competitive Bid Borrowing, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances or Local Rate
Advances, maturity date for repayment of each Fixed Rate Advance or Local
Rate Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring five days after
the date of such Competitive Bid Borrowing or later than the Termination
Date), (F) interest payment date or dates relating thereto, (G) location of
such Borrower's account to which funds are to be advanced, and (H) other
terms (if any) to be applicable to such Competitive Bid Borrowing, not
later than (w) 10:00 A.M. (New York City time) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in its Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Lenders shall be fixed rates per
annum (each Advance comprising any such Competitive Bid Borrowing being
referred to herein as a "Fixed Rate Advance") and that the Advances
comprising such proposed Competitive Bid Borrowing shall be denominated in
Dollars, (x) 10:00 A.M. (New York City time) at
19
least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in its Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances denominated in Dollars, (y) 3:00 P.M.
(New York City time) atleast three Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in the
Notice of Competitive Bid Borrowing that the Advances comprising such
proposed Competitive Bid Borrowing shall be either Fixed Rate Advances
denominated in any Foreign Currency or Local Rate Advances denominated in
any Foreign Currency and (z) 3:00 P.M. (New York City time) at least five
Business Days prior to the date of the proposed Competitive Bid Borrowing,
if such Borrower shall instead specify in its Notice of Competitive Bid
Borrowing that the Advances comprising such Competitive Bid Borrowing shall
be LIBO Rate Advances denominated in any Foreign Currency. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on such
Borrower. Any Notice of Competitive Bid Borrowing by a Designated
Subsidiary shall be given to the Agent in accordance with the preceding
sentence through the Company on behalf of such Designated Subsidiary. The
Agent shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from such Borrower by sending such
Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the
Borrower proposing the Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to such Borrower and to the Sub-Agent, if
applicable), (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 10:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 10:00 A.M. (New York City time) on the second Business Day prior to
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of either Fixed Rate Advances
denominated in any Foreign Currency or Local Rate Advances denominated in
any Foreign Currency and (D) before 10:00 A.M. (New York City time) four
Business Days before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in any Foreign Currency, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be willing
to make as part of such proposed Competitive Bid Borrowing (which amounts,
or the Equivalent thereof in Dollars, as the case may be, may, subject to
the proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor and
such Lender's Applicable Lending Office with respect to such Competitive
Bid Advance; provided that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify such
Borrower of such offer at least 30 minutes before the time and on the date
on which notice of such election is to be given to the Agent, by the other
Lenders. If any Lender shall elect not to make such an offer, such Lender
shall so notify the Agent,
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before 10:00 A.M. (New York City time) (and the Agent shall notify the
Sub-Agent, if applicable) on the date on which notice of such election is
to be given to the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part of
such Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Advance shall, in
turn, (A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 10:00 A.M. (New York City time) on the Business Day prior to the
date of such Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances denominated in any Foreign Currency
and (D) before 10:00 A.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated in
any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent (and the Agent shall give notice to the
Sub-Agent, if applicable) of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to such
Borrower by the Agent on behalf of such Lender for such Competitive
Bid Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above by
giving the Agent notice to that effect; provided, however, that such
Borrower shall not accept any offer in excess of the requested bid
amount for any maturity. Such Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such Lenders. If
two or more Lenders have offered the same interest rate, the amount to
be borrowed at such interest rate will be allocated among such Lenders
in proportion to the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing notifies
the Agent that such Competitive Bid Borrowing is canceled pursuant to
paragraph (iii)(x) above, the Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
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(v) If the Borrower proposing the Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Agent shall in turn promptly notify (A) each
Lender that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such Competitive Bid Borrowing and whether or
not any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Advance to be made by such Lender as part of
such Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 11:00 A.M. (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars or 11:00 A.M. (London
time), in the case of Competitive Bid Advances to be denominated in any
Foreign Currency, on the date of such Competitive Bid Borrowing specified
in the notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall have received
notice from the Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Agent (x) in the case of a Competitive Bid Borrowing denominated in
Dollars, at its address referred to in Section 9.02, in same day funds,
such Lender's portion of such Competitive Bid Borrowing in Dollars, and (y)
in the case of a Competitive Bid Borrowing in a Foreign Currency, at the
Payment Office for such Foreign Currency as shall have been notified by the
Agent to the Lenders prior thereto, in same day funds, such Lender's
portion of such Competitive Bid Borrowing in such Foreign Currency. Upon
fulfillment of the applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such funds
available to such Borrower's account at the location specified by such
Borrower in its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the amount
of such Competitive Bid Borrowing, the consequent Competitive Bid Reduction
and the dates upon which such Competitive Bid Reduction commenced and will
terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing notifies
the Agent that it accepts one or more of the offers made by any Lender or
Lenders pursuant to paragraph (iii)(y) above, such notice of acceptance
shall be irrevocable and binding on such Borrower. Such Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure by such Borrower to fulfill on or before
the date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a result of
such failure, is not made on such date.
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(b) Each Competitive Bid Borrowing shall be in an aggregate amount not
less than $10,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
or an integral multiple of $1,000,000 (or the Equivalent thereof in any Foreign
Currency, determined as of the time of the applicable Notice of Competitive Bid
Borrowing) in excess thereof and, following the making of each Competitive Bid
Borrowing, the Borrower that has borrowed such Competitive Bid Borrowing shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, any Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) Any Borrower that has borrowed through a Competitive Bid Borrowing
shall repay to the Agent for the account of each Lender that has made a
Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the Competitive
Bid Note evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. Such Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance comprising such Competitive Bid Borrowing from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default under Section 6.01(a), such Borrower
shall pay interest on the amount of unpaid principal of and interest on each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a
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separate Competitive Bid Note of the Borrower payable to the order of the Lender
making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Commitment from the date hereof in the case of each Initial Lender
and from the effective date specified in the Assumption Agreement or the
Assignment and Acceptance, as the case may be, pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing December 31, 2003, and on the Termination Date.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees, and at such times, as the Company and the Agent may
separately agree.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional Ratable Termination or Reduction. The Company shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in an aggregate amount
not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the sum of the
aggregate principal amount of the Competitive Bid Advances denominated in
Dollars then outstanding plus the Equivalent in Dollars (determined as of the
date of the notice of prepayment) of the aggregate principal amount of the
Competitive Bid Advances denominated in Foreign Currencies then outstanding. The
aggregate amount of the Commitments, once reduced as provided in this Section
2.05(a), may not be reinstated.
(b) Non-Ratable Termination by Assignment. The Company shall have the
right, upon at least ten Business Days' written notice to the Agent (which shall
then give prompt notice thereof to the relevant Lender), to require any Lender
to assign, pursuant to and in accordance with the provisions of Section 9.06,
all of its rights and obligations under this Agreement and under the Notes to an
Eligible Assignee selected by the Company; provided, however, that (i) no Event
of Default shall have occurred and be continuing at the time of such request and
at the time of such assignment; (ii) the assignee shall have paid to the
assigning Lender the aggregate principal amount of, and any interest accrued and
unpaid to the date of such assignment on, the Note or Notes of such Lender;
(iii) the Company shall have paid to the assigning Lender any and all facility
fees and other fees payable to such Lender and all other accrued and unpaid
amounts owing to such Lender under any provision of this Agreement (including,
but not limited to, any increased costs or other additional amounts owing under
Section 2.10 and any indemnification for Taxes under Section 2.13) as of the
effective date of such assignment; and (iv) if the assignee selected by the
Company is not an existing Lender, such assignee or the Company shall have paid
the processing and recordation fee required under Section 9.06(a) for such
assignment; provided further that the Company shall have no right to replace
more than three Lenders in any calendar year pursuant to this Section 2.05(b);
and provided further that the assigning Lender's rights under Sections 2.10,
2.13 and 9.04, and its
24
obligations under Section 8.05, shall survive such assignment as to matters
occurring prior to the date of assignment.
(c) Non-Ratable Reduction. (i) The Company shall have the right, at
any time other than during any Rating Condition, upon at least ten Business
Days' notice to a Lender (with a copy to the Agent), to terminate in whole such
Lender's Commitment (determined without giving effect to any Competitive Bid
Reduction). Such termination shall be effective, (i) with respect to such
Lender's unused Commitment, on the date set forth in such notice, provided,
however, that such date shall be no earlier than ten Business Days after receipt
of such notice and (ii) with respect to each Advance outstanding to such Lender,
on the last day of the then current Interest Period relating to such Advance;
provided further, however, that such termination shall not be effective, if,
after giving effect to such termination, the Company would, under this Section
2.05(c), reduce the Lenders' Commitments in any calendar year by an amount in
excess of the Commitments of any three Lenders or $480,000,000, whichever is
greater on the date of such termination. Notwithstanding the preceding proviso,
the Company may terminate in whole the Commitment of any Lender in accordance
with the terms and conditions set forth in Section 2.05(b) or 2.16(b). Upon
termination of a Lender's Commitment under this Section 2.05(c), the Company
will pay or cause to be paid all principal of, and interest accrued to the date
of such payment on, Advances owing to such Lender and pay any facility fees or
other fees payable to such Lender pursuant to the provisions of Section 2.04,
and all other amounts payable to such Lender hereunder (including, but not
limited to, any increased costs or other amounts owing under Section 2.10 and
any indemnification for Taxes under Section 2.13); and upon such payments, the
obligations of such Lender hereunder shall, by the provisions hereof, be
released and discharged; provided, however, that such Lender's rights under
Sections 2.10, 2.13 and 9.04, and its obligations under Section 8.05 shall
survive such release and discharge as to matters occurring prior to such date.
The aggregate amount of the Commitments of the Lenders once reduced pursuant to
this Section 2.05(c) may not be reinstated.
(ii) For purposes of this Section 2.05(c) only, the term "Rating
Condition" shall mean a period commencing with notice (a "Rating Condition
Notice") by the Agent to the Company and the Lenders to the effect that the
Agent has been informed that the rating of the senior public Debt of the Company
is unsatisfactory under the standard set forth in the next sentence, and ending
with notice by the Agent to the Company and the Lenders to the effect that such
condition no longer exists. The Agent shall give a Rating Condition Notice
promptly upon receipt from the Company or any Lender of notice stating, in
effect, that both of S&P and Xxxxx'x (or any successor by merger or
consolidation to the business of either thereof), respectively, then rate the
senior public Debt of the Company lower than BBB- and Baa3. The Company agrees
to give notice to the Agent forthwith upon any change in a rating by either such
organization of the senior public Debt of the Company; the Agent shall have no
duty whatsoever to verify the accuracy of any such notice from the Company or
any Lender or to monitor independently the ratings of the senior public Debt of
the Company and no Lender shall have any duty to give any such notice. The Agent
shall give notice to the Lenders and the Company as to the termination of a
Rating Condition promptly upon receiving a notice from the Company to the Agent
(which notice the Agent shall promptly notify to the Lenders) stating that the
rating of the senior public Debt of the Company does not meet the standard set
forth in the second sentence of this clause (ii), and requesting that the Agent
notify the Lenders of the termination of the Rating Condition. The Rating
Condition shall terminate upon the giving of such notice by the Agent.
25
(d) Termination by a Lender. In the event that a Change of Control
occurs, each Lender may, by notice to the Company and the Agent given not later
than 50 calendar days after such Change of Control, terminate its Commitment,
which Commitment shall be terminated effective as of the later of (i) the date
that is 60 calendar days after such Change of Control or (ii) the end of the
Interest Period for any Advance outstanding at the time of such Change of
Control or for any Advance made pursuant to the next sentence of this Section
2.05(d). Upon the occurrence of a Change of Control, each Borrower's right to
make a Borrowing under this Agreement shall be suspended for a period of 60
calendar days, except for Advances having an interest period ending not later
than 90 calendar days after such Change of Control. A notice of termination
pursuant to this Section 2.05(d) shall not have the effect of accelerating any
outstanding Advance of such Lender and the Notes of such Lender.
(e) Mandatory Reduction. On the Termination Date, if the Company has
made the Term Loan Election in accordance with Section 2.06 prior to such date,
and from time to time thereafter upon each prepayment of the Revolving Credit
Advances, the Commitments of the Lenders shall be automatically and permanently
reduced on a pro rata basis by an amount equal to the amount by which (i) the
aggregate Commitments immediately prior to such reduction exceeds (ii) the
aggregate unpaid principal amount of all Revolving Credit Advances outstanding
at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit Advances.
Each Borrower shall, subject to the next succeeding sentence, repay to the Agent
for the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Revolving Credit Advances then outstanding. The Company
may, upon not less than 15 days' notice to the Agent, elect (the "Term Loan
Election") to convert all of the Revolving Credit Advances outstanding on the
Termination Date in effect at such time into a term loan which the Borrowers
shall repay in full ratably to the Lenders on the Maturity Date; provided that
the Term Loan Election may not be exercised if on the date of notice of the Term
Loan Election or on the date on which the Term Loan Election is to be effected
(x) a Default has occurred and is continuing or (y) the representations and
warranties in Section 4.01 (other than the representations set forth in the last
sentence of subsection (e) thereof and in subsections (f), (h)-(l) and (n)
thereof) are not true and correct as though made on and as of such date. All
Revolving Credit Advances converted into a term loan pursuant to this Section
2.06(a) shall continue to constitute Revolving Credit Advances except that the
Borrowers may not reborrow pursuant to Section 2.01 after all or any portion of
such Revolving Credit Advances have been prepaid pursuant to Section 2.09.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing by such Borrower to each Lender from the
date of such Revolving Credit Advance until such principal amount shall be paid
in full, at the following rates per annum:
26
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be paid in
full.
(ii) Eurocurrency Rate Advances. During such periods as such Revolving
Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest Period for such Revolving Credit Advance to
the sum of (x) the Eurocurrency Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in effect from time
to time plus (z) the Applicable Utilization Fee, if any, in effect from
time to time, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), each Borrower shall pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance owing by
such Borrower to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such Revolving Credit
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder by such Borrower that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 1% per annum above the rate per annum required to be paid on
such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate and each LIBO Rate if the applicable Telerate Page is
unavailable. If any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Company and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Majority
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London interbank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as part of such Borrowing during its
Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the
27
Agent shall forthwith so notify each Borrower and the Lenders, whereupon (A) the
Borrower will, on the last day of the then existing Interest Period therefor,
(1) if such Eurocurrency Rate Advances are denominated in Dollars, either (x)
prepay such Advances or (y) Convert such Advances into Base Rate Advances and
(2) if such Eurocurrency Rate Advances are denominated in any Major Currency,
either (x) prepay such Advances or (y) redenominate such Advances into an
Equivalent amount of Dollars and Convert such Advances into Base Rate Advances,
and (B) the obligation of the Lenders to make Eurocurrency Rate Advances in the
same currency as such Eurocurrency Rate Advances shall be suspended until the
Agent shall notify each Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit Borrowing
comprised of Eurocurrency Rate Advances, shall fail to select the duration of
the Interest Period for such Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will (to the extent such Eurocurrency Rate Advances remain outstanding on such
day) automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars,
Convert into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in any Major Currency, be redenominated into an Equivalent amount of
Dollars and be Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will (to the
extent such Eurocurrency Rate Advance remains outstanding on such day)
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Major Currency, be redenominated into an Equivalent amount of
Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make Eurocurrency Rate Advances shall be suspended.
(e) If the applicable Telerate Page is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will (to the extent such Eurocurrency Rate Advance remains outstanding on
such day) automatically, on the last day of the then existing Interest
Period therefor, (A) if such Eurocurrency Rate Advance is denominated in
Dollars, be prepaid by the applicable Borrower or be automatically
Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Major Currency, be prepaid by the applicable
Borrower or be automatically redenominated into an Equivalent amount of
28
Dollars and Converted into a Base Rate Advance (or if such Advance is then
a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or LIBO Rate Advances shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a) Optional
Prepayments. Each Borrower may, upon notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, given not later than
11:00 A.M. (New York City time) on the second Business Day prior to the date of
such proposed prepayment, in the case of Eurocurrency Rate Advances, and not
later than 11:00 A.M. (New York City time) on the day of such proposed
prepayment, in the case of Base Rate Advances, and, if such notice is given,
such Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or the Equivalent thereof in a Major Currency (determined on the
date notice of prepayment is given) or an integral multiple of $1,000,000 or the
Equivalent thereof in a Major Currency (determined on the date notice of
prepayment is given) in excess thereof and (y) in the event of any such
prepayment of a Eurocurrency Rate Advance other than on the last day of the
Interest Period therefor, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c). Each notice of
prepayment by a Designated Subsidiary shall be given to the Administrative Agent
through the Company.
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A) the
aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such date) of the aggregate principal amount of all Advances
denominated in Foreign Currencies then outstanding exceeds 103% of the aggregate
Commitments of the Lenders on such date, the Company and each other Borrower, if
any, shall thereupon promptly prepay the outstanding principal amount of any
Advances owing by such Borrower in an aggregate amount sufficient to reduce such
sum to an amount not to exceed 100% of the aggregate Commitments of the Lenders
on such date, together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date
other than the last day of an Interest Period or at its maturity, any additional
amounts which such Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall give prompt notice
of any prepayment required under this Section 2.09(b)(i) to the Borrowers and
the Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in Dollars of the
aggregate principal amount of all Eurocurrency Rate Advances denominated in
Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
aggregate principal amount of all Competitive Bid Advances denominated in
Foreign Currencies then outstanding (in each case, determined on the third
Business Day prior to such date), shall exceed 110% of $500,000,000, the Company
and each other Borrower shall prepay the outstanding principal amount of any
such Eurocurrency Rate Advances or any such LIBO Rate Advances owing by such
Borrower, on the
29
last day of the Interest Periods relating to such Advances, in
an aggregate amount sufficient to reduce such sum to an amount not to exceed
$500,000,000, together with any interest accrued to the date of such prepayment
on the principal amounts prepaid. The Agent shall give prompt notice of any
prepayment required under this Section 2.09(b)(ii) to the Borrowers and the
Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances (excluding for purposes of this Section 2.10 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.13 shall govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower of such Advances shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to such Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the Agent), the
Company shall pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable pursuant to
this Section 2.10 shall, upon the written request of the Company delivered to
such Lender and the Agent, assign, pursuant to and in accordance with the
provisions of Section 9.06, all of its rights and obligations under this
Agreement and under the Notes to an Eligible Assignee selected by the Company;
provided, however, that (i) no Default shall have occurred and be continuing at
the time of such request and at the time of such assignment; (ii) the assignee
shall have paid to the assigning Lender the aggregate principal amount of, and
any interest accrued and unpaid to the date of such assignment on, the Note or
Notes of such Lender; (iii) the Company shall have paid to the assigning Lender
any and all facility fees and other fees payable to such Lender and all
30
other accrued and unpaid amounts owing to such Lender under any provision of
this Agreement (including, but not limited to, any increased costs or other
additional amounts owing under this Section 2.10, and any indemnification for
Taxes under Section 2.13) as of the effective date of such assignment and (iv)
if the assignee selected by the Company is not an existing Lender, such assignee
or the Company shall have paid the processing and recordation fee required under
Section 9.06(a) for such assignment; provided further that the assigning
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05, shall survive such assignment as to matters occurring prior to the
date of assignment.
SECTION 2.11. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or any Major Currency or
LIBO Rate Advances in Dollars or in any Foreign Currency or to fund or maintain
Eurocurrency Rate Advances in Dollars or in any Major Currency or LIBO Rate
Advances in Dollars or in any Foreign Currency hereunder, (a) each such
Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be, will
automatically, upon such demand, (i) if such Eurocurrency Rate Advance or LIBO
Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance or
an Advance that bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (ii) if such Eurocurrency Rate Advance or LIBO Rate Advance
is denominated in any Foreign Currency, be redenominated into an Equivalent
amount of Dollars and Converted into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.07(a)(i), as the case may be,
and (b) the obligation of the Lenders to make such Eurocurrency Rate Advances or
such LIBO Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.12. Payments and Computations. (a) Each Borrower shall make
each payment hereunder and under any Notes, except with respect to principal of,
interest on, and other amounts relating to, Advances denominated in a Foreign
Currency, not later than 11:00 A.M. (New York City time) on the day when due in
Dollars to the Agent at the applicable Agent's Account in same day funds. Each
Borrower shall make each payment hereunder and under any Notes with respect to
principal of, interest on, and other amounts relating to Advances denominated in
a Foreign Currency not later than 12:00 Noon (at the Payment Office for such
Foreign Currency) on the day when due in such Foreign Currency to the Agent in
same day funds by deposit of such funds to the applicable Agent's Account. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16 or
9.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.06(c), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under any Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and
31
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves. Upon any Assuming
Lender becoming a Lender hereunder as a result of the effectiveness of an
extension of the Termination Date pursuant to Section 2.16, and upon the Agent's
receipt of such Lender's Assumption Agreement and recording the information
contained therein in the Register, from and after the Increase Date or the
Extension Date, as the case may be, the Agent shall make all payments hereunder
and under any Notes in respect of the interest assumed thereby to the Assuming
Lender.
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, all computations of interest based on the Eurocurrency
Rate or the Federal Funds Rate shall be made by the Agent on the basis of a year
of 360 days and all computations in respect of Competitive Bid Advances shall be
made by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Foreign
Currencies.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
(including the Company in its capacity as a guarantor under Article VII hereof)
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes imposed by the United States or any State thereof and taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction
32
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If any Borrower (including the Company in its capacity as a
guarantor under Article VII hereof) shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
imposed by any jurisdiction on amounts payable under this Section 2.13) imposed
on or paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto; provided, however, that a Borrower shall not be obligated to pay any
amounts in respect of penalties, interest or expenses pursuant to this paragraph
that are payable solely as a result of (i) the failure on the part of the
pertinent Lender or the Agent to pay over those amounts received from the
Borrowers under this clause (c) or (ii) the gross negligence or willful
misconduct on the part of the pertinent Lender or the Agent. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor. Each Lender agrees to
provide reasonably prompt notice to the Agent, the Company and any Borrower of
any imposition of Taxes or Other Taxes against such Lender; provided that
failure to give such notice shall not affect such Lender's rights to
indemnification hereunder. Each Lender agrees that it will, promptly upon a
request by the Company or a Borrower having made an indemnification payment
hereunder, furnish to the Company or such Borrower, as the case may be, such
evidence as is reasonably available to such Lender as to the payment of the
relevant Taxes or Other Taxes, and that it will, if requested by the Company or
such Borrower, cooperate with the Company or such Borrower, as the case may be,
in its efforts to obtain a refund or similar relief in respect of such payment.
(d) Within 30 days after the date of any payment of Taxes by a
Borrower under subsection (a) above, each Borrower shall furnish to the Agent,
at its address referred to in Section 9.02, the original or a certified copy of
a receipt evidencing payment thereof. In the case of any payment hereunder or
under the Notes by or on behalf of any Borrower through an account or branch
outside the United States or by or on behalf of any Borrower by a payor that is
not a United States person, if such Borrower determines that no Taxes are
payable in respect
33
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender, on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender and on the date it changes its Applicable Lending Office in the case of
any Lender, and from time to time thereafter as requested in writing by any
Borrower (unless a change in law renders such Lender unable lawfully to do so),
shall provide the Agent and each Borrower with two original Internal Revenue
Service forms W-8ECI or W-8BEN, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. In addition, each Lender
further agrees to provide any Borrower with any form or document as any Borrower
may reasonably request which is required by any taxing authority outside the
United States in order to secure an exemption from, or reduction in the rate of,
withholding tax in such jurisdiction, if available to such Lender. If the forms
provided by a Lender at the time such Lender first becomes a party to this
Agreement or changes its Applicable Lending Office indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, in the case of a
Lender that initially becomes a party to this Agreement pursuant to an
assignment in accordance with Section 9.06 or a Lender that undertakes a change
in its Applicable Lending Office, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable on the
date of such assignment or change with respect to the assignee Lender or Lender
after the change in Applicable Lending Office, but only to the extent of United
States withholding tax included in Taxes, if any, applicable on the date of such
assignment or change with respect to the assignor Lender or Lender prior to such
change in Applicable Lending Office . If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form W-8ECI or W-8BEN, that a Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to each Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide each Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 2.13(a) or (c) with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required
34
hereunder, each Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) If any Borrower is required to pay any additional amount to any
Lender or to the Agent or on behalf of any of them to any taxing authority
pursuant to this Section 2.13, such Lender shall, upon the written request of
the Company delivered to such Lender and the Agent, assign, pursuant to and in
accordance with the provisions of Section 9.06, all of its rights and
obligations under this Agreement and under the Notes to an Eligible Assignee
selected by the Company; provided, however, that (i) no Default shall have
occurred and be continuing at the time of such request and at the time of such
assignment; (ii) the assignee shall have paid to the assigning Lender the
aggregate principal amount of, and any interest accrued and unpaid to the date
of such assignment on, the Note or Notes of such Lender; (iii) the Company shall
have paid to the assigning Lender any and all facility fees and other fees
payable to such Lender and all other accrued and unpaid amounts owing to such
Lender under any provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section 2.10, and any
indemnification for Taxes under this Section 2.13) as of the effective date of
such assignment; and (iv) if the assignee selected by the Company is not an
existing Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.06(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, if any, or otherwise) on account of the Revolving Credit Advances owing
to it (other than pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16
or 9.04(c)) in excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Revolving
Credit Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff, if any) with respect to such participation as
fully as if such Lender were the direct creditor of such Borrower in the amount
of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes of such Borrower and its Subsidiaries, including, without
limitation, backstop of commercial paper.
35
SECTION 2.16. Extension of Termination Date. (a) At least 45 (but no
earlier than 60) days prior to the Termination Date then in effect and provided
all representations and warranties are true and correct in all material respects
and no Event of Default has occurred and is continuing, the Company may, at its
option, by written notice to the Agent, request that the Lenders extend the
Termination Date for an additional 364 days from the Termination Date then in
effect; provided, however, that the Company shall not have made the Term Loan
Election for Revolving Credit Advances outstanding on such Termination Date
prior to such time. Each Lender, in its sole discretion, shall consent or not
consent to such extension and shall notify the Agent of its consent or
nonconsent to such extension within 20 Business Days of notice of such request
from the Agent. If all of the Lenders consent in writing, the then applicable
Termination Date shall, effective as at such Termination Date (the "Extension
Date"), be extended for a period of 364 days from such Extension Date.
(b) If not all of the Lenders consent, pursuant to subsection (a) of
this Section 2.16, to an extension of the Termination Date then in effect (the
Lenders so consenting in writing being the "Consenting Lenders", and any Lender
not so consenting being a "Non-Consenting Lender"), the Company may:
(i) arrange for one or more Consenting Lenders or other Eligible
Assignees as Assuming Lenders to assume, effective on the Extension Date,
any Non-Consenting Lender's Commitment and all of the obligations of such
Lender under this Agreement thereafter arising, and effective on such
Extension Date, each such Consenting Lender or such Assuming Lender will be
substituted for such Non-Consenting Lender under this Agreement; provided,
however, that the amount of the Commitment of any such Assuming Lender as a
result of such substitution shall in no event be less than $10,000,000;
provided further that (i) any such Consenting Lender or Assuming Lender
shall have paid to such Non-Consenting Lender the aggregate principal
amount of, and any interest accrued and unpaid to the date of the
assignment on, the Advances of such Non-Consenting Lender; (ii) the Company
shall have paid to such Non-Consenting Lender any and all facility fees and
other fees payable to such Non-Consenting Lender and all other accrued and
unpaid amounts owing to such Non-Consenting Lender under any provision of
this Agreement (including, but not limited to, any increased costs or other
additional amounts owing under Section 2.10, and any indemnification for
Taxes under this Section 2.13) as of the effective date of such assignment;
and (iii) with respect to any such Assuming Lender, such Assuming Lender or
the Company shall have paid the applicable processing and recordation fee
required under Section 9.06(a) for such assignment; provided further that
such Non-Consenting Lender's rights under Sections 2.10, 2.13 and 9.04, and
its obligations under Section 8.05, shall survive such substitution as to
matters occurring prior to the date of substitution; provided further that,
on or prior to the tenth day prior to the Extension Date, (x) any such
Assuming Lender shall have delivered to the Company and the Agent an
Assumption Agreement in substantially the form of Exhibit D hereto, duly
executed by such Assuming Lender, such Non-Consenting Lender and the
Company, (y) any such Consenting Bank shall have delivered confirmation in
writing satisfactory to the Agent as to its increased Commitment and (z)
each Non-Consenting Lender being replaced pursuant to this clause (i) shall
have delivered to the Agent any Revolving Credit Note or Notes held by such
Non-Consenting Lender; and provided further that, if requested by any
Assuming Lender, each Borrower,
36
at its own expense, shall have executed and delivered to the Agent no later
than 10:00 A.M. (New York City time) on the Extension Date, Revolving
Credit Notes payable to the order of each such Assuming Lender, if any,
dated as of the Extension Date and substantially in the form of Exhibit A-1
hereto; or
(ii) subject to the giving of notice to such Non-Consenting Lender at
least four days prior to the Extension Date, pay, prepay or cause to be
prepaid, on and effective as of the Extension Date, all principal of, and
interest accrued to the date of such payment on, Advances and all other
amounts owing to such Non-Consenting Lender hereunder (including, but not
limited to, any increased costs or other additional amounts owing under
Section 2.10 and any indemnification for Taxes under Section 2.13) and
terminate in whole any Non-Consenting Lender's Commitment, notwithstanding
the provisions of Section 2.05; and, upon such payment or prepayment, the
obligations of such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged; provided, however, that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05 shall survive such release and discharge as
to matters occurring prior to the Extension Date.
(c) In the event that, on or prior to the then applicable Extension
Date, all Non-Consenting Lenders shall have been superseded by Consenting
Lenders or Assuming Lenders or shall have had their Commitments terminated
pursuant to subsection (b)(i) or (b)(ii) above, the Termination Date then in
effect shall be extended for the additional one-year period as described in
subsection (a) above, each Non-Consenting Lender shall have no further
Commitment hereunder, and each Assuming Lender, if any, shall thereafter be
substituted as a party to this Agreement and be a Lender for the purposes of
this Agreement, without any further acknowledgment by or the consent of the
Lenders. The Agent shall thereupon promptly deliver the new Revolving Credit
Notes to the respective Assuming Lenders requesting such Notes and record in the
Register the relevant information with respect to each Consenting Lender and
each such Assuming Lender.
(d) In the event that (x) as to a Non-Consenting Lender, neither
procedure contemplated by subsection (b)(i) or (b)(ii) above is implemented in a
timely basis or (y) the Company shall, by written notice to the Agent at least
four days prior to the Extension Date, withdraw its request for the extension of
the Termination Date then in effect, such request by the Company shall be deemed
not to have been made, all actions theretofore taken under subsection (b)(i) or
(b)(ii) above shall be deemed to be of no effect, the Agent shall return any
Revolving Credit Notes received from any Non-Consenting Lender to such
Non-Consenting Lender and all the rights and obligations of the parties shall
continue as if no such request had been made.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon request of any Lender to such Borrower (with a copy of such notice to the
Agent) that such Lender receive a Revolving Credit Note to evidence (whether for
purposes of pledge, enforcement or otherwise) the Revolving Credit Advances
owing to, or to be made by,
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such Lender, such Borrower shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.06(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from each Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrowers to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2002, except as otherwise publicly disclosed prior to the date
hereof.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or to
the knowledge of the Company Threatened before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material
Adverse Effect, other than the matters described on Schedule 3.01(b) hereto
(the "Disclosed Litigation") or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note of the Company or
the consummation of the transactions contemplated hereby, and there shall
have been no adverse change in the status, or financial effect on the
Company or any of its Subsidiaries, of the Disclosed Litigation from that
described on Schedule 3.01(b) hereto.
(c) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders in respect of this Agreement.
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(d) On the Effective Date, the following statements shall be true and
the Agent shall have received a certificate signed by a duly authorized
officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(e) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent:
(i) The Revolving Credit Notes of the Company to the order of the
Lenders to the extent requested by any Lender pursuant to Section
2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement and the Notes of the
Company, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers
of the Company authorized to sign this Agreement and the Notes of the
Company and the other documents to be delivered hereunder.
(iv) A favorable opinion of Xxxx X. Xxxxxx, Assistant General
Counsel of the Company, substantially in the form of Exhibit G hereto
and as to such other matters as any Lender through the Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, substantially in the form of Exhibit I hereto.
(vi) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.02. Conditions Precedent to Initial Borrowing. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing hereunder is subject to the following conditions precedent:
(a) The Effective Date shall have occurred.
(b) The Company shall have terminated the commitments and paid in full
all outstanding obligations under the 364-Day Credit Agreement dated as of
November 27, 2002 among the Company, the lenders parties thereto and
Citibank, as administrative agent, as amended, and each Lender that is a
party to said credit agreement hereby waives any requirement of prior
notice to the termination of commitments or prepayment of obligations under
said credit agreement.
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(c) The Company shall have paid all accrued fees and expenses of the
Agent (including the billed fees and expenses of counsel to the Agent).
SECTION 3.03. Initial Loan to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.07 is subject to the Agent's receipt on or
before the date of such initial Advance of each of the following, in form and
substance satisfactory to the Agent and dated such date, and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Borrower to the order of the
Lenders to the extent requested by any Lender pursuant to Section 2.17.
(b) Certified copies of the resolutions of the Board of Directors of
such Borrower (with a certified English translation if the original thereof
is not in English) approving this Agreement and the Notes of such Borrower,
and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and such
Notes.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrower certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the Notes of such Borrower
and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the Company,
dated as of the date of such initial Advance, certifying that such Borrower
shall have obtained all governmental and third party authorizations,
consents, approvals (including exchange control approvals) and licenses
required under applicable laws and regulations necessary for such Borrower
to execute and deliver this Agreement and the Notes and to perform its
obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit E hereto.
(f) Evidence of the Process Agent's acceptance of its appointment
pursuant to Section 9.12(a) as the agent of such Borrower, substantially in
the form of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated Subsidiary,
dated the date of such initial Advance, substantially in the form of
Exhibit H hereto.
(h) Such other approvals, opinions or documents as any Lender, through
the Agent, may reasonably request.
SECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing.
The obligation of each Lender to make a Revolving Credit Advance on the occasion
of each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing (a) the following
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statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing and the acceptance by the Borrower requesting such
Revolving Credit Borrowing of the proceeds of such Revolving Credit Borrowing
shall constitute a representation and warranty by such Borrower that on the date
of such Borrowing such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsections (f), (h)-(l) and (n) thereof) are
correct on and as of the date of such Revolving Credit Borrowing, before
and after giving effect to such Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and additionally, if such Revolving Credit Borrowing shall have been
requested by a Designated Subsidiary, the representations and warranties of
such Designated Subsidiary contained in its Designation Letter are correct
on and as of the date of such Revolving Credit Borrowing, before and after
giving effect to such Revolving Credit Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender and substantially in the form of Exhibit A-2 hereto for each of the one
or more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower
requesting such Competitive Bid Borrowing of the proceeds of such Competitive
Bid Borrowing shall constitute a representation and warranty by such Borrower
that on the date of such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsections (f), (h)-(l) and (n) thereof) are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and, if such Competitive Bid Borrowing shall have been requested by a
41
Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Letter are correct on
and as of the date of such Competitive Bid Borrowing, before and after
giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result of
which the information concerning such Borrower that has been provided to
the Agent and each Lender by such Borrower in connection herewith would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading,
and (iv) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.06. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes of the Company, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do
not and will not cause or constitute a violation of any provision of law or
regulation or any provision of the Certificate of Incorporation or By-Laws
of the Company or result in the breach of, or constitute a default or
require any consent under, or result in the creation of any lien, charge or
encumbrance upon any of the properties, revenues, or assets of the Company
pursuant to, any indenture or other agreement or instrument to which the
Company is a party or by which the Company or its property may be bound or
affected.
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(c) No authorization, consent, approval (including any exchange
control approval), license or other action by, and no notice to or filing
or registration with, any governmental authority, administrative agency or
regulatory body or any other third party is required for the due execution,
delivery and performance by the Company of this Agreement or the Notes of
the Company.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Company. This
Agreement is, and each of the Notes of the Company when delivered hereunder
will be, the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with their respective terms, except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
(e) The Consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at December 31, 2002, and the related Consolidated
statements of income and cash flows of the Company and its Consolidated
Subsidiaries for the fiscal year then ended (together with the notes to the
financial statements of the Company and its Consolidated Subsidiaries and
the Consolidated statements of cash flows of the Company and its
Consolidated Subsidiaries), accompanied by an opinion of one or more
nationally recognized firms of independent public accountants, and the
Consolidated balance sheet of the Company and its Consolidated Subsidiaries
as at September 30, 2003, and the related Consolidated statements of income
and cash flows of the Company and its Consolidated Subsidiaries for the
nine months then ended, duly certified by the principal financial officer
of the Company, copies of which have been furnished to each Lender, are
materially complete and correct, and fairly present, subject, in the case
of said balance sheet as at September 30, 2003, and said statements of
income and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Company and its
Consolidated Subsidiaries as at such dates and the Consolidated results of
the operations of the Company and its Consolidated Subsidiaries for the
periods ended on such dates, all in accordance with GAAP consistently
applied, except as otherwise noted therein; the Company and its
Consolidated Subsidiaries do not have on such date any material contingent
liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in such
balance sheet or the notes thereto as at such date. No Material Adverse
Change has occurred since December 31, 2002, except as otherwise publicly
disclosed prior to the date hereof.
(f) There is no action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, pending or to the
knowledge of the Company Threatened affecting the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator that (i)
is reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation), or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there has been no adverse change in
the status, or financial effect on the Company or any of its Subsidiaries,
of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.
43
(g) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of the Borrower of such
Advance or of such Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or subject to any restriction
contained in any agreement or instrument between such Borrower and any
Lender or any Affiliate of any Lender relating to Debt and within the scope
of Section 6.01(e) will be margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System).
(h) The Company and each wholly-owned direct Subsidiary of the Company
have, in the aggregate, met their minimum funding requirements under ERISA
with respect to their Plans in all material respects and have not incurred
any material liability to the PBGC, other than for the payment of premiums,
in connection with such Plans.
(i) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Company or any of its ERISA Affiliates that has
resulted in or is reasonably likely to result in a material liability of the
Company or any of its ERISA Affiliates.
(j) The Schedules B (Actuarial Information) to the 2002 annual reports
(Form 5500 Series) with respect to each Plan of the Company or any of its ERISA
Affiliates, copies of which have been filed with the Internal Revenue Service
(and which will be furnished to any Bank through the Administrative Agent upon
the request of such Bank through the Administrative Agent to the Company), are
complete and accurate in all material respects and fairly present in all
material respects the funding status of such Plans at such date, and since the
date of each such Schedule B there has been no material adverse change in
funding status.
(k) Neither the Company nor any of its ERISA Affiliates has incurred
or reasonably expects to incur any Withdrawal Liability to any Multiemployer
Plan in an annual amount exceeding 6% of Net Tangible Assets of the Company and
its Consolidated Subsidiaries.
(l) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA. No such Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, in a
reorganization or termination which might reasonably be expected to result in a
liability of the Company in an amount in excess of $5,000,000.
(m) The Company is not, and immediately after the application by the
Company of the proceeds of each Loan will not be, (a) an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(n) To the best of the Company's knowledge, the operations and
properties of the Company and its Subsidiaries taken as a whole comply in
all material respects with all Environmental Laws, all necessary
Environmental Permits have been applied for or have been obtained and are
in effect for the operations and properties of the Company and its
Subsidiaries and the Company and its Subsidiaries are in compliance in all
44
material respects with all such Environmental Permits. To the best of the
Company's knowledge no circumstances exist that would be reasonably likely
to form the basis of an Environmental Action against the Company or any of
its Subsidiaries or any of their properties that could have a Material
Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) Compliance with Laws, Etc. Comply, and cause each Designated
Subsidiary to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws as provided in Section 5.01(j), if failure to
comply with such requirements would have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
Designated Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or on its income or profits
or upon any of its property; provided, however, that neither the Company
nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained.
(c) Maintenance of Insurance. Maintain, and cause each Designated
Subsidiary to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each Designated Subsidiary to preserve and maintain, its
corporate existence and all its material rights (charter and statutory)
privileges and franchises; provided, however, that the Company and each
Designated Subsidiary may consummate any merger, consolidation or sale of
assets permitted under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice but not more than once a year unless an Event of
Default has occurred and is continuing, permit the Agent or any of the
Lenders or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit
the properties of, the Company and any Designated Subsidiary, and to
discuss the affairs, finances and accounts of the Company and any
Designated Subsidiary with any of their officers or directors and with
their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each Designated Subsidiary to
keep, proper books of record and account, in which full and correct entries
shall be made of all
45
financial transactions and the assets and business of the Company and each
Designated Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each Designated Subsidiary to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted; provided, however,
that neither the Company nor any of its Designated Subsidiaries shall be
required to maintain or preserve any property if the failure to maintain or
preserve such property shall not have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Agent (with a copy for each
Lender) and the Agent shall promptly forward the same to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, a Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and a
Consolidated statement of income and cash flows of the Company and its
Consolidated Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures as of
the corresponding date and for the corresponding period of the
preceding fiscal year, all in reasonable detail and certified by the
principal financial officer, principal accounting officer, the
Vice-President and Treasurer or an Assistant Treasurer of the Company,
subject, however, to year-end auditing adjustments, which certificate
shall include a statement that such officer has no knowledge, except
as specifically stated, of any condition, event or act which
constitutes a Default;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, a Consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the end
of such fiscal year and the related Consolidated statements of income
and cash flows of the Company and its Consolidated Subsidiaries for
such fiscal year setting forth in each case in comparative form the
corresponding figures as of the close of and for the preceding fiscal
year, all in reasonable detail and accompanied by an opinion of
independent public accountants of nationally recognized standing, as
to said financial statements and a certificate of the principal
financial officer, principal accounting officer, the Vice-President
and Treasurer or an Assistant Treasurer of the Company stating that
such officer has no knowledge, except as specifically stated, of any
condition, event or act which constitutes a Default;
(iii) copies of the Forms 8-K and 10-K reports (or similar
reports) which the Company is required to file with the Securities and
Exchange Commission of the United States of America, promptly after
the filing thereof;
46
(iv) copies of each annual report, quarterly report, special
report or proxy statement mailed to substantially all of the
stockholders of the Company, promptly after the mailing thereof to the
stockholders;
(v) immediate notice of the occurrence of any Default of which
the principal financial officer, principal accounting officer, the
Vice-President and Treasurer or an Assistant Treasurer of the Company
shall have knowledge;
(vi) as soon as available and in any event within 15 days after
the Company or any of its ERISA Affiliates knows or has reason to know
that any ERISA Event has occurred, a statement of a senior officer of
the Company with responsibility for compliance with the requirements
of ERISA describing such ERISA Event and the action, if any, which the
Company or such ERISA Affiliate proposes to take with respect thereto;
(vii) at the request of any Lender, promptly after the filing
thereof with the Internal Revenue Service, copies of Schedule B
(Actuarial Information) to each annual report (Form 5500 series) filed
by the Company or any of its ERISA Affiliates with respect to each
Plan;
(viii) promptly after receipt thereof by the Company or any of
its ERISA Affiliates, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to
administer any Plan;
(ix) promptly after such request, such other documents and
information relating to any Plan as any Lender may reasonably request
from time to time;
(x) promptly and in any event within five Business Days after
receipt thereof by the Company or any of its ERISA Affiliates from the
sponsor of a Multiemployer Plan, copies of each notice concerning (A)
(x) the imposition of Withdrawal Liability in an amount in excess of
$5,000,000 with respect to any one Multiemployer Plan or in an
aggregate amount in excess of $25,000,000 with respect to all such
Multiemployer Plans within any one calendar year or (y) the
reorganization or termination, within the meaning of Title IV of
ERISA, of any Multiemployer Plan that has resulted or might reasonably
be expected to result in Withdrawal Liability in an amount in excess
of $5,000,000 or of all such Multiemployer Plans that has resulted or
might reasonably be expected to result in Withdrawal Liability in an
aggregate amount in excess of $25,000,000 within any one calendar year
and (B) the amount of liability incurred, or that may be incurred, by
the Company or any of its ERISA Affiliates in connection with any
event described in such subclause (x) or (y);
(xi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any Designated Subsidiary of the
type described in Section 4.01(f); and
47
(xii) from time to time such further information respecting the
financial condition and operations of the Company and its Subsidiaries
as any Lender may from time to time reasonably request.
(i) Authorizations. Obtain, and cause each Designated Subsidiary to
obtain, at any time and from time to time all authorizations, licenses,
consents or approvals (including exchange control approvals) as shall now
or hereafter be necessary or desirable under applicable law or regulations
in connection with its making and performance of this Agreement and, upon
the request of any Lender, promptly furnish to such Lender copies thereof.
(j) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(k) Change of Control. If a Change of Control shall occur, within ten
calendar days after the occurrence thereof, provide the Agent with notice
thereof, describing therein in reasonable detail the facts and
circumstances giving rise to such Change in Control.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Liens, Etc. Issue, assume or guarantee, or permit any of its
Subsidiaries owning Restricted Property to issue, assume or guarantee, any
Debt secured by Liens on or with respect to any Restricted Property without
effectively providing that its obligations to the Lenders under this
Agreement and any of the Notes shall be secured equally and ratably with
such Debt so long as such Debt shall be so secured, except that the
foregoing shall not apply to:
(i) Liens affecting property of the Company or any of its
Subsidiaries existing on the Effective Date in effect as of the date
hereof or of any corporation existing at the time it becomes a
Subsidiary of the Company or at the time it is merged into or
consolidated with the Company or a Subsidiary of the Company;
(ii) Liens on property of the Company or its Subsidiaries
existing at the time of acquisition thereof or incurred to secure the
payment of all or part of
48
the purchase price thereof or to secure Debt incurred prior to, at the
time of or within 24 months after acquisition thereof for the purpose
of financing all or part of the purchase price thereof;
(iii) Liens on property of the Company or its Subsidiaries (in
the case of property that is, in the opinion of the Board of Directors
of the Company, substantially unimproved for the use intended by the
Company) to secure all or part of the cost of improvement thereof, or
to secure Debt incurred to provide funds for any such purpose;
(iv) Liens which secure only Debt owing by a Subsidiary of the
Company to the Company or to another Subsidiary of the Company;
(v) Liens in favor of the United States of America, any State,
any foreign country, or any department, agency, instrumentality, or
political subdivisions of any such jurisdiction, 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 or cost of constructing or
improving the property subject thereto, including, without limitation,
Liens to secure Debt of the pollution control or industrial revenue
bond type; or
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses (i) to (v) inclusive of any
Debt secured thereby, provided that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement Lien shall be limited to
all or part of the property which secured the Lien extended, renewed
or replaced (plus improvements on such property);
provided, however, that, the Company and any one or more Subsidiaries
owning Restricted Property may issue, assume or guarantee Debt secured by
Liens which would otherwise be subject to the foregoing restrictions in an
aggregate principal amount which, together with the aggregate outstanding
principal amount of all other Debt of the Company and its Subsidiaries
owning Restricted Property that would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clause (i)
through (vi) above) and the aggregate value of the Sale and Leaseback
Transactions in existence at such time, does not at any one time exceed 10%
of the Net Tangible Assets of the Company and its Consolidated
Subsidiaries; and provided further that the following type of transaction,
among others, shall not be deemed to create Debt secured by Liens: Liens
required by any contract or statute in order to permit the Company or any
of its Subsidiaries to perform any contract or subcontract made by it with
or at the request of the United States of America, any foreign country or
any department, agency or instrumentality of any of the foregoing
jurisdictions.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or
49
substantially all of its assets (whether now owned or hereafter acquired)
to, any Person; provided, however, that the Company may merge or
consolidate with any other Person so long as the Company is the surviving
corporation and so long as no Default shall have occurred and be continuing
at the time of such proposed transaction or would result therefrom.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay: (i) any principal of any Advance
when the same becomes due and payable; (ii) any facility fees or any
interest on any Advance payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or (iii) any
other fees or other amounts payable under this Agreement or any Notes
within 30 days after the same becomes due and payable other than those fees
and amounts the liabilities for which are being contested in good faith by
such Borrower and which have been placed in Escrow by such Borrower; or
(b) Any representation or warranty made (or deemed made) by any
Borrower (or any of its officers) in connection with this Agreement or by
any Designated Subsidiary in the Designation Letter pursuant to which such
Designated Subsidiary became a Borrower hereunder shall prove to have been
incorrect in any material respect when made (or deemed made); or
(c) The Company shall repudiate its obligations under, or shall
default in the due performance or observance of, any term, covenant or
agreement contained in Article VII of this Agreement; or
(d) (i) The Company shall fail to perform or observe any other term,
covenant or agreement contained in Section 5.02(a) and such failure shall
remain unremedied for a period of 30 days after any Lender shall have given
notice thereof to the Company (through the Agent), or (ii) the Company or
any other Borrower shall fail to perform or to observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for a period
of 30 days after any Lender shall have given notice thereof to the relevant
Borrower or, in the case of the Company, any of the principal financial
officer, the principal accounting officer, the Vice-President and Treasurer
or an Assistant Treasurer of the Company, and in the case of any other
Borrower, a responsible officer of such Borrower, first has knowledge of
such failure; or
(e) (i) The Company or any of its Consolidated or Designated
Subsidiaries shall fail to pay any principal of or premium or interest on
any Debt (other than Debt owed to the Company or its Subsidiaries or
Affiliates) that is outstanding in a principal amount of at least
$150,000,000 in the aggregate (but excluding Debt outstanding
50
hereunder and Debt owed by such party to any bank, financial institution or
other institutional lender to the extent the Borrower or any Subsidiary has
deposits with such bank, financial institution or other institutional
lender sufficient to repay such Debt) of the Company or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt, or (ii) any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt, or (iii) any such
Debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; provided, however, that, for purposes of this
Section 6.0l(e), in the case of (x) Debt of any Person (other than the
Company or one of its Consolidated Subsidiaries) which the Company has
guaranteed and (y) Debt of Persons (other than the Company or one of its
Consolidated Subsidiaries) the payment of which is secured by a Lien on
property of the Company or such Subsidiary, such Debt shall be deemed to
have not been paid when due or to have been declared to be due and payable
only when the Company or such Subsidiary, as the case may be, shall have
failed to pay when due any amount which it shall be obligated to pay with
respect to such Debt; provided further, however, that any event or
occurrence described in this subsection (e) shall not be an Event of
Default if (A) such event or occurrence relates to the Debt of any
Subsidiary of the Company located in China, India, the Commonwealth of
Independent States or Turkey (collectively, the "Exempt Countries"), (B)
such Debt is not guaranteed or supported in any legally enforceable manner
by any Borrower or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such event or occurrence is due to the
direct or indirect action of any government entity or agency in any Exempt
Country and (D) as of the last day of the calendar quarter immediately
preceding such event or occurrence, the book value of the assets of such
Subsidiary does not exceed $150,000,000 and the aggregate book value of the
assets of all Subsidiaries of the Company located in Exempt Countries the
Debt of which would cause an Event of Default to occur but for the effect
of this proviso does not exceed $500,000,000; or
(f) The Company or any of its Designated or Consolidated Subsidiaries
shall generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any such Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of
51
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Company or any such Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); provided, however, that any event or occurrence
described in this subsection (f) shall not be an Event of Default if (A)
such event or occurrence relates to any Subsidiary of the Company located
in an Exempt Country, (B) the Debt of such Subsidiary is not guaranteed or
supported in any legally enforceable manner by any Borrower or by any
Subsidiary or Affiliate of the Company located outside the Exempt
Countries, (C) such event or occurrence is due to the direct or indirect
action of any government entity or agency in any Exempt Country and (D) as
of the last day of the calendar quarter immediately preceding such event or
occurrence, the book value of the assets of such Subsidiary does not exceed
$150,000,000 and the aggregate book value of the assets of all Subsidiaries
of the Company located in Exempt Countries with respect to which the
happening of the events or occurrences described in this subsection (f)
would cause an Event of Default to occur but for the effect of this proviso
does not exceed $500,000,000; or
(g) Any judgment or order for the payment of money in excess of
$150,000,000 shall be rendered against the Company or any of its
Subsidiaries and enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(g) if (A) such judgment or order is
rendered against any Subsidiary of the Company located in an Exempt
Country, (B) the Debt of such Subsidiary is not guaranteed or supported in
any legally enforceable manner by any Borrower or by any Subsidiary or
Affiliate of the Company located outside the Exempt Countries, (C) such
judgment or order is due to the direct or indirect action of any government
entity or agency in any Exempt Country and (D) as of the last day of the
calendar quarter immediately preceding the tenth consecutive day of the
stay period referred to above, the book value of the assets of such
Subsidiary does not exceed $150,000,000 and the aggregate book value of the
assets of all Subsidiaries of the Company located in Exempt Countries the
judgments and orders against which would cause an Event of Default to occur
but for the effect of this proviso does not exceed $500,000,000; or
(h) Any non-monetary judgment or order shall be rendered against the
Company or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect, and enforcement proceedings shall have been
commenced by any Person upon such judgment or order and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(i) Any license, consent, authorization or approval (including
exchange control approvals) now or hereafter necessary to enable the
Company or any Designated Subsidiary to comply with its obligations herein
or under any Notes of such Borrower shall be modified, revoked, withdrawn,
withheld or suspended; or
52
(j) (i) Any ERISA Event shall have occurred with respect to a Plan of
any Borrower or any of its ERISA Affiliates and the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans of the Borrowers and
their ERISA Affiliates with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrowers and their ERISA
Affiliates related to such ERISA Event) exceeds $150,000,000; or (ii) any
Borrower or any of its ERISA Affiliates shall be in default, as defined in
Section 4219(c)(5) of ERISA, with respect to any payment of Withdrawal
Liability and the sum of the outstanding balance of such Withdrawal
Liability and the outstanding balance of any other Withdrawal Liability
that any Borrower or any of its ERISA Affiliates has incurred exceeds 6% of
Net Tangible Assets of the Company and its Consolidated Subsidiaries; or
(iii) any Borrower or any of its ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan of such Borrower or any of its ERISA
Affiliates that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of
the Borrowers and their ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
plan years of such Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an amount exceeding
$150,000,000; or
then, and (i) in any such event (except as provided in clause (ii) below), the
Agent (A) shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Company, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and (B)
shall at the request, or may with the consent, of the Majority Lenders, by
notice to the Company, declare the Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Advances, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers
and (ii) in the case of the occurrence of any Event of Default described in
clause (i) or (ii) of Section 6.01(a), the Agent shall, at the request, or may
with the consent, of the Lenders which have made or assumed under this Agreement
at least 66-2/3% of the aggregate principal amount (based in respect of
Competitive Bid Advances denominated in Foreign Currencies on the Equivalent in
Dollars on the date of such request) of Competitive Bid Advances then
outstanding and to whom such Advances are owed, by notice to the Company,
declare the full unpaid principal of and accrued interest on all Competitive Bid
Advances hereunder and all other obligations of the Borrowers hereunder to be
immediately due and payable, whereupon such Advances and such obligations shall
be immediately due and payable, without presentment, demand, protest or other
further notice of any kind, all of which are hereby expressly waived by the
Borrowers; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Borrower under the United States
Bankruptcy Code of 1978, as amended, (x) the obligation of each Lender to make
Advances shall automatically be terminated and (y) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
53
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable consideration,
receipt whereof is hereby acknowledged, and to induce each Lender to make
Advances to the Designated Subsidiaries and to induce the Agent to act
hereunder, the Company hereby unconditionally and irrevocably guarantees to each
Lender and the Agent that:
(a) the principal of and interest on each Advance to each Designated
Subsidiary shall be promptly paid in full when due (whether at stated
maturity, by acceleration or otherwise) in accordance with the terms
hereof, and, in case of any extension of time of payment, in whole or in
part, of such Advance, that all such sums shall be promptly paid when due
(whether at stated maturity, by acceleration or otherwise) in accordance
with the terms of such extension; and
(b) all other amounts payable hereunder by any Designated Subsidiary
to any Lender or the Agent or the Sub-Agent, as the case may be, shall be
promptly paid in full when due in accordance with the terms hereof (the
obligations of the Designated Subsidiaries under these subsections (a) and
(b) of this Section 7.01 being the "Obligations").
In addition, the Company hereby unconditionally and irrevocably agrees that upon
default in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal of, or interest on, any Advance to any Designated
Subsidiary or such other amounts payable by any Designated Subsidiary to any
Lender or the Agent, the Company will forthwith pay the same, without further
notice or demand.
SECTION 7.02. Guarantee Absolute. The Company guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Agent with respect thereto. The liability of the Company under this
guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from this Agreement (including,
without limitation, any extension of the Termination Date pursuant to
Section 2.16);
(c) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Company, any Borrower or a guarantor.
54
This guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any of the Lenders or the Agent upon the insolvency,
bankruptcy or reorganization of the Company or any Borrower or otherwise, all as
though such payment had not been made.
SECTION 7.03. Waivers. The Company hereby expressly waives diligence,
presentment, demand for payment, protest, any requirement that any right or
power be exhausted or any action be taken against any Designated Subsidiary or
against any other guarantor of all or any portion of the Advances, and all other
notices and demands whatsoever.
SECTION 7.04. Remedies. Each of the Lenders and the Agent may pursue
its respective rights and remedies under this Article VII and shall be entitled
to payment hereunder notwithstanding any other guarantee of all or any part of
the Advances to the Designated Subsidiaries, and notwithstanding any action
taken by any such Lender or the Agent to enforce any of its rights or remedies
under such other guarantee, or any payment received thereunder. The Company
hereby irrevocably waives any claim or other right that it may now or hereafter
acquire against any Designated Subsidiary that arises from the existence,
payment, performance or enforcement of the Company's obligations under this
Article VII, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or the Lenders against any
Designated Subsidiary, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Designated Subsidiary, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right. If any amount
shall be paid to the Company in violation of the preceding sentence at any time
when all the Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Lenders and the Agent and shall forthwith
be paid to the Agent for its own account and the accounts of the respective
Lenders to be credited and applied to the Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Obligations or other amounts payable under this Agreement
thereafter arising. The Company acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and that the waiver set forth in this section is knowingly made in contemplation
of such benefits.
SECTION 7.05. No Stay. The Company agrees that, as between (a) the
Company and (b) the Lenders and the Agent, the Obligations of any Designated
Subsidiary guaranteed by the Company hereunder may be declared to be forthwith
due and payable as provided in Article VI hereof for purposes of this Article
VII by declaration to the Company as guarantor notwithstanding any stay,
injunction or other prohibition preventing such declaration as against such
Designated Subsidiary and that, in the event of such declaration to the Company
as guarantor, such Obligations (whether or not due and payable by such
Designated Subsidiary), shall forthwith become due and payable by the Company
for purposes of this Article VII.
SECTION 7.06. Survival. This guarantee is a continuing guarantee and
shall (a) remain in full force and effect until payment in full (after the
Termination Date) of the Obligations and all other amounts payable under this
guaranty, (b) be binding upon the Company, its successors and assigns, (c) inure
to the benefit of and be enforceable by each
55
Lender (including each Assuming Lender and each assignee Lender pursuant to
Section 9.06) and the Agent and their respective successors, transferees and
assigns and (d) shall be reinstated if at any time any payment to a Lender or
the Agent hereunder is required to be restored by such Lender or the Agent.
Without limiting the generality of the foregoing clause (c), each Lender may
assign or otherwise transfer its interest in any Advance to any other person or
entity, and such other person or entity shall thereupon become vested with all
the rights in respect thereof granted to such Lender herein or otherwise.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (a) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.06; (b) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Borrower
or to inspect the property (including the books and records) of any Borrower;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (f) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
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SECTION 8.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own securities of the
Company or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and may be removed
at any time with or without cause by the Majority Lenders. The Company may at
any time, by notice to the Agent, propose a successor Agent (which shall meet
the criteria described below) specified in such notice and request that the
Lenders be notified thereof by the Agent with a view to their removal of the
Agent and their appointment of such successor Agent; the Agent agrees to forward
any such notice to the Lenders promptly upon its receipt by the Agent. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the
57
Majority Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be performed by the Sub-Agent, and
each of the Borrowers and the Lenders agrees that the Sub-Agent shall be
entitled to exercise each of the rights and shall be entitled to each of the
benefits of the Agent under this Agreement as relate to the performance of its
obligations hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Revolving Credit Notes, nor consent to any departure by
any Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (b) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder (other than as permitted
by Section 2.16 to the extent any Lender consents thereunder), (d) release the
Company from any of its obligations under Article VII, (e) require the duration
of an Interest Period to be nine months if such period is not available to all
Lenders or (f) amend this Section 9.01; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed (return receipt requested), telecopied,
telegraphed, telexed or delivered, if to the Company or to any Designated
Subsidiary, at the Company's address at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000-0000, Attention: Assistant Treasurer; if to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at Two
00
Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications
Department, with a copy to 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxx; or, as to any Borrower or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the Agent;
provided that materials as may be agreed between the Borrowers and the Agent may
be delivered to the Agent in accordance with clause (b) below. All such notices
and communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent, such
materials required to be delivered pursuant to Section 5.01(h)(i), (ii),
(iii) and (iv) as may be agreed between the Borrowers and the Agent may be
delivered to the Agent in an electronic medium in a format acceptable to
the Agent and the Lenders by e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The
Borrowers agree that the Agent may make such materials (the
"Communications") available to the Lenders by posting such notices on
Intralinks or a substantially similar electronic system (the "Platform").
The Borrowers acknowledge that (i) the distribution of material through an
electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent
nor any of its Affiliates warrants the accuracy, adequacy or completeness
of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or
other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of
the Communications to such Lender by email or telecopier. Each Lender
agrees (i) to notify the Agent in writing of such Lender's e-mail
address(es) to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to
ensure that the Agent has on record an effective e-mail address for such
Lender) and (ii) that any Notice may be sent to such e-mail address(es).
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall
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operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (i)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (ii) the reasonable fees and expenses of counsel for the
Agent with respect thereto. The Company further agrees to pay on demand all
costs and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) Each Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent any such claim, damage, loss,
liability or expense has resulted from such Indemnified Party's gross negligence
or willful misconduct.
The Company also agrees not to assert any claim against any Indemnified Party on
any theory of liability for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance or LIBO Rate Advance is made by the Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.03(d), 2.05(b),
2.09(a) or (b), 2.11 or 2.16, acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense
60
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10, 2.13 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes and the
termination in whole of any Commitment hereunder.
SECTION 9.05. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, the Agent and each Lender and their respective successors and assigns,
except that no Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 9.06. Assignments and Participations. (a) Each Lender may at
any time, with notice to the Company prior to making any proposal to any
potential assignee and with the consent of the Company, which consent shall not
be unreasonably withheld (and shall at any time, if requested to do so by the
Company pursuant to Section 2.05(b), 2.10 or 2.13) assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) the Company's consent shall not be required (A) in
the case of an assignment to an Affiliate of such Lender, provided that notice
thereof shall have been given to the Company and the Agent or (B) in the case of
an assignment of the type described in subsection (g) below; (ii) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than any right to make Competitive
Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes);
(iii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof; (iv) each such assignment shall be to an Eligible Assignee, (v)
each such assignment made as a result of a demand by the Company pursuant to
this Section 9.06(a) shall be arranged by the Company after consultation with,
and subject to the approval of, the Agent, and shall be either an assignment of
all of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover all
of the rights and obligations of the assigning Lender under this Agreement, (vi)
no Lender shall be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 9.06(a) unless and until such Lender
shall have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender
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under this Agreement and all of the obligations of the Borrower to such Lender
shall have been satisfied; and (vii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500 and, if the assigning Lender is not retaining a
Commitment hereunder, any Revolving Credit Note subject to such assignment. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto, provided, however, that such assigning
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05, shall survive such assignment as to matters occurring prior to the
effective date of such assignment).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other instrument or document furnished pursuant hereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by such Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto,
62
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company and
to each other Borrower.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Company, each other Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Company, any other Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Company or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Company and the other Borrowers hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Company, any other
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation and (vi) within 30 days of the
effective date of such participation, such Lender shall provide notice of such
participation to the Company.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.06, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Company or any Borrower furnished to such Lender by
or on behalf of such Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to such
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign or create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
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SECTION 9.07. Designated Subsidiaries. (a) Designation. The Company
may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement and the Notes
of any Designated Subsidiary then, so long as at the time no Notice of Revolving
Credit Borrowing or Notice of Competitive Bid Borrowing in respect of such
Designated Subsidiary is outstanding, such Subsidiary's status as a "Designated
Subsidiary" shall terminate upon notice to such effect from the Agent to the
Lenders (which notice the Agent shall give promptly upon its receipt of a
request therefor from the Company). Thereafter, the Lenders shall be under no
further obligation to make any Advance hereunder to such Designated Subsidiary.
SECTION 9.08. Confidentiality. Each of the Lenders and the Agent
hereby agrees that it will use reasonable efforts (e.g., procedures
substantially comparable to those applied by such Lender or the Agent in respect
of non-public information as to the business of such Lender or the Agent) to
keep confidential any financial reports and other information from time to time
supplied to it by the Company hereunder to the extent that such information is
not and does not become publicly available and which the Company indicates at
the time is to be treated confidentially, provided, however, that nothing herein
shall affect the disclosure of any such information (i) by the Agent to any
Lender, (ii) to the extent required by law (including statute, rule, regulation
or judicial process), (iii) to counsel for any Lender or the Agent or to their
respective independent public accountants, (iv) to bank examiners and auditors
and appropriate government examining authorities, (v) to the Agent or any other
Lender, (vi) in connection with any litigation to which any Lender or the Agent
is a party, (vii) to actual or prospective assignees and participants as
contemplated by Section 9.06(f) or (viii) to any Affiliate of the Agent or any
Lender or to such Affiliate's officers, directors, employees, agents and
advisors, provided that, prior to any such disclosure, such Affiliate or such
Affiliate's officers, directors, employees, agents or advisors, as the case may
be, shall agree to preserve the confidentiality of any confidential information
relating to the Company received by it; a determination by a Lender or the Agent
as to the application of the circumstances described in the foregoing clauses
(i)-(viii) being conclusive if made in good faith; and each of the Lenders and
the Agent agrees that it will follow procedures which are intended to put any
transferee of such confidential information on notice that such information is
confidential. Notwithstanding anything herein to the contrary, each Borrower,
the Agent and each Lender (and each employee, representative or other agent of
each of the foregoing parties) may disclose to any and all Persons, without
limitation of any kind, the U.S. tax treatment and tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to any of the foregoing
parties relating to such U.S. tax treatment and tax structure.
64
SECTION 9.09. Mitigation of Yield Protection. Each Lender hereby
agrees that, commencing as promptly as practicable after it becomes aware of the
occurrence of any event giving rise to the operation of Section 2.10(a), 2.11 or
2.13 with respect to such Lender, such Lender will give notice thereof through
the Agent to the respective Borrower. A Borrower may at any time, by notice
through the Agent to any Lender, request that such Lender change its Applicable
Lending Office as to any Advance or Type of Advance or that it specify a new
Applicable Lending Office with respect to its Commitment and any Advance held by
it or that it rebook any such Advance with a view to avoiding or mitigating the
consequences of an occurrence such as described in the preceding sentence, and
such Lender will use reasonable efforts to comply with such request unless, in
the opinion of such Lender, such change or specification or rebooking is
inadvisable or might have an adverse effect, economic or otherwise, upon it,
including its reputation. In addition, each Lender agrees that, except for
changes or specifications or rebookings required by law or effected pursuant to
the preceding sentence, if the result of any change or change of specification
of Applicable Lending Office or rebooking would, but for this sentence, be to
impose additional costs or requirements upon the respective Borrower pursuant to
Section 2.10(a), Section 2.11 or Section 2.13 (which would not be imposed absent
such change or change of specification or rebooking) by reason of legal or
regulatory requirements in effect at the time thereof and of which such Lender
is aware at such time, then such costs or requirements shall not be imposed upon
such Borrower but shall be borne by such Lender. All expenses incurred by any
Bank in changing an Applicable Lending Office or specifying another Applicable
Lending Office of such Lender or rebooking any Advance in response to a request
from a Borrower shall be paid by such Borrower. Nothing in this Section 9.09
(including, without limitation, any failure by a Lender to give any notice
contemplated in the first sentence hereof) shall limit, reduce or postpone any
obligations of the respective Borrower under Section 2.10(a), Section 2.11 or
Section 2.13, including any obligations payable in respect of any period prior
to the date of any change or specification of a new Applicable Lending Office or
any rebooking of any Advance.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the
65
any such New York State court or in such federal court may be made upon CT
Corporation System at its offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Process Agent") and each Designated Subsidiary hereby irrevocably appoints
the Process Agent its authorized agent to accept such service of process, and
agrees that the failure of the Process Agent to give any notice of any such
service shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. Each Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its address
specified pursuant to Section 9.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to serve legal process in any other manner permitted by law
or to bring any action or proceeding relating to this Agreement or the Notes in
the courts of any jurisdiction. To the extent that each Designated Subsidiary
has or hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, each Designated Subsidiary hereby irrevocably waives
such immunity in respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 9.13. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Borrowers in the same position, so far as
possible, that they would have been in if no change in such Foreign Currency had
occurred.
SECTION 9.14. Final Agreement. This written agreement represents the
full and final agreement between the parties with respect to the matters
addressed herein and supercedes all prior communications, written or oral, with
respect thereto. There are no unwritten agreements between the parties.
SECTION 9.15. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder or under the Notes
in any currency (the "Original Currency") into another currency (the "Other
Currency"), the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at 9:00 A.M. (New York City time) on the first
Business Day preceding that on which final judgment is given.
66
(b) The obligation of each Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Agent hereunder or under the
Revolving Credit Note or Revolving Credit Notes held by such Lender shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the Agent
(as the case may be) of any sum adjudged to be so due in such Other Currency,
such Lender or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such Other Currency; if the amount of
Dollars so purchased is less than the sum originally due to such Lender or the
Agent (as the case may be) in the Original Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the amount of
Dollars so purchased exceeds the sum originally due to any Lender or the Agent
(as the case may be) in the Original Currency, such Lender or the Agent (as the
case may be) agrees to remit to such Borrower such excess.
67
SECTION 9.16. Waiver of Jury Trial. Each Borrower, the Agent and each
Lender hereby irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
HONEYWELL INTERNATIONAL INC.
By: /s/
------------------------------------
Title: Vice President and Treasurer
CITIBANK, N.A., as Agent
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title: Vice President
REVOLVING CREDIT COMMITMENT ARRANGER AND ADMINISTRATIVE AGENT
$97,826,086.96 CITIBANK, N.A.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title: Director
ARRANGER AND SYNDICATION AGENT
$97,826,086.96 JPMORGAN CHASE BANK
By: /s/
------------------------------------
Title: Vice President
DOCUMENTATION AGENTS
$82,608,695.65 BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Title: Managing Director
$82,608,695.65 BARCLAYS BANK PLC
By: /s/ Xxxxxxx Berneggeh
------------------------------------
Title: Director
68
$82,608,695.65 DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Title: Director
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Title: Vice President
$82,608,695.65 UBS LOAN FINANCE LLC
By: /s/
------------------------------------
Title: Director
By: /s/
------------------------------------
Title: Associate Director
SENIOR MANAGING AGENTS
$56,521,739.13 ABN AMRO BANK N.V.
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Title: Director
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Title: Vice President
$56,521,739.13 BANK ONE, NA
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Director
$56,521,739.13 BNP PARIBAS
By: /s/ Michel de Vibraye
------------------------------------
Title: Head of CFI North America
By: /s/ Xxxxxxx Xxxx
------------------------------------
Title: Director
$56,521,739.13 BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/
------------------------------------
Title: Vice President
69
MANAGING AGENTS
$39,130,434.78 HSBC BANK USA
By: /s/ Johan Sorennson
------------------------------------
Title: First Vice President
$39,130,434.78 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
LENDERS
$21,739,130.43 ROYAL BANK OF CANADA
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: Authorized Signatory
$21,739,130.43 SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxx X. X. Xxxxxx
------------------------------------
Title: Joint General Manager
$21,739,130.43 UNICREDITO ITALIANO
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------------
Title: First Vice President &
Deputy Manager
$13,043,478.26 BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/
------------------------------------
Title: Vice President
By: /s/
------------------------------------
Title: Vice President
$13,043,478.26 DANSKE BANK A/S, CAYMAN BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Title: Vice President
70
$13,043,478.26 BANCA INTESA S.P.A.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title: Vice President
By: /s/ Xxxxxxx
------------------------------------
Title: First Vice President
$13,043,478.26 MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxx
------------------------------------
Title: Vice President and Team Leader
$13,043,478.26 SOCIETE GENERALE
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Title: Director
$13,043,478.26 WACHOVIA BANK, N.A.
By: /s/
------------------------------------
Title: Director
$13,043,478.26 XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Title: Vice President
$13,043,478.26 WESTPAC BANKING CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: Vice President
$1,000,000,000 TOTAL OF COMMITMENTS
71
SCHEDULE I
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
-------------------------------------- ----------------------------- -----------------------------
ABN AMRO Bank N.V. 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Credit Administration Attn: Credit Administration
Phone: (000) 000-00000 Phone: (000) 000-00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Banco Bilbao Vizcaya Argentarie S.A. 1345 Avenue of the Americas 1345 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank of America, N.A. 000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Bank of Tokyo-Mitsubishi 1251 Avenue of the Americas 1251 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank One, NA One Bank Xxx Xxxxx Xxx Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx Attn: Xxxxxxx Xxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Barclays Bank PLC 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx Attn: Xxxxxx Xxxxx
Phone: (000) 000 0000 Phone: (000) 000 0000
F: (000) 000 0000 F: (000) 000 0000
BNP Paribas 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx/Xxxxx Attn: Xxxxxx Xxxxxx/Xxxxx
Xxxxxxx-Xxxxxx Xxxxxxx-Xxxxxx
Phone: (000) 000-0000/9616 Phone: (000) 000-0000/9616
Fax: (000) 000-0000 Fax: (000) 000-0000
Citibank, N.A. 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxxxx Xxxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Danske Bank A/S, Xxxxxx Xxxxxx 000 Xxxx xxxxxx, 00xx Xxxxx 000 Xxxx xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Deutsche Bank AG New York Branch 00 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
HSBC Bank USA Xxx XXXX Xxxxxx Xxx XXXX Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 or 5683 Fax: (000) 000-0000 or 0000
Xxxxx Xxxxxx S.p.A. 0 X Xxxxxxx Xxxxxx 0 X Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
JPMorgan Chase Bank One Chase Manhattan Plaza Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Mizuho Corporate Bank, Ltd. 1251 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Northern Trust Company 00 X. XxXxxxx Xxxxxx 00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Honda Attn: Xxxxx Honda
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xxxxx Xxxx xx Xxxxxx Xxx Xxxxxxx Xxxxx, 0xx Xxxxx Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Karim Amr Attn: Karim Amr
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
with a copy to: with a copy to:
Attn: X. Xxxxx Attn: X. Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Societe Generale 1221 Avenue of the America 0000 Xxxxxx xx xxx Xxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx-Xxxxxxxxx Attn: Xxxxx Xxxxxxx-Xxxxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
2
Sumitomo Mitsui Banking Corporation 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx XxXxxxx Attn: Xxxxxx XxXxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
UBS Loan Finance LLC 000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
0xx Xxxxx Xxxxx 0xx Xxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxx Attn: Xxxxxxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Unicredito Italiano 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxxx Attn: Xxxxxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Wachovia Bank, N.A. 000 X. Xxxxxxx Xxxxxx 000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xxxxx Fargo Bank, National Association 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx Xxxx, XX 00000-0000 New York City, NY 10022-3222
Attn: Xxxxx X. Xxxxxxxx\ Attn: Xxxxx X. Xxxxxxxx\
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Westpac Banking Corporation GMO Nightshift Operations GMO Nightshift Operations
000 Xxxxxxxxx Xx. 0xx Xxxxx 000 Xxxxxxxxx Xx. 0xx Xxxxx
Xxxxxx, XXX 0000 Xxxxxx, XXX 0000
Xxxxxxxxx Xxxxxxxxx
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Phone: 000 000 0000-0000 Phone: 000 000 0000-0000
Fax: 000 00 000 000 0000 Fax: 000 00 000 000 0000
3
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
While not giving an opinion as to whether any item is "reasonably
likely to have a Material Adverse Effect," we hereby disclose the litigation
matters as stated in our Form 10-Q for the quarter ended September 30, 2003,
under the heading "Legal Proceedings," as shown below. These matters are
modified and updated to the extent of the Form 8-K filed by Honeywell on
November 11, 2003, disclosing that the letter of intent regarding a transaction
in which Federal-Mogul Corp. would acquire Honeywell's automotive Bendix
friction materials business, and Honeywell would receive a permanent channeling
injunction shielding it from all current and future Bendix-related personal
injury asbestos liabilities, expired on November 15, 2003, but that the parties
remain engaged in active negotiations regarding a possible transaction.
SHAREOWNER LITIGATION - Honeywell and seven of its current and former
officers were named as defendants in several purported class action lawsuits
filed in the United States District Court for the District of New Jersey (the
"Securities Law Complaints"). The Securities Law Complaints principally allege
that the defendants violated federal securities laws by purportedly making false
and misleading statements and by failing to disclose material information
concerning Honeywell's financial performance, thereby allegedly causing the
value of Honeywell's stock to be artificially inflated. On January 15, 2002, the
District Court dismissed the consolidated complaint against four of Honeywell's
current and former officers. The Court has granted plaintiffs' motion for class
certification defining the class as all purchasers of Honeywell stock between
December 20, 1999 and June 19, 2000.
The parties participated in a two-day settlement mediation in April 2003 in
an attempt to resolve the cases without resort to a trial. The mediation proved
unsuccessful in resolving the cases. Discovery in the cases, which had been
stayed pending completion of the mediation, has resumed. A further mediation
session is planned for the fourth quarter of 2003.
We continue to believe that the allegations in the Securities Law
Complaints are without merit. Although it is not possible at this time to
predict the outcome of these cases, we expect to prevail. However, an adverse
outcome could be material to our consolidated financial position or results of
operations. As a result of the uncertainty regarding the outcome of this matter
no provision has been made in our financial statements with respect to this
contingent liability.
ERISA CLASS ACTION LAWSUIT - In April 2003, Honeywell and several of its
current and former officers were named as defendants in a purported class action
lawsuit filed in the United States District Court for the District of New
Jersey. The complaint principally alleges that the defendants breached their
fiduciary duties to participants in the Honeywell Savings and Ownership Plan
(the "Savings Plan") by purportedly making false and misleading statements,
failing to disclose material information concerning Honeywell's financial
performance, and failing to diversify the Savings Plan's assets and monitor the
prudence of Honeywell stock as a Savings Plan investment. In July 2003, an
amended complaint making similar allegations and naming several current and
former officers and directors as defendants was filed in the same district. In
September 2003, Honeywell filed a motion to dismiss the amended complaint.
Although it is not possible at this time to predict the outcome of this
litigation, we believe that the allegations in these complaints are without
merit and we expect to prevail. An adverse litigation outcome could, however, be
material to our consolidated financial position or results of operations. As a
result of the uncertainty regarding the outcome of this matter no provision has
been made in our financial statements with respect to this contingent liability.
ENVIRONMENTAL MATTERS - We are subject to various federal, state and local
government requirements relating to the protection of employee health and safety
and the environment. We believe that, as a general matter, our policies,
practices and procedures are properly designed to prevent unreasonable risk of
environmental damage and personal injury to our employees and employees of our
customers and that our handling, manufacture, use and disposal of hazardous or
toxic substances are in accord with environmental laws and regulations. However,
mainly because of past operations and operations of predecessor companies, we,
like other companies engaged in similar businesses, have incurred remedial
response and voluntary cleanup costs for site contamination and are a party to
lawsuits and claims associated with environmental matters, including past
production of products containing toxic substances. Additional lawsuits, claims
and costs involving environmental matters are likely to continue to arise in the
future.
With respect to environmental matters involving site contamination, we
continually conduct studies, individually at our owned sites, and jointly as a
member of industry groups at non-owned sites, to determine the feasibility of
various remedial techniques to address environmental matters. It is our policy
to record appropriate liabilities for environmental matters when environmental
assessments are made or remedial efforts or damage claim payments are probable
and the costs can be reasonably estimated. With respect to site contamination,
the timing of these accruals is generally no later than the completion of
feasibility studies. We expect to fund expenditures for these matters from
operating cash flow. The timing of cash expenditures depends on a number of
factors, including the timing of litigation and settlements of personal injury
and property damage claims, regulatory approval of cleanup projects, remedial
techniques to be utilized and agreements with other parties.
Although we do not currently possess sufficient information to reasonably
estimate the amounts of liabilities to be recorded upon future completion of
studies, litigation or settlements, and neither the timing nor the amount of the
ultimate costs associated with environmental matters can be determined, they
could be material to our consolidated results of operations. However,
considering our past experience and existing reserves, we do not expect that
these matters will have a material adverse effect on our consolidated financial
position.
In the matter entitled Interfaith Community Organization, et al. v.
Honeywell International Inc., et al., the United States District Court for the
District of New Jersey held in May 2003 that a predecessor Honeywell site
located in Jersey City, New Jersey constituted an imminent and substantial
endangerment and ordered Honeywell to conduct the excavation and transport for
offsite disposal of approximately one million tons of chromium residue present
at the site. Honeywell strongly disagrees with the court's determinations and
has appealed the court's decision to the Third Circuit Court of Appeals. The
Third Circuit Court of Appeals has referred the case for mediation. In October
2003, the District Court denied Honeywell's motion
2
for a stay of certain aspects of its May 2003 order, and we are considering
whether to appeal such ruling. The site at issue is one of twenty-one sites
located in Jersey City, New Jersey which are the subject of an Administrative
Consent Order (ACO) entered into with the New Jersey Department of Environmental
Protection (NJDEP) in 1993. Under the ACO, Honeywell agreed to study and
remediate these sites in accordance with NJDEP's directions, provided that the
total costs of such studies and remediation do not exceed $60 million. Honeywell
has cooperated with the NJDEP under the ACO and believes that decisions
regarding site cleanups should be made by NJDEP under the ACO. We are confident
that proceeding under the ACO will ensure a safe remediation and allow the
property to be placed back into productive use much faster and at a cost
significantly less than the remedies required by the court's order. We have not
completed development of a remedial action plan for the excavation and offsite
disposal directed under the court's order and therefore are unable to estimate
the cost of such actions. At trial, plaintiff's expert testified that the
excavation and offsite disposal cost might be $400 million. However, there are
significant variables in the implementation of the court's order and depending
on the method of implementation chosen, the estimate could increase or decrease.
Provisions have been previously made in our financial statements as to remedial
costs consistent with the ACO and during the three months ended June 30, 2003 we
provided for additional costs which are likely to be incurred during the
pendency of our appeal, which provisions do not assume excavation and offsite
removal of chromium from the site. There are alternative outcomes and remedies
beyond the scope of the ACO that could result from the remanding, reversal or
replacement of the Court's decision and order. At this time, we can neither
identify a probable alternative outcome nor reasonably estimate the cost of an
alternative remedy. Although we expect the court's decision and order to be
remanded, reversed or replaced, should the remedies prescribed in the court's
decision and order ultimately be upheld, such outcome could have a material
adverse impact on our consolidated results of operations or operating cash flows
in the periods recognized or paid.
ASBESTOS MATTERS - Like many other industrial companies, Honeywell is a
defendant in personal injury actions related to asbestos. We did not mine or
produce asbestos, nor did we make or sell insulation products or other
construction materials that have been identified as the primary cause of
asbestos related disease in the vast majority of claimants. Rather, we made
several products that contained small amounts of asbestos.
Honeywell's Bendix Friction Materials business manufactured automotive
brake pads that included asbestos in an encapsulated form. There is a group of
potential claimants consisting largely of professional brake mechanics. From
1981 through September 30, 2003, we have resolved about 62,500 Bendix claims at
an average indemnity cost per claim of approximately two thousand nine hundred
dollars. Through the second quarter of 2002, Honeywell had no out-of-pocket
costs for these cases since its insurance deductible was satisfied many years
ago. Beginning with claim payments made in the third quarter of 2002, Honeywell
began advancing indemnity and defense claim costs that amounted to approximately
$75 million in payments in the nine months ended September 30, 2003. A
substantial portion of this amount is expected to be reimbursed by insurance.
There are currently approximately 71,000 claims pending.
On January 30, 2003, Honeywell and Federal-Mogul Corp. (Federal-Mogul)
entered into a letter of intent (LOI) pursuant to which Federal-Mogul would
acquire Honeywell's automotive
3
Bendix Friction Materials (Bendix) business, with the exception of certain U.S.
based assets. In exchange, Honeywell would receive a permanent channeling
injunction shielding it from all current and future personal injury asbestos
liabilities related to Honeywell's Bendix business.
Federal-Mogul, its U.S. subsidiaries and certain of its United Kingdom
subsidiaries voluntarily filed for financial restructuring under Chapter 11 of
the U.S. Bankruptcy Code in October 2001. Federal-Mogul will seek to establish
one or more trusts under Section 524(g) of the U.S. Bankruptcy Code as part of
its reorganization plan, including a trust for the benefit of Bendix asbestos
claimants. The reorganization plan to be submitted to the Bankruptcy Court for
approval will contemplate that the U.S. Bankruptcy Court in Delaware would issue
an injunction in favor of Honeywell that would channel to the Bendix 524(g)
trust all present and future asbestos claims relating to Honeywell's Bendix
business. The 524(g) trust created for the benefit of the Bendix claimants would
receive the rights to proceeds from Honeywell's Bendix related insurance
policies and would make these proceeds available to the Bendix claimants.
Honeywell would have no obligation to contribute any additional amounts toward
the settlement or resolution of Bendix related asbestos claims.
In the fourth quarter of 2002, we recorded a charge of $167 million
consisting of a $131 million reserve for the sale of Bendix to Federal-Mogul,
our estimate of asbestos related liability net of insurance recoveries and costs
to complete the anticipated transaction with Federal-Mogul. Completion of the
transaction contemplated by the LOI is subject to the negotiation of definitive
agreements, the confirmation of Federal-Mogul's plan of reorganization by the
Bankruptcy Court, the issuance of a final, non-appealable 524(g) channeling
injunction permanently enjoining any Bendix related asbestos claims against
Honeywell, and the receipt of all required governmental approvals. We do not
believe that completion of such transaction as contemplated under the LOI would
have a material adverse impact on our consolidated results of operations or
financial position.
During the third quarter of 2003, DaimlerChrysler AG, Ford Motor Co. and
General Motors Corp. filed a lawsuit in the U.S. Bankruptcy Court, against
Honeywell and Federal-Mogul seeking a declaration that Honeywell's Bendix unit
cannot be sold to Federal-Mogul and receive protection from asbestos claims
under Section 524(g) of the U.S. Bankruptcy Code. Honeywell believes the lawsuit
is without merit and intends to vigorously defend against the allegations in the
complaint.
There can be no assurance, however, that the transaction contemplated by
the LOI will be completed. Honeywell presently has approximately $1.9 billion of
insurance coverage remaining with respect to Bendix related asbestos claims.
Although it is impossible to predict the outcome of pending or future claims, in
light of our potential exposure, our prior experience in resolving these claims,
and our insurance coverage, we do not believe that the Bendix related asbestos
claims will have a material adverse effect on our consolidated financial
position.
Another source of claims is refractory products (high temperature bricks
and cement) sold largely to the steel industry in the East and Midwest by North
American Refractories Company (NARCO), a business we owned from 1979 to 1986.
Less than 2 percent of NARCO's products contained asbestos.
4
When we sold the NARCO business in 1986, we agreed to indemnify NARCO with
respect to personal injury claims for products that had been discontinued prior
to the sale (as defined in the sale agreement). NARCO retained all liability for
all other claims. NARCO had resolved approximately 176,000 claims through
January 4, 2002, the date NARCO filed for reorganization under Chapter 11 of the
U.S. Bankruptcy Code, at an average cost per claim of two thousand two hundred
dollars. Of those claims, 43 percent were dismissed on the ground that there was
insufficient evidence that NARCO was responsible for the claimant's asbestos
exposure. As of the date of NARCO's bankruptcy filing, there were approximately
116,000 remaining claims pending against NARCO, including approximately 7
percent in which Honeywell was also named as a defendant. Since 1983, Honeywell
and our insurers have contributed to the defense and settlement costs associated
with NARCO claims. We have approximately $1.3 billion (excluding insurance
recoveries in October 2003 - see discussion below) of insurance remaining that
can be specifically allocated to NARCO related liability.
As a result of the NARCO bankruptcy filing, all of the claims pending
against NARCO are automatically stayed pending the reorganization of NARCO
except one claim which is not material as to which the stay was lifted in August
2003. Because the claims pending against Honeywell necessarily will impact the
liabilities of NARCO, because the insurance policies held by Honeywell are
essential to a successful NARCO reorganization, and because Honeywell has
offered to commit the value of those policies to the reorganization, the
bankruptcy court has temporarily enjoined any claims against Honeywell, current
or future, related to NARCO. Although the stay has been extended nineteen times
since January 4, 2002, there is no assurance that such stay will remain in
effect. In connection with NARCO's bankruptcy filing, we paid NARCO's parent
company $40 million and agreed to provide NARCO with up to $20 million in
financing. We also agreed to pay $20 million to NARCO's parent company upon the
filing of a plan of reorganization for NARCO acceptable to Honeywell, and to pay
NARCO's parent company $40 million, and to forgive any outstanding NARCO
indebtedness, upon the confirmation and consummation of such a plan.
As a result of ongoing negotiations with counsel representing NARCO related
asbestos claimants regarding settlement of all pending and potential NARCO
related asbestos claims against Honeywell, we have reached definitive agreements
or agreements in principle with approximately 256,000 claimants, which
represents in excess of 90 percent of the approximately 275,000 current
claimants who are now expected to file a claim as part of the NARCO
reorganization process. We are also in discussions with the NARCO Committee of
Asbestos Creditors on Trust Distribution Procedures for NARCO. We believe that,
as part of the NARCO plan of reorganization, a trust will be established
pursuant to these Trust Distribution Procedures for the benefit of all asbestos
claimants, current and future. If the trust is put in place and approved by the
court as fair and equitable, Honeywell as well as NARCO will be entitled to a
permanent channeling injunction barring all present and future individual
actions in state or federal courts and requiring all asbestos related claims
based on exposure to NARCO products to be made against the federally-supervised
trust. As part of its ongoing settlement negotiations, Honeywell has reached
agreement in principle with the representative for future NARCO claimants to cap
its annual contributions to the trust with respect to future claims at a level
that would not have a material impact on Honeywell's operating cash flows. Given
the substantial
5
progress of negotiations between Honeywell and NARCO related asbestos claimants
and between Honeywell and the Committee of Asbestos Creditors during the fourth
quarter of 2002, Honeywell developed an estimated liability for settlement of
pending and future asbestos claims.
During the fourth quarter of 2002, Honeywell recorded a charge of $1.4
billion for NARCO related asbestos litigation charges, net of insurance
recoveries. This charge consists of the estimated liability to settle current
asbestos related claims, the estimated liability related to future asbestos
related claims through 2018 and obligations to NARCO's parent, net of insurance
recoveries of $1.8 billion.
The estimated liability for current claims is based on terms and
conditions, including evidentiary requirements, in definitive agreements or
agreements in principle with in excess of 90 percent of current claimants. Once
finalized, settlement payments with respect to current claims are expected to be
made over approximately a four-year period.
The liability for future claims estimates the probable value of future
asbestos related bodily injury claims asserted against NARCO over a 15 year
period and obligations to NARCO's parent as discussed above. In light of the
uncertainties inherent in making long-term projections we do not believe that we
have a reasonable basis for estimating asbestos claims beyond 2018 under
Statement of Financial Accounting Standard No. 5 "Accounting for Contingencies."
Honeywell retained the expert services of Xxxxxxxx, Xxxxxxxxxx and Xxxxxxxxx,
Inc. (HR&A) to project the probable number and value, including trust claim
handling costs, of asbestos related future liabilities. The methodology used to
estimate the liability for future claims has been commonly accepted by numerous
courts and is the same methodology that is utilized by an expert who is
routinely retained by the asbestos claimants committee in asbestos related
bankruptcies. The valuation methodology includes an analysis of the population
likely to have been exposed to asbestos containing products, epidemiological
studies to estimate the number of people likely to develop asbestos related
diseases, NARCO claims filing history and the pending inventory of NARCO
asbestos related claims.
Honeywell has substantial insurance that reimburses it for portions of the
costs incurred to settle NARCO related claims and court judgments as well as
defense costs. This coverage is provided by a large number of insurance policies
written by dozens of insurance companies in both the domestic insurance market
and the London excess market. At September 30, 2003, a significant portion of
this coverage is with London-based insurance companies under a coverage-in-place
agreement. Coverage-in-place agreements are settlement agreements between
policyholders and the insurers specifying the terms and conditions under which
coverage will be applied as claims are presented for payment. These agreements
govern such things as what events will be deemed to trigger coverage, how
liability for a claim will be allocated among insurers and what procedures the
policyholder must follow in order to obligate the insurer to pay claims. We
conducted an analysis to determine the amount of insurance that we estimate is
probable that we will recover in relation to payment of current and projected
future claims. While the substantial majority of our insurance carriers are
solvent, some of our individual carriers are insolvent, which has been
considered in our analysis of probable recoveries. Some of our insurance
carriers have challenged our right to enter into settlement agreements resolving
all NARCO related asbestos claims against Honeywell. However, we believe there
is no factual or
6
legal basis for such challenges and we believe that it is probable that we will
prevail in the resolution of, or in any litigation that is brought regarding
these disputes and, as of September 30, 2003, we have recognized approximately
$550 million in probable insurance recoveries from these carriers. We made
judgments concerning insurance coverage that we believe are reasonable and
consistent with our historical dealings with our insurers, our knowledge of any
pertinent solvency issues surrounding insurers and various judicial
determinations relevant to our insurance programs. Based on our analysis, we
recorded insurance recoveries that are deemed probable through 2018 of $1.8
billion. A portion of this insurance has been received, primarily from Equitas,
as discussed below.
During the nine months ended September 30, 2003, we made asbestos related
payments of $467 million, including legal fees. During the nine months ended
September 30, 2003, we received $477 million in insurance reimbursements
including $472 million in cash received from Equitas related to a comprehensive
policy buy-back settlement of all insurance claims by Honeywell against Equitas.
The settlement resolves all claims by Honeywell against Equitas arising from
asbestos claims related to NARCO and Bendix.
Projecting future events is subject to many uncertainties that could cause
the NARCO related asbestos liabilities to be higher or lower than those
projected and recorded. There is no assurance that ongoing settlement
negotiations will be successfully completed, that a plan of reorganization will
be proposed or confirmed, that insurance recoveries will be timely or whether
there will be any NARCO related asbestos claims beyond 2018. Given the inherent
uncertainty in predicting future events, we plan to review our estimates
periodically, and update them based on our experience and other relevant
factors. Similarly we will reevaluate our projections concerning our probable
insurance recoveries in light of any changes to the projected liability or other
developments that may impact insurance recoveries.
In October 2003, we received approximately $150 million in cash from
various insurance companies related to our NARCO asbestos claims.
We are monitoring proposals for federal asbestos legislation pending in the
United States Congress. Due to the uncertainty surrounding the proposed
legislation, it is not possible at this point in time to determine what impact
such legislation would have on the NARCO bankruptcy strategy, the proposed
transaction with Federal-Mogul, or our asbestos liabilities and related
insurance recoveries.
7
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the aggregate principal amount of the Revolving
Credit Advances made by the Lender to the Borrower pursuant to the 364-Day
Credit Agreement dated as of November 26, 2003 among Honeywell International
Inc., the Lender and certain other lenders parties thereto, and Citibank, N.A.,
as Agent for the Lender and such other lenders (as amended or modified from time
to time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit
Advance (i) in Dollars are payable in lawful money of the United States of
America to Citibank, N.A., as Agent, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, in same day funds and (ii) in any Major Currency are payable in
such currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned or
the Equivalent thereof in one or more Major Currencies, the indebtedness of the
Borrower resulting from each such Revolving Credit Advance being evidenced by
this Promissory Note, (ii) contains provisions for determining the Dollar
Equivalent of Revolving Credit Advances denominated in Major Currencies and
(iii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This promissory note shall be governed by, and construed in accordance
with the laws of the State of New York.
[NAME OF BORROWER]
By
--------------------------------------
Name:
Title:
2
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Amount of Unpaid
Type of Advance in Principal Paid Principal Notation
Date Advance Relevant Currency Interest Rate or Prepaid Balance Made By
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3
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the 364-Day Credit Agreement dated as
of November 26, 2003 among Honeywell International Inc., the Lender and certain
other lenders parties thereto, and Citibank, N.A., as Agent for the Lender and
such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)), on
_______________, the principal amount of [U.S.$_______________] [for a
Competitive Bid Advance in a Foreign Currency, list currency and amount of such
Advance].
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: [____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed)].
Interest Payment Date or Dates: ______________
Both principal and interest are payable in lawful money of
___________________ to Citibank, N.A., as Agent, for the account of the Lender
at the office of _________________________, at _________________________ in same
day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
--------------------------------------
Name:
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day Credit
Agreement, dated as of November 26, 2003 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto, and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing
is [$_______________] [for a Revolving Credit Borrowing in a Major
Currency, list currency and amount of Revolving Credit Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____ month[s].]
The undersigned hereby certifies that the conditions precedent to this
Revolving Credit Borrowing set forth in Section 3.04 of the Credit Agreement
have been satisfied and the applicable statements contained therein are true on
the date hereof, and will be true on the date of the Proposed Revolving Credit
Borrowing.
Very truly yours,
[NAME OF BORROWER]
By
--------------------------------------
Name:
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day Credit
Agreement, dated as of November 26, 2003 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Honeywell International Inc., certain Lenders parties
thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________
(B) Aggregate Amount of Competitive Bid Borrowing ________________
(C) [Maturity Date] [Interest Period] ________________
(D) Interest Rate Basis ________________
(E) Day Count Convention ________________
(F) Interest Payment Date(s) ________________
(G) [Currency] ________________
(H) Borrower's Account Location ________________
(I) ___________________ ________________
The undersigned hereby certifies that the conditions precedent to this
Competitive Bid Borrowing set forth in Section 3.05 of the Credit Agreement have
been satisfied and the applicable statements contained therein are true on the
date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
--------------------------------------
Name:
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _____________
Reference is made to the 364-Day Credit Agreement dated as of November
26, 2003 (as amended or modified from time to time, the "Credit Agreement")
among Honeywell International Inc., a Delaware corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement), and Citibank, N.A., as agent (the
"Agent") for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meaning.
____________ (the "Assignor") and ____________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances in each relevant currency owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by such Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto; [and (iv)
attaches the Revolving Credit Note held by the Assignor and requests that the
Agent obtain from the Borrower a new Revolving Credit Note payable to the order
of the Assignee with respect to the aggregate principal amount of the Revolving
Credit Advances assumed by such Assignee pursuant hereto, substantially in the
form of Exhibit A-1 to the Credit Agreement].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement, provided, however,
that the Assignor's rights under Sections 2.10, 2.13 and 9.04 of the Credit
Agreement, and its obligations under Section 8.05 of the Credit Agreement, shall
survive the assignment pursuant to this Assignment and Acceptance as to matters
occurring prior to the Effective Date.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and any
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Dated: ______________
Section 1.
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Section 2.
(a) Assigned Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars assigned: $_______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland assigned: 'L'_____
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned: 'Y'_____
Aggregate outstanding principal amount of Revolving Credit
Advances in Euros assigned: 'E'_____
(b) Retained Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars retained: $_______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland retained: 'L'_____
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan retained: 'Y'_____
3
Aggregate outstanding principal amount of Revolving Credit
Advances in Euros retained: 'E'______
Effective Date(1):_______________
[NAME OF ASSIGNOR], as Assignor
By
--------------------------------------
Title:
Dated:
----------------------------------
[NAME OF ASSIGNEE], as Assignee
By
--------------------------------------
Title:
Dated:
----------------------------------
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Consented to this __________ day
of _______________
[NAME OF BORROWER]
By ]
Name:
Title:
----------
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
4
EXHIBIT D - FORM OF ASSUMPTION AGREEMENT
Dated:________
Honeywell International Inc.
X.X. Xxx 0000
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Citibank, N.A.,
as Agent
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Bank Loan Syndication
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of November
26, 2003 among Honeywell International Inc. (the "Company"), the Lenders parties
thereto, and Citibank, N.A. as Agent (the "Credit Agreement"; terms defined
therein being used herein as therein defined), for such Lenders.
The undersigned ("Assuming Lender") proposes to become an Assuming
Lender pursuant to Section 2.16 of the Credit Agreement and, in that connection,
hereby agrees that it shall become a Lender for purposes of the Credit Agreement
on [applicable Extension Date], assuming on such date the Commitment (without
giving effect to assignments thereof which have not yet become effective and
without regard to any Competitive Bid Commitment Reduction) as in effect on
[applicable Extension Date] of [name of applicable Non-Consenting Lender] (the
"Assignor") in the amount of $____________ and the Advances (without giving
effect to assignments thereof which have not yet become effective) owing to the
Assignor on [applicable Extension Date] in the amount of [indicate amounts and
currencies of various assigned Advances].
The Assignor (i) represents and warrants that as of the date hereof
its Commitment (without giving effect to assignments thereof which have not yet
become effective and without regard to any Competitive Bid Commitment Reduction)
is $______ and the outstanding principal amount of Advances owing to it (without
giving effect to assignments thereof which have not yet become effective) (A) in
Dollars is $______, (B) in lawful currency of Japan is (Y)____, (C) in lawful
currency of the United Kingdom of Great Britain and Northern Ireland is
(pound)____, (D) in Euros is (euro)____ [, and (F) indicate amounts of Advances
in other Foreign Currencies, if any]; (ii) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or any other Borrower or the performance or
observance by the Company or any other Borrower of any of its obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto.
The Assuming Lender (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof, the most recent financial statements referred to in
Section 5.01(h) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; (v) specifies as its
Lending Office (and address for notices) the offices set forth beneath its name
on the signature pages hereof; and (vi) attaches the forms prescribed by the
Internal Revenue Service of the United States required under Section 2.13 of
Credit Agreement.
The Assuming Lender requests that the Company deliver to the Agent (to
be promptly delivered to the Assuming Lender) Revolving Credit Notes payable to
the order of the Assuming Lender, dated as of the Extension Date and
substantially in the form of Exhibit A-1 to the Credit Agreement.
The effective date for this Assumption Agreement shall be [applicable
Extension Date]. Upon delivery of this Assumption Agreement to the Company and
the Agent, and satisfaction of all conditions imposed under Section 2.16 as of
[date specified above], the undersigned shall be a party to the Credit Agreement
and have the rights and obligations of a Lender thereunder and the Assignor
shall relinquish its rights and be released from its obligations under the
Credit Agreement. As of [date specified above], the Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees) to the Assuming Lender.
This Assumption Agreement may be executed in counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assumption Agreement.
2
This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By
--------------------------------------
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[NAME OF ASSIGNOR](2)
By
--------------------------------------
Name:
Title:
[Address]
Above Acknowledged and Agreed to:
HONEYWELL INTERNATIONAL INC.
By
--------------------------------------
Name:
Title:
----------
(2) Use only in connection with Section 2.16.
3
EXHIBIT E - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the
Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of November
26, 2003 among Honeywell International Inc. (the "Company"), the Lenders
named therein, and Citibank, N.A., as Agent for said Lenders (the "Credit
Agreement"). For convenience of reference, terms used herein and defined in the
Credit Agreement shall have the respective meanings ascribed to such terms in
the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's agreement
to extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of __________________
and is duly qualified to transact business in all jurisdictions in which
such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement, its Notes and
the consummation of the transactions contemplated thereby, are within the
Designated Subsidiary's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not cause or constitute a
violation of any provision of law or regulation or any provision of the
charter or by-laws of the Designated Subsidiary or result in the breach of,
or constitute a default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any of the properties,
revenues, or assets of the Designated Subsidiary pursuant to, any indenture
or other agreement or instrument to which the Designated Subsidiary is a
party or by which the Designated Subsidiary or its property may be bound or
affected.
3. This Designation Agreement and each of the Notes of the Designated
Subsidiary, when delivered, will have been duly executed and delivered, and
this
Designation Letter, the Credit Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will constitute a legal, valid and
binding obligation of the Designated Subsidiary enforceable against the
Designated Subsidiary in accordance with their respective terms except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
4. There is no action, suit, investigation, litigation or proceeding
including, without limitation, any Environmental Action, pending or to the
knowledge of the Designated Subsidiary Threatened affecting the Designated
Subsidiary before any court, governmental agency or arbitration that (i) is
reasonably likely to have a Material Adverse Effect, or (ii) purports to
effect the legality, validity or enforceability of this Designation Letter,
the Credit Agreement, any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required in connection with the execution, delivery or performance by
the Designated Subsidiary of this Designation Letter, the Credit Agreement
or the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, licenses, filings or registrations as have heretofore
been made, obtained or effected and are in full force and effect.
2
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Advance
will not be, (a) an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (b) a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Very truly yours,
HONEYWELL INTERNATIONAL INC.
By
--------------------------------------
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By
--------------------------------------
Name:
Title:
3
EXHIBIT F - FORM OF ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders parties
to the Credit
Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain 364-Day Credit Agreement dated
as of November 26, 2003 among Honeywell International Inc., the Lenders named
therein, and Citibank, N.A., as Agent (such Credit Agreement as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the
"Credit Agreement"; the terms defined therein being used herein as therein
defined), and (ii) to the Designation Letter, dated _________, pursuant to which
__________ has become a Borrower.
Pursuant to Section 9.12 of the Credit Agreement to which __________
has become subject pursuant to its Designation Letter, __________ has appointed
the undersigned (with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Xxxxxx Xxxxxx) as Process Agent to receive on behalf of
______________ and its property service of copies of the summons and complaint
and any other process which may be served in any action or proceeding in any New
York State or Federal court sitting in New York City arising out of or relating
to the Credit Agreement.
The undersigned hereby accepts such appointment as Process Agent and
agrees with each of you that (i) the undersigned will not terminate or abandon
the undersigned agency as such Process Agent without at least six months prior
notice to the Agent (and hereby acknowledges that the undersigned has been
retained for its services as Process Agent through __________ __, 2004), (ii)
the undersigned will maintain an office in New York City through such date and
will give the Agent prompt notice of any change of address of the undersigned,
(iii) the undersigned will perform its duties as Process Agent to receive on
behalf of ______________ and its property service of copies of the summons and
complaint and any other process which may be served in any action or proceeding
in any New York State or Federal court sitting in New York City arising out of
or relating to the Credit Agreement and (iv) the undersigned will forward
forthwith to ______________ at its address at ________________ or, if different,
its then current address, copies of any summons, complaint and other process
which the undersigned receives in connection with its appointment as Process
Agent.
This acceptance and agreement shall be binding upon the undersigned
and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By
--------------------------------------
2
EXHIBIT G - FORM OF OPINION
OF XXXX X. XXXXXX,
ASSISTANT GENERAL COUNSEL FOR THE COMPANY
__________ __, 2003
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A.,
as Agent for said Lenders
Honeywell International Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iv) of
the 364-Day Credit Agreement dated as of November 26, 2003 among Honeywell
International Inc. (the "Company"), the Lenders parties thereto, and Citibank,
N.A., as Agent for said Lenders (the "Credit Agreement"). Terms defined in the
Credit Agreement are, unless otherwise defined herein, used herein as therein
defined.
I have acted as counsel for the Company in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company pursuant to Article III of
the Credit Agreement, including the Certificate of Incorporation of the
Company and all amendments thereto (the "Charter") and the By-laws of the
Company and all amendments thereto (the "By-laws").
(3) A certificate of the Secretary of State of the State of Delaware,
dated ____________, 2003, attesting to the continued corporate existence
and good standing of the Company in that State.
I have also examined the originals, or copies certified to my satisfaction, of
such corporate records of the Company (including resolutions adopted by the
Board of Directors of the Company), certificates of public officials and of
officers of the Company, and agreements, instruments and documents, as I have
deemed necessary as a basis for the opinions hereinafter expressed. As to
questions of fact material to such opinions, I have, when relevant facts were
not
independently established by me, relied upon certificates of the Company or its
officers or of public officials. I have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the Initial Lenders
and the Agent.
I am qualified to practice law in the State of New York, and I do not
purport to be expert in, or to express any opinion herein concerning, any laws
other than the laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Company (a) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, (b) is duly
qualified as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed and (c) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes of the Company, and the consummation of the
transactions contemplated thereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene the Charter or the By-laws or (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934 and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or any material order, writ, judgment, decree, determination or
award or (iii) conflict with or result in the breach of, or constitute a
default under, any material indenture, loan or credit agreement, lease,
mortgage, security agreement, bond, note or any similar document. The
Credit Agreement and the Notes of the Company have been duly executed and
delivered on behalf of the Company.
3. No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority, administrative agency or
regulatory body, or any third party is required for the due execution,
delivery and performance by the Company of the Credit Agreement or the
Notes of the Company, or for the consummation of the transactions
contemplated thereby.
4. The Credit Agreement is, and each Note of the Company when
delivered under the Credit Agreement will be, the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally or
by the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
2
except that I express no opinion as to (i) the subject matter jurisdiction
of the District Courts of the United States of America to adjudicate any
controversy relating to the Credit Agreement or the Notes of the Company or
(ii) the effect of the law of any jurisdiction (other than the State of New
York) wherein any Lender or Applicable Lending Office may be located or
wherein enforcement of the Credit Agreement or the Notes of the Company may
be sought which limits rates of interest which may be charged or collected
by such Lender.
5. There is no action, suit, investigation, litigation or proceeding
against the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator now pending or, to the best of my
knowledge, Threatened that is reasonably likely to have a Material Adverse
Effect (other than the Disclosed Litigation) or that purports to affect the
legality, validity or enforceability of the Credit Agreement or any Note of
the Company or the consummation of the transactions contemplated thereby,
and there has been no adverse change in the status, or financial effect on
the Company or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) of the Credit Agreement.
6. The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
7. The Company is not a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
In connection with the opinions expressed by me above in paragraph 4,
I wish to point out that (i) provisions of the Credit Agreement that permit the
Agent or any Lender to take action or make determinations may be subject to a
requirement that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) that a party to whom an advance is owed
may, under certain circumstances, be called upon to prove the outstanding amount
of the Advances evidenced thereby and (iii) the rights of the Agent and the
Lenders provided for in Section 9.04(b) of the Credit Agreement may be limited
in certain circumstances.
Very truly yours,
3
EXHIBIT H - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
____________, 20__
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________ ("Designated
Subsidiary"), I have reviewed that certain 364-Day Credit Agreement dated as of
November 26, 2003 among Honeywell International Inc., the Lenders named therein,
and Citibank, N.A., as Agent for such Lenders (the "Credit Agreement"). In
connection therewith, I have also examined the following documents:
(i) The Designation Letter (as defined in the Credit Agreement)
executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the original,
certified, conformed or photographic copies of such other documents, records,
agreements and certificates as I have considered relevant hereto.
Except as expressly specified herein all terms used herein and defined
in the Credit Agreement shall have the respective meanings ascribed to them in
the Credit Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Designated Subsidiary (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of __________________,
(b) is duly qualified in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so qualify
or be licensed and (c) has all requisite corporate power and authority to
own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its Notes,
and the consummation of the transactions contemplated thereby, are within
the Designated Subsidiary's corporate powers, have been duly authorized by
all necessary corporate action, and do not and will not cause or constitute
a violation of any provision of law or regulation or any material
order, writ, judgment, decree, determination or award or any provision of
the charter or by-laws or other constituent documents of the Designated
Subsidiary or result in the breach of, or constitute a default or require
any consent under, or result in the creation of any lien, charge or
encumbrance upon any of the properties, revenues, or assets of the
Designated Subsidiary pursuant to, any material indenture or other
agreement or instrument to which the Designated Subsidiary is a party or by
which the Designated Subsidiary or its property may be bound or affected.
The Designation Letter and each Note of the Designated Subsidiary has been
duly executed and delivered on behalf of the Designated Subsidiary.
3. The Credit Agreement and the Designation Letter of the Designated
Subsidiary are, and each Note of the Designated Subsidiary when delivered
under the Credit Agreement will be, the legal, valid and binding obligation
of the Designated Subsidiary enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or moratorium or other similar laws
relating to the enforcement of creditors' rights generally or by the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and
except that I express no opinion as to (i) the subject matter jurisdiction
of the District Courts of the United States of America to adjudicate any
controversy relating to the Credit Agreement, the Designation Letter of the
Designated Subsidiary or the Notes of the Designated Subsidiary or (ii) the
effect of the law of any jurisdiction (other than the State of New York)
wherein any Lender or Applicable Lending Office may be located or wherein
enforcement of the Credit Agreement, the Designation Letter of the
Designated Subsidiary or the Notes of the Designated Subsidiary may be
sought which limits rates of interest which may be charged or collected by
such Lender.
4. There is no action, suit, investigation, litigation or proceeding
at law or in equity before any court, governmental agency or arbitration
now pending or, to the best of my knowledge and belief, Threatened against
the Designated Subsidiary that is reasonably likely to have a Material
Adverse Effect or that purports to affect the legality, validity or
enforceability of the Designation Letter of the Designated Subsidiary, the
Credit Agreement or any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required for the due execution, delivery and performance by the
Designated Subsidiary of its Designation Letter, the Credit Agreement or
the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, licenses, filings or registrations as have heretofore
been made, obtained or affected and are in full force and effect.
6. The Designated Subsidiary is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
2
7. The Designated Subsidiary is not a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
In connection with the opinions expressed by me above in paragraph 3,
I wish to point out that (i) provisions of the Credit Agreement which permit the
Agent or any Lender to take action or make determinations may be subject to a
requirement that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) a party to whom an advance is owed may,
under certain circumstances, be called upon to prove the outstanding amount of
the Advances evidenced thereby and (iii) the rights of the Agent and the Lenders
provided for in Section 9.04(b) of the Credit Agreement may be limited in
certain circumstances.
Very truly yours,
3
EXHIBIT I - FORM OF OPINION
OF SHEARMAN & STERLING LLP,
COUNSEL TO THE AGENT
[S&S LETTERHEAD]
__________ __, 2003
To the Initial Lenders party to the
Credit Agreement referred
to below and to Citibank, N.A.,
as Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as Agent,
in connection with the preparation, execution and delivery of the 364-Day Credit
Agreement dated as of November 26, 2003 (the "Credit Agreement"), among
Honeywell International Inc., a Delaware corporation (the "Company"), and each
of you (each a "Lender"). Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
In that connection, we have examined a counterpart of the Credit
Agreement executed by the Company, the Revolving Credit Notes executed by the
Company and delivered on the date hereof (for purposes of this opinion letter,
the "Notes") and, to the extent relevant to our opinion expressed below, the
other documents delivered by the Company pursuant to Section 3.01 of the Credit
Agreement.
In our examination of the Credit Agreement, the Notes and such other
documents, we have assumed, without independent investigation (a) the due
execution and delivery of the Credit Agreement by all parties thereto and of the
Notes by the Company, (b) the genuineness of all signatures, (c) the
authenticity of the originals of the documents submitted to us and (d) the
conformity to originals of any documents submitted to us as copies.
In addition, we have assumed, without independent investigation, that
(i) the Company is duly organized and validly existing under the laws of the
jurisdiction of its organization and has full power and authority (corporate and
otherwise) to execute, deliver and perform the Credit Agreement and the Notes
and (ii) the execution, delivery and performance by the Company of the Credit
Agreement and the Notes have been duly authorized by all necessary action
(corporate or otherwise) and do not (A) contravene the certificate of
incorporation, bylaws or other constituent documents of the Company, (B)
conflict with or result in the breach of any document or instrument binding on
the Company or (C) violate or require any governmental or regulatory
authorization or other action under any law, rule or regulation applicable to
the Company other than New York law or United States federal law applicable to
borrowers generally or, assuming the correctness of the Company's statements
made as representations and
warranties in Section 4.01(c) of the Credit Agreement, applicable to the
Company. We have also assumed that the Credit Agreement is the legal, valid and
binding obligation of each Lender, enforceable against such Lender in accordance
with its terms.
Based upon the foregoing examination and assumptions and upon such
other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that the Credit Agreement
and each of the Notes are the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms.
Our opinion above is subject to the following qualifications:
(i) Our opinion above is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar law affecting creditors' rights generally.
(ii) Our opinion above is also subject to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law).
(iii) We express no opinion as to the enforceability of the
indemnification provisions set forth in Section 9.04 of the Credit
Agreement to the extent enforcement thereof is contrary to public
policy regarding the exculpation of criminal violations, intentional
harm and acts of willful or gross negligence or recklessness.
(iv) We also express no opinion as to the enforceability of the
provisions of Section 9.15 of the Credit Agreement (concerning
currency conversion for judgments, and judgments in a currency other
than that of the primary currency).
(v) Our opinion above is limited to the law of the State of New
York and the federal law of the United States of America and we do not
express any opinion herein concerning any other law. Without limiting
the generality of the foregoing, we express no opinion as to the
effect of the law of a jurisdiction other than the State of New York
wherein any Lender may be located or wherein enforcement of the Credit
Agreement or any of the Notes may be sought that limits the rates of
interest legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to any
Person that becomes a Lender in accordance with the provisions of the Credit
Agreement. Any such Lender may rely on the opinion expressed above as if this
opinion letter were addressed and delivered to such Lender on the date hereof.
2
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other Lender who is permitted
to rely on the opinion expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind including any change of
law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any Lender relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this opinion letter at
such time.
Very truly yours,
3
