Exhibit 4.1
[CONFORMED COPY]
$1,500,000,000
BRIDGE LOAN AGREEMENT
dated as of
January 25, 2002
Tyco International Group S.A.,
Borrower
Tyco International Ltd.,
Guarantor
JPMorgan Chase Bank,
Administrative Agent
Citibank, X.X.
Xxxxxxx Xxxxx Credit Partners L.P.,
Co-Syndication Agents
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Credit Partners X.X.
Xxxxxxx Xxxxx Xxxxxx Inc.,
Joint Lead Arrangers and Joint Bookrunners
Table of Contents
Page
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS......................................................................1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.............................................16
SECTION 1.03. TYPES OF LOANS AND BORROWINGS...................................................17
ARTICLE 2
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND.............................................................17
SECTION 2.02. NOTICE OF BORROWING.............................................................17
SECTION 2.03. NOTICE TO BANKS; FUNDING OF LOANS...............................................17
SECTION 2.04. PROMISSORY NOTES................................................................18
SECTION 2.05. MATURITY OF LOANS...............................................................19
SECTION 2.06. INTEREST RATES..................................................................19
SECTION 2.07. COMMITMENT FEE..................................................................20
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS................................20
SECTION 2.09. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS; MANDATORY PREPAYMENTS........20
SECTION 2.10. OPTIONAL PREPAYMENTS............................................................21
SECTION 2.11. GENERAL PROVISIONS AS TO PAYMENTS...............................................22
SECTION 2.12. FUNDING LOSSES..................................................................22
SECTION 2.13. COMPUTATION OF INTEREST AND FEES................................................23
SECTION 2.14. REGULATION D COMPENSATION.......................................................23
SECTION 2.15. METHOD OF ELECTING INTEREST RATES...............................................23
ARTICLE 3
CONDITIONS TO BORROWING
SECTION 3.01. FIRST BORROWING.................................................................25
SECTION 3.02. ALL BORROWINGS..................................................................25
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. CORPORATE EXISTENCE AND POWER...................................................26
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION......................26
SECTION 4.03. BINDING EFFECT..................................................................26
SECTION 4.04. FINANCIAL INFORMATION...........................................................26
SECTION 4.05. LITIGATION......................................................................27
SECTION 4.06. COMPLIANCE WITH ERISA...........................................................27
SECTION 4.07. ENVIRONMENTAL MATTERS...........................................................27
SECTION 4.08. TAXES...........................................................................28
SECTION 4.09. SUBSIDIARIES....................................................................28
SECTION 4.10. NOT AN INVESTMENT COMPANY.......................................................28
SECTION 4.11. FULL DISCLOSURE.................................................................28
SECTION 4.12. OBLIGATIONS TO BE PARI PASSU....................................................28
ARTICLE 5
COVENANTS
SECTION 5.01. INFORMATION.....................................................................29
SECTION 5.02. PAYMENT OF OBLIGATIONS..........................................................30
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE..............................................31
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE................................31
SECTION 5.05. COMPLIANCE WITH LAWS............................................................32
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS; CONFIDENTIALITY......................32
SECTION 5.07. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS AND OTHER DISTRIBUTIONS......34
SECTION 5.08. DEBT............................................................................35
SECTION 5.09. FIXED CHARGE COVERAGE...........................................................36
SECTION 5.10. NEGATIVE PLEDGE.................................................................36
SECTION 5.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.....................................37
SECTION 5.12. TRANSACTIONS WITH AFFILIATES....................................................39
SECTION 5.13. RESTRICTED PAYMENTS.............................................................39
SECTION 5.14. SUBSIDIARY GUARANTORS...........................................................40
SECTION 5.15. USE OF PROCEEDS.................................................................40
SECTION 5.16. MOST FAVORED LENDER.............................................................40
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULTS..............................................................40
SECTION 6.02. NOTICE OF DEFAULT...............................................................43
ARTICLE 7
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION...................................................44
SECTION 7.02. AGENT AND AFFILIATES............................................................44
SECTION 7.03. ACTION BY AGENT.................................................................44
SECTION 7.04. CONSULTATION WITH EXPERTS.......................................................44
SECTION 7.05. LIMITS OF LIABILITY.............................................................44
SECTION 7.06. INDEMNIFICATION.................................................................45
SECTION 7.07. CREDIT DECISION.................................................................45
SECTION 7.08. SUCCESSOR AGENT.................................................................45
SECTION 7.09. AGENT'S FEE.....................................................................45
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR........................46
SECTION 8.02. ILLEGALITY......................................................................46
ii
SECTION 8.03. INCREASED COST AND REDUCED RETURN...............................................47
SECTION 8.04. TAXES...........................................................................48
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR LOANS......................50
SECTION 8.06. SUBSTITUTION OF BANK............................................................50
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES.........................................................................51
SECTION 9.02. NO WAIVERS......................................................................51
SECTION 9.03. EXPENSES; INDEMNIFICATION.......................................................52
SECTION 9.04. SHARING OF SET-OFFS.............................................................52
SECTION 9.05. AMENDMENTS AND WAIVERS..........................................................53
SECTION 9.06. SUCCESSORS AND ASSIGNS..........................................................53
SECTION 9.07. COLLATERAL......................................................................56
SECTION 9.08. GOVERNING LAW...................................................................56
SECTION 9.09. COUNTERPARTS; INTEGRATION; EFFECTIVENESS........................................56
SECTION 9.10. WAIVER OF JURY TRIAL............................................................56
SECTION 9.11. JUDGMENT CURRENCY...............................................................56
SECTION 9.12. JUDICIAL PROCEEDINGS............................................................57
ARTICLE 10
GUARANTEE
SECTION 10.01. THE GUARANTEE..................................................................58
SECTION 10.02. GUARANTEE UNCONDITIONAL........................................................58
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN CIRCUMSTANCES....59
SECTION 10.04. WAIVER BY THE GUARANTOR........................................................59
SECTION 10.05. SUBROGATION....................................................................59
SECTION 10.06. STAY OF ACCELERATION...........................................................59
Commitment Schedule
Pricing Schedule
Exhibit A - Promissory Note
Exhibit B - Opinion of Chief Corporate Counsel of the Guarantor
Exhibit C - Opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx
Exhibit D - Opinion of Special Luxembourg Counsel for the Borrower
Exhibit E - Opinion of Special Bermuda Counsel for the Guarantor
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Form of Subsidiary Guarantee
Exhibit I - Form of Subsidiary Counsel Opinion
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BRIDGE LOAN AGREEMENT
AGREEMENT dated as of January 25, 2002 among TYCO INTERNATIONAL GROUP
S.A., TYCO INTERNATIONAL LTD., the BANKS listed on the signature pages hereof
and JPMORGAN CHASE BANK, as Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ACQUIRED DEBT" means Debt of a Person (a) existing at the time such
Person becomes a Subsidiary or merges into a Subsidiary and (b) not created in
contemplation of such event.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"AFFILIATE" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Guarantor (a "CONTROLLING PERSON") or (ii)
any Person (other than the Guarantor or a Subsidiary) which is controlled by or
is under common control with a Controlling Person. As used herein, the term
"CONTROL" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. The fact that an
Affiliate of a Person is a member of a law firm that renders services to such
Person or its Affiliates does not mean that the law firm is an Affiliate of such
Person.
"AGENT" means JPMorgan Chase Bank in its capacity as administrative agent
for the Banks under the Financing Documents, any successor agent that becomes
the Agent pursuant to Section 7.08, and the respective corporate successors of
the foregoing acting in such capacity.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"APPROVED FUND" means any Fund that is administered or managed by (i) a
Bank, (ii) an affiliate of a Bank or (iii) an entity or an affiliate of an
entity that administers or manages a Bank.
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"AVAILABILITY PERIOD" means the period from and including the Effective
Date to but not including the Commitment Termination Date.
"BANK" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and the respective
corporate successors of the foregoing.
"BANK AFFILIATE" means, with respect to the Agent or any Bank, any Person
controlling, controlled by or under common control with the Agent or such Bank,
as the case may be.
"BASE RATE" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"BASE RATE LOAN" means a Loan which bears interest at the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Section 2.15 or Article 8.
"BASE RATE MARGIN" has the meaning specified in the Pricing Schedule.
"BERMUDA COMPANIES LAW" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Guarantor.
"BORROWER" means Tyco International Group S.A., a Luxembourg company, and
its successors.
"BORROWING" has the meaning set forth in Section 1.03.
"COMMITMENT" means (i) with respect to each Bank listed on the Commitment
Schedule, the amount set forth opposite the name of such Bank on the Commitment
Schedule and (ii) with respect to any Assignee, the amount of the Commitment
assumed by it pursuant to Section 9.06(c), in each case as such amount may be
changed from time to time pursuant to Section 2.08 or 9.06(c).
"COMMITMENT SCHEDULE" means the Commitment Schedule attached hereto.
"COMMITMENT TERMINATION DATE" means June 28, 2002.
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"CONDUIT" means a special purpose corporation which is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business.
"CONDUIT DESIGNATION" has the meaning set forth in Section 9.06(f).
"CONSENTS" has the meaning set forth in Section 4.01.
"CONSOLIDATED ASSETS" means, at any time, the total assets of the
Guarantor and its Consolidated Restricted Subsidiaries, determined on a
consolidated basis as of such time.
"CONSOLIDATED DEBT" means, at any date, the aggregate amount of Debt of
the Guarantor and its Consolidated Restricted Subsidiaries, determined on a
consolidated basis as of such date; PROVIDED that (i) if a Permitted Receivables
Transaction is outstanding at such date and is accounted for as a sale of
accounts receivable under generally accepted accounting principles, Consolidated
Debt determined as aforesaid shall be adjusted to include the additional Debt,
determined on a consolidated basis as of such date, which would have been
outstanding at such date had such Permitted Receivables Transaction been
accounted for as a borrowing at such date and (ii) Consolidated Debt shall in
any event include all Debt of any Person other than the Guarantor or a
Consolidated Restricted Subsidiary which is Guaranteed by the Guarantor or a
Consolidated Restricted Subsidiary, except that Consolidated Debt shall not
include Debt of a joint venture, partnership or similar entity which is
Guaranteed by the Guarantor or a Consolidated Restricted Subsidiary by virtue of
the joint venture, partnership or similar arrangement with respect to such
entity or by operation of applicable law (and not otherwise) so long as the
aggregate outstanding principal amount of such excluded Debt at any date does
not exceed $50,000,000.
"CONSOLIDATED EBIT" means, for any fiscal period, Consolidated Net Income
for such period plus, to the extent deducted in determining Consolidated Net
Income for such period, the aggregate amount of (i) Consolidated Interest
Expense, (ii) federal, state and local income tax expense and (iii) minority
interest (not to exceed for this purpose 20%) in the consolidated net income of
TyCom Ltd.
"CONSOLIDATED INTEREST EXPENSE" means, for any fiscal period, (without
duplication) (i) the consolidated interest expense of the Guarantor and its
Consolidated Restricted Subsidiaries for such period MINUS (ii) the consolidated
interest income of the Guarantor and its Consolidated Restricted Subsidiaries
for such period, if, and only if, such consolidated interest income is equal to
or less than $5,000,000, PLUS (iii) if a Permitted Receivables Transaction
outstanding during such period is accounted for as a sale of accounts receivable
under generally accepted accounting principles, the additional consolidated
interest expense that would have accrued during such period had such Permitted
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Receivables Transaction been accounted for as a borrowing during such period, in
each case determined on a consolidated basis.
"CONSOLIDATED NET INCOME" means, for any fiscal period, the consolidated
net income of the Guarantor and its Consolidated Restricted Subsidiaries for
such period, determined on a consolidated basis after eliminating therefrom all
Extraordinary Gains and Losses. "EXTRAORDINARY GAINS AND LOSSES" means and
includes, for any fiscal period, all extraordinary gains and losses and all
other material non-recurring non-cash items of the Guarantor and its
Consolidated Restricted Subsidiaries for such period, determined on a
consolidated basis and, in addition, includes, without limitation, gains or
losses from the discontinuance of operations and gains or losses of the
Guarantor and its Consolidated Restricted Subsidiaries for such period resulting
from the sale, conversion or other disposition of material assets of the
Guarantor or any Consolidated Restricted Subsidiary other than in the ordinary
course of business.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Guarantor and its Consolidated Restricted
Subsidiaries, determined on a consolidated basis as of such date and adjusted so
as to exclude the effect of the currency translation adjustment as of such date.
"CONSOLIDATED RESTRICTED SUBSIDIARY" means, at any date, any Restricted
Subsidiary or other entity the accounts of which would be consolidated with
those of the Guarantor in its consolidated financial statements if such
statements were prepared as of such date.
"CONSOLIDATED SUBSIDIARY" means, at any date, with respect to any Person,
any Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date; unless otherwise specified, Consolidated
Subsidiary means a Consolidated Subsidiary of the Guarantor.
"CONSOLIDATED TANGIBLE ASSETS" means, at any time, the total assets less
all Intangible Assets appearing on the most recently prepared balance sheet of
the Guarantor and its Consolidated Restricted Subsidiaries as of the end of a
fiscal quarter of the Guarantor, prepared on a consolidated basis in accordance
with United States generally accepted accounting principles as in effect on the
date of calculation.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, (i) Consolidated
Net Worth as of such date MINUS (ii) Intangible Assets as of such date.
"CONSOLIDATED TOTAL CAPITALIZATION" means, at any date, the sum of
Consolidated Debt and Consolidated Net Worth, each determined as of such date.
"DEBT" of any Person means, at any date, without duplication, (i) the
principal amount of all obligations of such Person for borrowed money, (ii) the
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principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (it being understood that,
subject to the proviso to this definition of "Debt," performance bonds,
performance guaranties, letters of credit, bank guaranties and similar
instruments shall not constitute Debt of such Person to the extent that the
outstanding reimbursement obligations of such Person in respect thereof are
collateralized by cash or cash equivalents, which cash or cash equivalents would
not be reflected as assets on a balance sheet of such Person prepared in
accordance with generally accepted accounting principles), (iii) all obligations
of such Person to pay the deferred purchase price of property or services
recorded on the books of such Person, except for (a) trade and similar accounts
payable and accrued expenses arising in the ordinary course of business, and (b)
employee compensation and pension obligations, and other obligations arising
from employee benefit programs and agreements or other similar employment
arrangements, (iv) all obligations of such Person as lessee which are
capitalized on the books of such Person in accordance with generally accepted
accounting principles, (v) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of such Person, and
(vi) all Debt of others Guaranteed by such Person; PROVIDED, HOWEVER, that Debt
shall not include:
(A) contingent reimbursement obligations in respect of performance
bonds, performance guaranties, bank guaranties or letters of
credit issued in lieu of performance bonds or performance
guaranties or similar instruments, in each case, incurred by such
Person in the ordinary course of business;
(B) contingent reimbursement obligations in respect of trade letters
of credit, or similar instruments, in each case, incurred by such
Person in the ordinary course of business; or
(C) contingent reimbursement obligations in respect of standby letters
of credit or similar instruments securing self-insurance
obligations of such Person;
in each case, so long as the underlying obligation supported thereby does not
itself constitute Debt.
"DEBT RATING" means a rating of the Borrower's long-term debt which is
not secured or supported by a guarantee, letter of credit or other form of
credit enhancement. If a Debt Rating by a Rating Agency is required to be at or
above a specified level and such Rating Agency shall have changed its system of
classifications after the date hereof, the requirement will be met if the Debt
Rating by such Rating Agency is at or above the new rating which most closely
corresponds to the specified level under the old rating system.
5
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOLLARS" and the sign "$" mean lawful currency of the United States.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in
New York City are authorized by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 9.09.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means any Subsidiary and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Subsidiary, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
6
"EURO-DOLLAR LOAN" means a Loan that bears interest at a Euro-Dollar Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election.
"EURO-DOLLAR MARGIN" has the meaning specified in the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.06(b) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in
New York City with deposits exceeding five billion dollars in
respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING CREDIT AGREEMENTS" means (i) the 364-Day Credit Agreement dated
as of February 7, 2001, among the Borrower, the Guarantor, the banks listed
therein and JPMorgan Chase Bank, as agent for such banks, as amended to the
Effective Date, and (ii) the Five-Year Credit Agreement dated as of February 7,
2001, among the Borrower, the Guarantor, the banks listed therein and JPMorgan
Chase Bank, as agent for such banks, as amended to the Effective Date.
"EXISTING TYCO US DEBT" means publicly held and privately placed debt
securities of Tyco US outstanding at December 22, 1997.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of
New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to JPMorgan Chase Bank on such day on such
transactions as determined by the Agent.
"FINANCING DOCUMENTS" means this Agreement, the Subsidiary Guarantees and
the Promissory Notes.
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"FUND" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GROUP OF LOANS" means, at any time, a group of Loans consisting of (i)
all such Loans which are Base Rate Loans at such time or (ii) all such Loans
which are Euro-Dollar Loans having the same Interest Period at such time,
PROVIDED that, if a Loan of any particular Bank is converted to or made as a
Base Rate Loan pursuant to Article 8, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), PROVIDED that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"GUARANTOR" means Tyco International Ltd., a Bermuda company, and its
successors.
"GUARANTOR'S 2001 FORM 10-K" means the Guarantor's annual report on Form
10-K for the fiscal year ended September 30, 2001, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INDENTURE" means the Indenture dated as of April 23, 1998 among the
Borrower, the Guarantor and The Bank of
New York, as Trustee, as amended or
supplemented from time to time.
"INTANGIBLE ASSETS" means, at any date, the amount (if any) which would
be stated under the heading "Goodwill and Other Intangible Assets, Net" or under
8
any other heading relating to intangible assets separately listed, in each case,
on the face of a balance sheet of the Guarantor and its Consolidated Restricted
Subsidiaries prepared on a consolidated basis as of such date.
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter (or such other
period of time as may at the time be mutually agreed by the Borrower and the
Banks), as the Borrower may elect in such notice; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month; and
(c) no Interest Period may end after June 28, 2002.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Guarantor or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement (other than an operating lease)
relating to such asset.
"LOAN" means a loan made or to be made by a Bank pursuant to Section
2.01(a); PROVIDED that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
Loan shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.06(b).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, consolidated financial position or consolidated results of operations
of
9
the Guarantor and its Consolidated Restricted Subsidiaries, considered as a
whole, (ii) the ability of the Obligors to perform their obligations under the
Financing Documents, or (iii) the rights and remedies of the Agent or any Bank
under the Financing Documents.
"MATERIAL DEBT" means Debt (other than (i) any Guarantee by the Guarantor
of Debt of a Subsidiary, (ii) any Guarantee by a Subsidiary of Debt of the
Guarantor or another Subsidiary, (iii) any Debt of the Guarantor owed to a
Wholly-Owned Consolidated Subsidiary, (iv) any Debt of a Subsidiary owed to the
Guarantor, to a Wholly-Owned Consolidated Subsidiary or (v) Permitted
Nonrecourse Debt) of the Guarantor and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an aggregate
outstanding principal amount exceeding $50,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"MATURITY DATE" means the earliest to occur of (i) June 28, 2002, (ii)
the date of any voluntary unscheduled termination or reduction of commitments or
prepayment of term loans under either Existing Credit Agreement or any other
committed credit facility of the Guarantor or any Restricted Subsidiary in an
amount of $100,000,000 or more or (iii) the date of any other voluntary
prepayment of any non-revolving Debt of the Guarantor or any Restricted
Subsidiary in an aggregate outstanding principal amount exceeding $100,000,000;
PROVIDED that if such day is not a Euro-Dollar Business Day, the Maturity Date
shall be the next succeeding Euro-Dollar Business Day and PROVIDED FURTHER that
any transaction solely between or among any combination of the Guarantor and its
Restricted Subsidiaries shall be disregarded for purposes of clauses (ii) and
(iii) above. The Guarantor shall notify the Agent not later than the Maturity
Date of any event described in clause (ii) or (iii) above (subject to the
proviso above).
"MOODY'S" means Xxxxx'x Investors Service, Inc., or any successor to such
corporation's business of rating debt securities.
"MULTIEMPLOYER PLAN" means at any time a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA either (i) to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
(ii) has at any time within the preceding five plan years been maintained, or
contributed to, by any Person who was at such time a member of the ERISA Group
for employees of any Person who was at such time a member of the ERISA Group.
"NET CASH PROCEEDS" means, with respect to any event (a) the cash
proceeds received in respect of such event including any cash received in
respect of any non-cash proceeds, but only as and when received, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid by the Guarantor
and its Restricted Subsidiaries to third parties in connection with such event,
(ii) in the
10
case of a sale, transfer or other disposition of an asset (including pursuant to
a sale and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the Guarantor and
its Restricted Subsidiaries as a result of such event to repay Debt (other than
Loans) secured by such asset or otherwise subject to mandatory prepayment as a
result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Guarantor and its Restricted Subsidiaries, and
the amount of any reserves established by the Guarantor and its Restricted
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next succeeding
year and that are directly attributable to such event (as determined reasonably
and in good faith by a Responsible Officer).
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.15.
"OBLIGOR" means, at any time, the Borrower, the Guarantor and each
Subsidiary Guarantor at such time.
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUIRED DEBT" means Acquired Debt of a Person which:
(a) remains outstanding no more than 180 days after the date such Person
becomes a Restricted Subsidiary or merges into a Restricted Subsidiary (the
"ACQUISITION DATE"); OR
(b) remains outstanding more than 180 days after the Acquisition Date,
but only if (x) 180 days after the Acquisition Date, the senior unsecured debt
of the Borrower is rated at least BBB- by S&P or Baa3 by Moody's, (y) such
Acquired Debt by its terms is not callable or redeemable prior to its stated
maturity within 180 days after the Acquisition Date and (z) such Person in good
faith has made or caused to be made an offer to acquire all such Acquired Debt,
including, without limitation, an offer to exchange such Acquired Debt for
securities of the Borrower, on terms which, in the opinion of an independent
investment banking firm of national reputation and standing, are consistent with
market practices in existence at the time for offers of a similar nature,
PROVIDED that the expiration date of any such offer shall not be later than the
180 days after the Acquisition Date, and PROVIDED FURTHER that if Acquired Debt
which becomes Permitted Acquired Debt under this clause (b) thereafter becomes
callable or
11
redeemable prior to its stated maturity, such Acquired Debt shall cease to be
Permitted Acquired Debt under this clause (b) 90 days after it becomes so
callable or redeemable; OR
(c) remains outstanding more than 180 days after the Acquisition Date and
is not Permitted Acquired Debt under clause (b), but only if and to the extent
that the aggregate outstanding principal amount of Permitted Acquired Debt under
this clause (c) at no time exceeds 5% of the Consolidated Tangible Assets of the
Guarantor.
"PERMITTED NONRECOURSE DEBT" means Debt in an aggregate principal amount
up to but not exceeding $500,000,000 which is (i) Debt of a Subsidiary of the
Guarantor other than the Borrower or a Significant Subsidiary, (ii) which is not
Guaranteed by or otherwise Debt of the Guarantor, the Borrower or any
Significant Subsidiary and (iii) which is designated by the Guarantor by notice
to the Agent as Permitted Nonrecourse Debt for purposes of this Agreement
substantially simultaneously with the incurrence thereof (or substantially
simultaneously with the establishment of the credit facility pursuant to which
such Debt is incurred).
"PERMITTED RECEIVABLES TRANSACTION" means any sale or sales of,
refinancing of and/or financing secured by, any accounts receivable of the
Guarantor and/or any of its Restricted Subsidiaries (the "RECEIVABLES") pursuant
to which the Guarantor and its Restricted Subsidiaries realize aggregate net
proceeds of not more than $2,500,000,000 at any one time outstanding, including,
without limitation, any revolving purchase(s) of Receivables where the maximum
aggregate uncollected purchase price (exclusive of any deferred purchase price)
for such Receivables at any time outstanding does not exceed $2,500,000,000. For
avoidance of doubt, the incurrence of Permitted Nonrecourse Debt does not
constitute a Permitted Receivables Transaction, whether or not such Permitted
Nonrecourse Debt might qualify as a Permitted Receivables Transaction in
accordance with this definition, and the proceeds of Permitted Nonrecourse Debt
do not count against the $2,500,000,000 limitation set forth above.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
12
"PRICING SCHEDULE" means the Pricing Schedule attached hereto.
"PRIME RATE" means the rate of interest publicly announced by JPMorgan
Chase Bank in
New York City from time to time as its Prime Rate.
"PRINCIPAL OBLIGOR" means the Borrower or the Guarantor.
"PROMISSORY NOTES" means promissory notes of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "PROMISSORY NOTE" means any one of such promissory notes
issued hereunder.
"PROPERTY" means any interest of any kind in any property or assets,
whether real, mixed or personal and whether tangible or intangible.
"QUARTERLY PAYMENT DATES" means each March 31, June 30, September 30 and
December 31.
"RATING AGENCY" means S&P or Moody's.
"REDUCTION EVENT" means:
(a) any sale, lease or other disposition (including any such transaction
effected by way of merger or consolidation) by the Guarantor or any of its
Restricted Subsidiaries of any asset, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, but
excluding (i) dispositions of temporary cash investments, inventory and used,
surplus or worn out equipment in the ordinary course of business and (ii)
asset-securitization and sale-leaseback transactions for Net Cash Proceeds in an
aggregate amount not exceeding $500,000,000; or
(b) the issuance by the Guarantor or any Restricted Subsidiary of any
equity securities, other than (i) any such issuance of equity securities to the
Guarantor or a Subsidiary, (ii) the issuance by the Guarantor of its common
shares pursuant to employee benefit or employee stock option plans or other
stock-based employee compensation plans, (iii) the issuance by the Guarantor of
its common shares pursuant to any non-employee director stock plan or dividend
reinvestment plan, (iv) any such issuance as consideration for an acquisition by
the Guarantor or any Restricted Subsidiary or (v) any issuance by the Guarantor
of its common shares upon conversion, exchange or exercise of currently
outstanding securities of the Guarantor or any Subsidiary of the Guarantor; or
(c) the issuance by the Guarantor or any Restricted Subsidiary of any
debt securities, other than commercial paper issued in the ordinary course of
business; or
(d) the establishment by the Guarantor or any Restricted Subsidiary of
any new committed loan facility, or an increase in the amount available under
any
13
existing committed loan facility (but, in the case of the Existing Credit
Agreements, only if and to the extent the aggregate commitments thereunder
exceed $5,855,000,000) of the Guarantor or any Restricted Subsidiary (which
shall be deemed for purposes of Section 2.09(b) to produce gross cash proceeds
to the Guarantor or such Restricted Subsidiary equal to the incremental amount
available as a consequence of such establishment or increase, whether or not
borrowed at the time);
PROVIDED, however, that no Reduction Event shall be deemed to occur by reason of
any transaction solely between or among any combination of the Guarantor and its
Restricted Subsidiaries.
"REFINANCING" has the meaning set forth in Section 5.07 (and the term
"REFINANCED" has a correlative meaning).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments at such time or, if the Commitments shall
have terminated, holding at least 66 2/3% of the aggregate unpaid amount of the
Loans at such time.
"RESPONSIBLE OFFICER" means any of the following: (i) the Chairman,
President, Vice President and Chief Financial Officer, Treasurer and Secretary
of the Guarantor or (ii) the Chairman, President, Vice President and Chief
Financial Officer, Treasurer or Secretary of the Borrower or a Managing Director
of the Borrower.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on any
shares of the Guarantor's capital stock (except to the extent such dividends and
distributions are payable in shares of its capital stock or Stock Equivalents)
or (ii) any payment (except to the extent payable in shares of the Guarantor's
capital stock or Stock Equivalents) on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the Guarantor's capital stock or
(b) any option, warrant or other right to acquire shares of the Guarantor's
capital stock.
"RESTRICTED SUBSIDIARY" means, at any date, a Subsidiary of the Guarantor
other than Tyco Capital and its Subsidiaries.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to its business of rating debt
securities.
"SIGNIFICANT SUBSIDIARY" means, at any date, (A) any Consolidated
Subsidiary which, including its consolidated subsidiaries, meets any of the
following conditions:
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(i) the proportionate share attributable to such
Consolidated Subsidiary of the total assets of the Guarantor and
its Consolidated Subsidiaries (after intercompany eliminations)
exceeds 15% of the total assets of the Guarantor and the
Consolidated Subsidiaries, determined on a consolidated basis as
of the end of the most recently completed fiscal year; or
(ii) the Guarantor's and its Consolidated Subsidiaries'
equity in the income of such Consolidated Subsidiary from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle exceeds 15%
of such income of the Guarantor and its Consolidated Subsidiaries,
determined on a consolidated basis for the most recently completed
fiscal year; and
(B) any other Subsidiary which is an Obligor.
"STOCK EQUIVALENTS" means, with respect to any Person, options, warrants,
calls or other rights entered into or issued by such Person to acquire any
capital stock or equity securities of, or other ownership interests in, or
securities convertible into or exchangeable for, capital stock or equity
securities of, or other ownership interests in, such Person.
"SUBSIDIARY" means, with respect to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person;
unless otherwise specified, Subsidiary means a Subsidiary of the Guarantor.
"SUBSIDIARY GUARANTEE" means a Guarantee entered into by a Subsidiary
substantially in the form of Exhibit H hereto.
"SUBSIDIARY GUARANTOR" means, at any time, a Subsidiary which at or prior
to such time shall have delivered to the Agent (i) a Subsidiary Guarantee duly
executed by such Subsidiary, which Subsidiary Guarantee has not terminated in
accordance with its terms, (ii) an opinion of counsel for such Subsidiary (which
counsel may be an employee of the Guarantor or such Subsidiary) reasonably
satisfactory to the Agent with respect to such Subsidiary Guarantee,
substantially in the form of Exhibit I hereto and covering such additional
matters relating to such Subsidiary Guarantee as the Agent may reasonably
request and (iii) all documents the Agent may reasonably request relating to the
existence of such Subsidiary, the corporate authority for and the validity of
such Subsidiary Guarantee, and any other matters reasonably determined by the
Agent to be relevant thereto, all in form and substance reasonably satisfactory
to the Agent.
"TYCO CAPITAL" means Tyco Capital Ltd., a Bermuda company, and its
successors.
15
"TYCO US" means Tyco International (US) Inc., a Massachusetts
corporation, and its successors.
"TYCOLUX DEBT SECURITIES" means any unsecured debt securities issued by
the Borrower pursuant to the Indenture.
"TYPE" has the meaning specified in Section 1.03.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or to any other Person under Title IV of ERISA
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares and investments by foreign nationals mandated by
applicable law) are at the time beneficially owned, directly or indirectly, by
the Guarantor.
"WHOLLY-OWNED CONSOLIDATED RESTRICTED SUBSIDIARY" means any Consolidated
Restricted Subsidiary all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares and investments by
foreign nationals mandated by applicable law) are at the time beneficially
owned, directly or indirectly, by the Guarantor.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with United
States generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the
Guarantor's independent public accountants) with the then most recent audited
consolidated financial statements of the Guarantor and its Consolidated
Subsidiaries delivered to the Banks; PROVIDED that, if either (i) the Guarantor
notifies the Agent that the Guarantor wishes to eliminate the effect of any
change in generally accepted accounting principles on the operation of any
covenant contained in Article 5 or (ii) the Agent notifies the Guarantor that it
wishes to effect such an elimination, then the Guarantor's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the
16
relevant change in generally accepted accounting principles became effective,
until either (A) such notice is withdrawn by the party giving such notice or (B)
such covenant is amended in a manner satisfactory to the Guarantor and the Agent
to reflect such change in generally accepted accounting principles.
SECTION 1.03. TYPES OF LOANS AND BORROWINGS. The term "BORROWING" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article 2 on the same date, all of which Loans are of the same Type
(subject to Article 8) and, in the case of Euro Dollar Loans, have the same
initial Interest Period. Loans hereunder are distinguished by "TYPE", which
refers to the determination whether a Loan is a Euro-Dollar Loan or a Base Rate
Loan, each of which constitutes a "TYPE".
ARTICLE 2.
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. (a) LOANS. Each Bank severally agrees,
on the terms and conditions set forth in this Agreement, to make loans to the
Borrower during the Availability Period in an aggregate amount up to but not
exceeding the amount of its Commitment. The Commitments are not revolving in
nature, and amounts repaid or prepaid may not be reborrowed.
(B) MINIMUM BORROWINGS. Each Borrowing under this Section 2.01 shall be
in an aggregate amount of $10,000,000 or a larger multiple thereof (except that
any such Borrowing may be in the aggregate amount of the available Commitments)
and shall be made from the several Banks ratably in proportion to their
respective Commitments.
SECTION 2.02. NOTICE OF BORROWING. The Borrower shall give the Agent
notice (a "NOTICE OF BORROWING") not later than 10:30 A.M. (
New York City time)
on (y) the date of each Base Rate Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the initial Type of Loans comprising such Borrowing; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. NOTICE TO BANKS; FUNDING OF LOANS.
17
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) On the date of each Borrowing, each Bank shall make available its
ratable share of such Borrowing not later than 2:00 P.M. (
New York City time),
in Federal or other funds immediately available in
New York City, to the Agent
at its office specified in or pursuant to . Unless the Agent determines that any
applicable condition specified in Article 3 has not been satisfied or waived in
accordance with Section 9.05, the Agent will make the funds so received from the
Banks available to the Borrower no later than 3:00 P.M. (
New York City time) on
such date, in Federal or other funds immediately available in
New York City, as
directed by the Borrower.
(c) Unless the Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the Agent such
Bank's share of such Borrowing, the Agent may assume that such Bank has made
such share available to the Agent on the date of such Borrowing in accordance
with subsection (b) of this Section 2.03 and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have so made such share
available to the Agent, such Bank and, if such Bank shall not have paid such
amount to the Agent within two Domestic Business Days of the Agent's demand
therefor, the 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 the Borrower until the date such amount is
repaid to the Agent, at the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make any Loan to be made by it on the date
specified therefor shall not relieve any other Bank of any obligation to make a
Loan on such date.
SECTION 2.04. PROMISSORY NOTES. (a) Each Bank may, by notice to the
Borrower and the Agent, request (i) that its Loans be evidenced by a single
Promissory Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans or (ii) that its Loans of a particular Type be
evidenced by a separate Promissory Note in an amount equal to the aggregate
unpaid principal amount of such Loans. Each such Promissory Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant Type. Each
reference in this Agreement to the "Promissory Note" of such Bank shall be
deemed to refer to and include any or all of such Promissory Notes, as the
context may require.
18
(b) Each Bank shall record the date, amount, Type and maturity of each
Loan made by it and the date and amount of each payment of principal made by the
Borrower with respect thereto, and may, if such Bank so elects in connection
with any transfer or enforcement of its Promissory Note, endorse on the schedule
forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; PROVIDED that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Promissory Notes. Each
Bank is hereby irrevocably authorized by the Borrower so to endorse its
Promissory Note and to attach to and make a part of its Promissory Note a
continuation of any such schedule as and when required.
SECTION 2.05. MATURITY OF LOANS. Each Loan shall mature, and the
principal amount thereof shall be due and payable (together with interest
accrued thereon), on the Maturity Date.
SECTION 2.06. INTEREST RATES. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the sum of the
Base Rate Margin for such day plus the Base Rate for such day. Such interest
shall be payable at maturity, quarterly in arrears on each Quarterly Payment
Date prior to maturity and, with respect to the principal amount of any Base
Rate Loan converted to a Euro-Dollar Loan, on the date such amount is so
converted. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment, at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for
each such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the applicable London Interbank Offered Rate for such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Euro-Dollar Loan
for any Interest Period means the rate appearing on the Screen at approximately
11:00 a.m., London time, on the Rate Fixing Date as the rate for deposits in
Dollars with a maturity comparable to such Interest Period. If no rate appears
on the Screen for the necessary currency and period, then the "London Interbank
Offered Rate" with respect to such Euro-Dollar Loan for such Interest Period
shall be the rate at which deposits of that amount with a maturity comparable to
such Interest Period are offered by the principal London office of the Agent in
the London interbank market at approximately 11:00 a.m., London time, on the
Rate Fixing Date.
19
The "SCREEN" means Telerate Page 3750; PROVIDED that the Agent may
nominate an alternative source of screen rates if this page is replaced by
another which displays rates for inter-bank deposits offered by leading banks in
London.
"RATE FIXING DATE" means, with respect to any Interest Period, the date
that is two Euro-Dollar Business Days before the first day of such Interest
Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Loan on the day before such payment was due and (ii) the rate
applicable to Base Rate Loans for such day.
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks of
each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
SECTION 2.07. COMMITMENT FEE. The Borrower shall pay to the Agent for the
account of the Banks ratably a commitment fee at a rate per annum of 0.10%. Such
commitment fee shall accrue from and including the date hereof to but excluding
the Commitment Termination Date (or earlier date of termination of the
Commitments in their entirety), on the daily unused amount of the Commitments.
Accrued commitment fees shall be payable in arrears on the Commitment
Termination Date (or earlier date of termination of the Commitments in their
entirety).
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The
Borrower may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, or (ii) ratably reduce from time to
time by an aggregate amount of $10,000,000 or any larger multiple thereof, the
aggregate amount of the unused Commitments. Promptly after receiving a notice
pursuant to this Section, the Agent shall notify each Bank of the contents
thereof.
SECTION 2.09. MANDATORY TERMINATION OR REDUCTION OF COMMITMENTS;
MANDATORY PREPAYMENTS. (a) The Commitments shall be ratably reduced on the date
of any Borrowing by the aggregate amount of the Loans comprising such Borrowing,
and if still existing on the Commitment Termination Date, shall terminate on the
Commitment Termination Date.
(b) The unused Commitments (if any) shall be ratably reduced
automatically in the event that at any time, or from time to time, on or after
the Effective Date the Guarantor or any Restricted Subsidiary shall receive any
Net Cash Proceeds of any Reduction Event, by an amount equal to the largest
multiple of $1,000,000 which does not exceed the amount of such Net Cash
Proceeds. The
20
reductions in the Commitments required by this subsection shall be effective on
the date of the receipt by the Guarantor or such Restricted Subsidiary of such
Net Cash Proceeds
(c) In the event that at any time or from time to time on or after the
Effective Date the Guarantor or any Restricted Subsidiary shall receive any Net
Cash Proceeds of any Reduction Event, the Loans shall be prepaid in an aggregate
principal amount equal to the largest multiple of $1,000,000 which does not
exceed the amount of such Net Cash Proceeds, less the amount of any reduction in
the Commitments pursuant to subsection (b) on account of such receipt. Each such
prepayment shall be made together with accrued interest on the amount prepaid,
shall be made not later than the third Euro-Dollar Business Day following the
date of such receipt (or, in the case of any deemed receipt of Net Cash Proceeds
contemplated by the paragraph (d) of the definition of Reduction Event, the
tenth Euro-Dollar Business Day following the date of such deemed receipt) and
shall be made with respect to such outstanding Groups of Loans as the Borrower
may designate to the Agent not less than three Euro-Dollar Business Days prior
to the date required for such payment or prepayment or, failing such designation
by the Borrower, as the Agent may specify by notice to the Borrower.
(d) The Guarantor shall notify the Agent not later than the date of
receipt by it or a Restricted Subsidiary of Net Cash Proceeds of a Reduction
Event, specifying the date and amount thereof. The Agent shall promptly notify
each Bank of the contents of each such notice received by it.
(e) If and to the extent that the aggregate amount of reductions in the
unused Commitments and prepayments of the Loans pursuant to subsections (b) and
(c) above on or prior to April 8, 2002 are less than $645,000,000, then on April
8, 2002 the unused Commitments (if any) shall be ratably reduced and the Loans
shall be prepaid in such amount as may be necessary so that after giving effect
thereto, the aggregate amount of all such reductions and prepayments pursuant to
subsections (b) and (c) above and this subsection (e) shall equal $645,000,000;
PROVIDED that if Net Cash Proceeds of a Reduction Event shall have been received
(or deemed received) on or prior to April 8, 2002 requiring a prepayment of the
Loans subsequent to April 8, 2002, this subsection (e) shall be applied as if
such prepayment had been made on April 8, 2002.
SECTION 2.10. OPTIONAL PREPAYMENTS. (a) Subject in the case of
Euro-Dollar Loans to Section 2.12, the Borrower may, upon notice to the Agent
not later than 10:30 A.M. (New York City time) on the Domestic Business Day
preceding the date of prepayment of any Group of Base Rate Loans or the third
Euro-Dollar Business Day before the date of prepayment of any Group of
Euro-Dollar Loans, prepay any such Group, in whole at any time, or from time to
time in part in amounts aggregating not less than $10,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to but not
including the date of prepayment. Each such optional prepayment shall be applied
to prepay ratably the Loans of the several Banks included in such Group of
Loans.
21
(b) Upon receipt of a notice of prepayment pursuant to this Section, the Agent
shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and once notice is so given to the
Banks, the Borrower's notice of prepayment shall not thereafter be revocable by
the Borrower.
SECTION 2.11. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Obligors shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder not later than 2:00 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to the Agent at
its address in New York City specified in or pursuant to . The Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Agent for the respective accounts of the Banks. Whenever any payment of
principal of, or interest on, the Base Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.
SECTION 2.12. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 (other than Section
8.02)) on any day other than the last day of an Interest Period applicable
thereto, or if the Borrower fails to borrow, prepay, convert or continue any
Euro-Dollar Loans after notice has been given to any Bank in accordance with
Section 2.03(a), 2.09(d), 2.10(b) or 2.15 (other than as a result of default by
such Bank), the Borrower shall reimburse each Bank within 15 days after written
demand for any resulting loss or expense reasonably incurred by it (or by an
existing or prospective Participant in the related Loan) in obtaining,
liquidating or employing deposits or other funds from third parties, but
excluding loss of margin for the
22
period after any such payment or conversion or failure to borrow, prepay,
convert or continue; PROVIDED that such Bank shall have delivered to the
Borrower a certificate specifying in reasonable detail the calculation of, and
the reasons for, the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. REGULATION D COMPENSATION. Each Bank may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such Bank up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one MINUS the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Agent, in which case such
additional interest on the Euro-Dollar Loans of such Bank shall be payable to
such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after the giving of
such notice, and (y) shall notify the Borrower at least five Euro-Dollar
Business Days prior to each date on which interest is payable on the Euro-Dollar
Loans of the amount then due it under this Section.
SECTION 2.15. METHOD OF ELECTING INTEREST RATES. (a) The Loans included
in each Borrowing shall initially be of the Type specified by the Borrower in
the applicable Notice of Borrowing. Thereafter, the Borrower may from time to
time elect to change or continue the Type of each such Group of Loans (subject
to subsection 2.15(d) of this Section and the provisions of Article 8), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, subject to
Section 2.12 if any such conversion is effective on any day other than
the last day of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Agent not later than 10:30 A.M. (New York City time) on
the third Euro-Dollar Business Day before the conversion or continuation
selected
23
in such notice is to be effective. A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; PROVIDED that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each at least
$10,000,000 (unless such portion is comprised of Base Rate Loans). If no such
notice is timely received before the end of an Interest Period for any Group of
Euro-Dollar Loans, the Borrower shall be deemed to have elected that such Group
of Loans be converted to Base Rate Loans at the end of such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection 2.15(a) above;
(iii) if the Loans comprising such Group are to be converted, the
new Type of Loans and, if the Loans resulting from such conversion are to
be Euro-Dollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall notify each Bank of
the contents thereof and such notice shall not thereafter be revocable by the
Borrower.
(d) The Borrower shall not be entitled to elect to convert any Loans to,
or continue any Loans for an additional Interest Period as, Euro-Dollar Loans if
(i) the aggregate amount of any Group of Euro-Dollar Loans created or continued
as a result of such election would be less than $10,000,000 or (ii) a Default
shall have occurred and be continuing when the Borrower delivers notice of such
election to the Agent.
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ARTICLE 3
CONDITIONS TO BORROWING
The obligation of any Bank to make a Loan on the occasion of any
Borrowing is subject to the satisfaction (or waiver in accordance with Section
9.05) of the following conditions:
SECTION 3.01. FIRST BORROWING. In the case of the first Borrowing,
(a) receipt by the Agent of an opinion of each of (i)Xxxx X. Xxxxxxx,
Executive Vice President and Chief Corporate Counsel of the Guarantor,
substantially in the form of Exhibit B hereto, (ii) Xxxxxx, Xxxxxx & Xxxxxxxxx,
special counsel for the Principal Obligors, substantially in the form of Exhibit
C hereto, (iii) Beghin & Xxxxxx in association with Xxxxx & Overy, special
Luxembourg counsel for the Borrower, substantially in the form of Exhibit D
hereto and (iv) Xxxxxxx Xxxxxxxx & Xxxxx, special Bermuda counsel for the
Guarantor, substantially in the form of Exhibit E hereto;
(b) receipt by the Agent of an opinion of Xxxxx Xxxx & Xxxxxxxx, special
counsel for the Agent, substantially in the form of Exhibit F hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(c) receipt by the Agent of all documents the Agent may reasonably
request relating to the existence of the Borrower and the Guarantor, the
corporate authority for and the validity of this Agreement and the Promissory
Notes, and any other matters reasonably determined by the Agent to be relevant
hereto, all in form and substance reasonably satisfactory to the Agent; and
(d) arrangements satisfactory to the Agent shall have been made for the
payment of participation fees for the account of the Banks in the respective
amounts heretofore mutually agreed.
SECTION 3.02. ALL BORROWINGS. In the case of each Borrowing (including
the first Borrowing):
(a) receipt by the Agent of a Notice of Borrowing as required by Section
2.02;
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(c) the fact that the representations and warranties of each Obligor
contained in the Financing Documents (except the representations and warranties
set forth in Section 4.04, which are made only as of the date hereof) shall be
true in all material respects on and as of the date of such Borrowing.
25
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in
subsections (b) and (c) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Principal Obligor represents and warrants to the Agent and the Banks
that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. Each Principal Obligor is a
company duly organized and validly existing under the laws of its jurisdiction
of organization. Each Principal Obligor has all corporate powers and all
governmental licenses, authorizations, consents and approvals (collectively, the
"CONSENTS") required to carry on its business as now conducted, other than those
powers and Consents, the failure of which to be possessed or obtained could not,
based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Principal Obligor of this
Agreement and the Promissory Notes: (a) are within its corporate powers; (b)
have been duly authorized by all necessary corporate action on its part; (c)
require no action by or in respect of, or filing with, any governmental body,
agency or official, in each case, on its part; and (d) do not contravene, or
constitute a default under, any provision of (i) applicable law or regulation,
(ii) its organizational documents, or (iii) any agreement or instrument
evidencing or governing debt of such Principal Obligor or any other material
agreement, judgment, injunction, order, decree or other instrument binding upon
such Principal Obligor.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of such Principal Obligor and the Promissory Notes, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of the Borrower.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated balance sheet
of the Guarantor and its Consolidated Subsidiaries as of September 30, 2001 and
the related consolidated statements of income, of shareholders' equity and of
cash flows for the fiscal year then ended, reported on by PriceWaterhouseCoopers
LLP and set forth in the Guarantor's 2001 Form 10-K, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of the
Guarantor and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such period.
26
(b) Since September 30, 2001 there has been no material adverse condition
or material adverse change in or affecting the business, operations, property or
condition (financial or otherwise) of the Guarantor and its Consolidated
Subsidiaries, considered as a whole.
SECTION 4.05. LITIGATION. Except as disclosed by the Guarantor in its
periodic reports filed from time to time with the Securities and Exchange
Commission, there is no action, suit or proceeding pending against, or to the
knowledge of the Guarantor threatened against or affecting, the Guarantor or any
of its Restricted Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could, based upon the facts and circumstances in
existence at the time this representation and warranty is made or deemed made,
reasonably be expected to have a Material Adverse Effect or which in any manner
draws into question the validity of the Financing Documents.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group
(other than Tyco Capital and its Subsidiaries) has fulfilled its obligations
under the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance, except where the failure to so comply
could not, based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect, with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group (other than Tyco Capital and its Subsidiaries) has (i) sought a
waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any required contribution or
payment to any Plan or Multiemployer Plan, or made any amendment to any Plan,
which has resulted in or could, based upon the facts and circumstances in
existence at the time this representation and warranty is made or deemed made,
reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA (other than a liability to the
PBGC for premiums under Section 4007 of ERISA), which could, based upon the
facts and circumstances existing at the time this representation and warranty is
made or deemed made, reasonably be expected to have a Material Adverse Effect.
SECTION 4.07. ENVIRONMENTAL MATTERS. In the ordinary course of its
business, the Guarantor conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Guarantor
and its Restricted Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility
27
or reduction in the level of or change in the nature of operations conducted
thereat, any costs or liabilities in connection with off-site disposal of wastes
or Hazardous Substances, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of this review, the Guarantor has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, could not, based upon the facts and circumstances existing at the time
this representation and warranty is made or deemed made, reasonably be expected
to have a Material Adverse Effect.
SECTION 4.08. TAXES. The Guarantor and each of its Restricted
Subsidiaries that is a Significant Subsidiary have filed all material tax
returns which are required to be filed by them and have paid all taxes shown on
such returns or pursuant to any assessment received by the Guarantor or any such
Significant Subsidiary, except those assessments which are being contested in
good faith by appropriate proceedings. The charges, accruals and reserves on the
books of the Guarantor and its Restricted Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Guarantor, adequate.
SECTION 4.09. SUBSIDIARIES. Each of the Guarantor's Consolidated
Restricted Subsidiaries is duly organized, validly existing and (to the extent
such concept is applicable to it) in good standing under the laws of its
jurisdiction of organization, except where the failure to be so organized,
existing or in good standing could not, based upon the facts and circumstances
existing at the time this representation and warranty is made or deemed made,
reasonably be expected to have a Material Adverse Effect. Each such Restricted
Subsidiary has all legal powers and all Consents required to carry on its
business as now conducted, other than those powers and Consents, the failure of
which to be possessed or obtained could not, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to have a Material Adverse Effect.
SECTION 4.10. NOT AN INVESTMENT COMPANY. Neither Principal Obligor is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.11. FULL DISCLOSURE. All information heretofore furnished by or
on behalf of the Obligors to the Agent in connection with this Agreement does
not contain any untrue statement of material fact or omit to state any material
fact necessary to make the statements contained herein or therein, in light of
the circumstances under which they were made, not misleading.
SECTION 4.12. OBLIGATIONS TO BE PARI PASSU. The obligations of each
Principal Obligor under this Agreement rank PARI PASSU as to priority of payment
and in all other respects with all other unsecured and unsubordinated
obligations of such Principal Obligor.
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ARTICLE 5
COVENANTS
The Guarantor agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under this Agreement or any Promissory Note
remains unpaid:
SECTION 5.01. INFORMATION. The Guarantor will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the end
of each fiscal year of the Guarantor, a consolidated balance sheet of the
Guarantor and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, of shareholders' equity and
of cash flows for such fiscal year, setting forth, in each case in comparative
form, the figures for the previous fiscal year, such consolidated statements to
be reported on by PriceWaterhouseCoopers LLP or other independent public
accountants of internationally recognized standing in a manner complying with
the applicable rules and regulations promulgated by the Securities and Exchange
Commission;
(b) 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 Guarantor, a
consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as
of the end of such quarter, the related consolidated statements of income for
such quarter, and the related consolidated statements of income and cash flows
for the portion of the Guarantor's fiscal year ended at the end of such quarter,
setting forth in the case of such statements of income and of cash flows in
comparative form the figures for the corresponding quarter (in the case of
consolidated statements of income) and for the corresponding portion of the
Guarantor's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency on behalf of the Guarantor by the chief financial
officer, the chief accounting officer or the treasurer of the Guarantor;
(c) simultaneously with the delivery of each set of financial statements
referred to in subsections (a) and (b) above, a certificate on behalf of the
Guarantor signed by the chief financial officer, the chief accounting officer or
the treasurer of the Guarantor (i) setting forth in reasonable detail the
calculations required to establish whether the Guarantor was in compliance with
the requirements of Sections 5.08, 5.09, 5.10 and 5.13 on the date of such
financial statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth, in reasonable
detail, the nature thereof and the action which the Guarantor is taking or
proposes to take with respect thereto;
(d) within five business days after any Responsible Officer obtains
knowledge of any Default, if such Default is then continuing, a certificate on
29
behalf of the Guarantor signed by the chief financial officer, the chief
accounting officer or the treasurer of the Guarantor setting forth, in
reasonable detail, the nature thereof and the action which the Guarantor is
taking or proposes to take with respect thereto;
(e) promptly following the mailing thereof to the shareholders of the
Guarantor generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all final registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and final reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Guarantor or the Borrower shall have filed with the
Securities and Exchange Commission;
(g) promptly upon any Responsible Officer obtaining knowledge of the
commencement of any action, suit or proceeding before any court, arbitrator or
other governmental body against the Guarantor or any of its Restricted
Subsidiaries that, if adversely determined, could reasonably be expected to have
a Material Adverse Effect, a certificate on behalf of the Guarantor specifying
the nature of such action, suit or proceeding and what action the Guarantor is
taking or proposes to take with respect thereto;
(h) promptly following, and in any event within 10 days of, any change in
a Debt Rating by any Rating Agency, notice thereof; and
(i) from time to time, upon reasonable notice, such additional
information regarding the financial position or business of the Guarantor and
its Restricted Subsidiaries as the Agent, at the request of any Bank, may
reasonably request.
Information required to be delivered pursuant to subsections (a), (b),
(e) or (f) above shall be deemed to have been delivered on the date on which the
Guarantor provides notice to the Banks that such information has been posted on
the Guarantor's website on the Internet at the website address listed on the
signature pages hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website
identified in such notice and accessible by the Banks without charge; PROVIDED
that (i) such notice may be included in a certificate delivered pursuant to
subsection 5.01(c) and (ii) the Guarantor shall deliver paper copies of the
information referred to in subsections (a), (b), (e) or (f) to any Bank which
requests such delivery.
SECTION 5.02. PAYMENT OF OBLIGATIONS. The Guarantor will pay and
discharge, and will cause each Restricted Subsidiary to pay and discharge, at or
before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where (i) any such
failure to so pay or discharge could not, based upon the facts and circumstances
in existence at the
30
time, reasonably be expected to have a Material Adverse Effect or (ii) such
liabilities or obligations may be contested in good faith by appropriate
proceedings. The Guarantor will maintain, and will cause each Restricted
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of such liabilities or
obligations.
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE. (a) Except as permitted
by Section 5.04, the Guarantor will keep, and will cause each Restricted
Subsidiary to keep, all property necessary in its business in good working order
and condition, ordinary wear and tear excepted, unless the failure to so keep
could not, based upon the facts and circumstances existing at the time,
reasonably be expected to have a Material Adverse Effect.
(b) The Guarantor will maintain, and will cause each Restricted
Subsidiary to maintain, with financially sound and reputable insurers, insurance
with respect to its assets and business against such casualties and
contingencies, of such types (including, without limitation, loss or damage,
product liability, business interruption, larceny, embezzlement or other
criminal misappropriation) and in such amounts as is customary in the case of
similarly situated corporations of established reputations engaged in the same
or a similar business, unless the failure to maintain such insurance could not,
based upon the facts and circumstances existing at the time, reasonably be
expected to have a Material Adverse Effect.
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Guarantor (a) will not engage in any business other than the holding of stock
and other investments in its Subsidiaries and activities reasonably related
thereto, (b) will cause each Restricted Subsidiary to engage in business of the
same general type as now conducted by the Guarantor's Restricted Subsidiaries
and reasonably related extensions thereof, and (c) will preserve, renew and keep
in full force and effect, and will cause each Restricted Subsidiary to preserve,
renew and keep in full force and effect (x) their respective legal existence and
(y) their respective rights, privileges and franchises necessary or desirable in
the normal conduct of business, unless in the case of either the failure of the
Guarantor to comply with subclause (c) (y) of this Section 5.04 or the failure
of a Restricted Subsidiary to comply with clause (b) or (c) of this Section
5.04, such failure could not, based upon the facts and circumstances existing at
the time, reasonably be expected to have a Material Adverse Effect; PROVIDED
that nothing in this Section 5.04 shall prohibit (i) the merger or consolidation
of a Restricted Subsidiary (other than the Borrower) with or into the Guarantor
or a Wholly-Owned Consolidated Restricted Subsidiary, (ii) the sale, lease,
transfer, assignment or other disposition by a Restricted Subsidiary (other than
the Borrower) of all or any part of its assets to the Guarantor or to a
Wholly-Owned Consolidated Restricted Subsidiary, (iii) the merger or
consolidation of a Restricted Subsidiary (other than the Borrower) with or into
a Person other than the Guarantor or a Wholly-Owned Consolidated Restricted
Subsidiary, if the Person surviving such consolidation or merger is a
31
Restricted Subsidiary and immediately after giving effect thereto, no Default
shall have occurred and be continuing, (iv) the sale, lease, transfer,
assignment or other disposition by a Restricted Subsidiary (other than the
Borrower) of all or any part of its assets to a Person other than the Guarantor
or a Wholly-Owned Consolidated Restricted Subsidiary, if the Person to which
such sale, lease, transfer, assignment or other disposition is made is a
Restricted Subsidiary and immediately after giving effect thereto, no Guarantor
Default shall have occurred and be continuing, (v) any transaction permitted
pursuant to Section 5.11 or (vi) the termination of the legal existence of any
Restricted Subsidiary (other than the Borrower) if the Guarantor in good faith
determines that such termination is in the best interest of the Guarantor and is
not materially disadvantageous to the Banks.
SECTION 5.05. COMPLIANCE WITH LAWS. The Guarantor will comply, and cause
each Restricted Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except where (a) noncompliance
therewith could not, based upon the facts and circumstances in existence at the
time, reasonably be expected to have a Material Adverse Effect or (b) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS; CONFIDENTIALITY.
(a) The Guarantor will keep, and will cause each Restricted Subsidiary to keep,
proper books of record and account in which true and correct entries shall be
made of its business transactions and activities so that financial statements
that fairly present its business transactions and activities can be properly
prepared in accordance with generally accepted accounting principles.
(b) The Guarantor will permit, and will cause each Restricted Subsidiary
to permit, representatives of any Bank at such Bank's expense to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants, all upon reasonable notice to the Guarantor, at
such reasonable times and as often as may reasonably be requested by any Bank.
(c) Each Bank and the Agent shall, by its receipt of Confidential
Information (as defined below) pursuant to or in connection with this Agreement
or its exercise of any of its rights hereunder, be deemed to have agreed (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to (i) keep such information confidential, (ii) (except as
permitted by clause (iii) of this Section 5.06(c)) not disclose such information
to any Person other than an officer, director, employee, legal counsel,
independent auditor or authorized agent or advisor of the Agent or such Bank
needing to know such information (it being understood that any such officer,
director, employee, legal counsel, independent auditor or authorized agent or
advisor shall be informed by the Agent or such Bank of the confidential nature
of such information), (iii) not
32
disclose such information to any Assignee or Participant (or prospective
Assignee or Participant), unless such Assignee or Participant (or prospective
Assignee or Participant) shall agree in writing to be bound by the provisions of
this Section 5.06(c) and (iv) not use any such information except for purposes
relating to this Agreement or the Notes. The term "CONFIDENTIAL INFORMATION"
shall mean non-public information furnished by or on behalf of the Guarantor or
any of its Restricted Subsidiaries to the Agent, any Bank or other Person
exercising rights hereunder or required to be bound hereby (collectively
"RECIPIENTS"), but shall not include any such information which (1) has become
or hereafter becomes available to the public other than as a result of a
disclosure by a Recipient, or (2) has become or hereafter becomes available to a
Recipient, on a non-confidential basis, from a source other than the Guarantor
or any of its Restricted Subsidiaries (or any of their respective
representatives or agents) or any Recipient, which source, to the knowledge of
the Recipient, is not prohibited from disclosing such information by a
confidentiality agreement with, or other legal or fiduciary obligation to, the
Guarantor or its Restricted Subsidiaries.
The restrictions set forth in the immediately preceding paragraph shall
not prevent the disclosure by a Recipient of any such information:
(A) with the prior written consent of the Guarantor,
(B) at the request of a bank regulatory agency or in connection
with an examination by bank examiners,
(C) to a Bank Affiliate, or
(D) upon order of any court or administrative agency of competent
jurisdiction, to the extent required by such order and not effectively
stayed on appeal or otherwise, or as otherwise required by law; PROVIDED
that in the case of any intended disclosure under this clause (D), the
Recipient shall (unless otherwise required by applicable law) give the
Guarantor not less than five business days prior notice (or such shorter
period as may, in the good faith discretion of the Recipient, be
reasonable under the circumstances or may be required by any court or
agency under the circumstances), specifying the Confidential Information
involved and stating such Recipient's intention to disclose such
Confidential Information (including the manner and extent of such
disclosure) in order to allow the Guarantor an opportunity to seek an
appropriate protective order.
Each Recipient shall agree that, in addition to all other remedies
available, the Guarantor shall be entitled to specific performance and
injunctive and other equitable relief as a remedy for any breach of this Section
5.06(c) by such Recipient.
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SECTION 5.07. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS AND
OTHER DISTRIBUTIONS. The Guarantor will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its capital stock or any other interest or participation in its profits, owned
by the Guarantor or any Restricted Subsidiary, or pay any Debt owed to the
Guarantor or any Restricted Subsidiary, (b) make loans or advances to the
Guarantor or any Restricted Subsidiary or (c) transfer any of its properties or
assets to the Guarantor or any Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of
(i) applicable law, agreements with foreign governments with
respect to assets located in their jurisdiction, or condemnation or
eminent domain proceedings,
(ii) any of the Financing Documents,
(iii) (A)customary provisions restricting subletting or assignment
of any lease governing a leasehold interest of the Guarantor or a
Restricted Subsidiary, or (B) customary restrictions imposed on the
transfer of copyrighted or patented materials or provisions in agreements
that restrict the assignment of such agreements or any rights thereunder,
(iv) provisions contained in the instruments evidencing or
governing Debt or other obligations or agreements, in each case existing
on February 7, 2001,
(v) provisions contained in documents evidencing or governing any
Permitted Receivables Transaction,
(vi) provisions contained in instruments evidencing or governing
Debt or other obligations or agreements of any Person, in each case, at
the time such Person (A) shall be merged or consolidated with or into the
Guarantor or any Restricted Subsidiary, (B) shall sell, transfer, assign,
lease or otherwise dispose of all or substantially all of such Person's
assets to the Guarantor or a Restricted Subsidiary, or (C) otherwise
becomes a Restricted Subsidiary, PROVIDED that in the case of clause (A),
(B) or (C), such Debt, obligation or agreement was not incurred or
entered into, or any such provisions adopted, in contemplation of such
transaction,
(vii) provisions contained in instruments amending, restating,
supplementing, extending, renewing, refunding, refinancing, replacing or
otherwise modifying, in whole or in part (collectively, "REFINANCING"),
instruments referred to in clauses (ii), (iv) and (vi) of this Section
5.07, so long as such provisions are, in the good faith determination of
the
34
Guarantor's board of directors, not materially more restrictive than
those contained in the respective instruments so Refinanced,
(viii) provisions contained in any instrument evidencing or
governing Debt or other obligations of a Subsidiary Guarantor,
(ix) any encumbrances and restrictions with respect to a
Restricted Subsidiary imposed in connection with an agreement which has
been entered into for the sale or disposition of such Restricted
Subsidiary or its assets, PROVIDED such sale or disposition otherwise
complies with this Agreement,
(x) the subordination (pursuant to its terms) in right and
priority of payment of any Debt owed by any Restricted Subsidiary (the
"INDEBTED SUBSIDIARY") to the Guarantor or any other Restricted
Subsidiary, to any other Debt of such Indebted Subsidiary, PROVIDED (A)
such Debt is permitted under this Agreement and (B) the Guarantor's board
of directors has determined, in good faith, at the time of the creation
of such encumbrance or restriction, that such encumbrance or restriction
could not, based upon the facts and circumstances in existence at the
time, reasonably be expected to have a Material Adverse Effect,
(xi) provisions governing preferred stock issued by a Restricted
Subsidiary, PROVIDED that such preferred stock is permitted under Section
5.08, and
(xii) provisions contained in debt instruments, obligations or
other agreements of any Restricted Subsidiary which are not otherwise
permitted pursuant to clauses (i) through (xi) of this Section 5.07,
PROVIDED that the aggregate investment of the Guarantor in all such
Restricted Subsidiaries (determined in accordance with generally accepted
accounting principles) shall at no time exceed the greater of (a)
$300,000,000 or (b) 3% of Consolidated Tangible Assets.
The provisions of this Section 5.07 shall not prohibit (x) Liens not
prohibited by Section 5.10 or (y) restrictions on the sale or other disposition
of any property securing Debt of any Restricted Subsidiary, provided such Debt
is otherwise permitted by this Agreement.
SECTION 5.08. DEBT. Consolidated Debt will at no time exceed 52.5% of
Consolidated Total Capitalization. The total Debt of all Consolidated Restricted
Subsidiaries (excluding (i) Debt of a Consolidated Restricted Subsidiary owed to
the Borrower, to the Guarantor or to a Wholly-Owned Consolidated Restricted
Subsidiary, (ii) Debt of the Borrower or a Subsidiary Guarantor, (iii) Permitted
Acquired Debt, (iv) Existing Tyco US Debt and (v) Permitted Nonrecourse Debt)
will at no time exceed in aggregate outstanding principal amount 5% of the
Consolidated Tangible Assets. For purposes of this Section any preferred stock
of
35
a Consolidated Restricted Subsidiary held by a Person other than the Guarantor
or a Wholly-Owned Consolidated Restricted Subsidiary shall be included, at the
higher of its voluntary or involuntary liquidation value, in "Consolidated Debt"
and in the "Debt" of such Consolidated Restricted Subsidiary.
SECTION 5.09. FIXED CHARGE COVERAGE. The ratio of Consolidated EBIT to
Consolidated Interest Expense will not, for any period of four consecutive
fiscal quarters, be less than 2.5 to 1.
SECTION 5.10. NEGATIVE PLEDGE. The Guarantor will not, and will not
permit any Restricted Subsidiary to, create, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it, except:
(a) any Lien existing on any asset on the date hereof securing Debt
outstanding on such date;
(b) any Lien existing on any asset of, or capital stock of, or other
ownership interest in, any Person (such capital stock and other ownership
interests are collectively referred to herein as "STOCK") at the time such
Person becomes a Restricted Subsidiary, which Lien was not created in
contemplation of such event;
(c) any Lien on any asset securing the payment of all or part of the
purchase price of such asset upon the acquisition thereof by the Guarantor or a
Restricted Subsidiary or securing Debt (including any obligation as lessee
incurred under a capital lease) incurred or assumed by the Guarantor or a
Restricted Subsidiary prior to, at the time of or within one year after such
acquisition (or in the case of real property, the completion of construction
(including any improvements on an existing property) or the commencement of full
operation of such asset or property, whichever is later), which Debt is incurred
or assumed for the purpose of financing all or part of the cost of acquiring
such asset or, in the case of real property, construction or improvements
thereon; PROVIDED, that in the case of any such acquisition, construction or
improvement, the Lien shall not apply to any asset theretofore owned by the
Guarantor or a Restricted Subsidiary, other than assets so acquired, constructed
or improved;
(d) any Lien existing on any asset or Stock of any Person at the time
such Person is merged or consolidated with or into the Guarantor or a Restricted
Subsidiary which Lien was not created in contemplation of such event;
(e) any Lien existing on any asset or Stock of any Person at the time of
acquisition thereof by the Guarantor or a Restricted Subsidiary, which Lien was
not created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing of any Debt secured by any
Lien permitted by any of the subsections (a) through (e) of this Section 5.10,
36
PROVIDED the principal amount of Debt is not increased and is not secured by any
additional assets, except as provided in the last sentence of this Section 5.10;
(g) any Lien to secure Permitted Nonrecourse Debt;
(h) any Lien to secure Debt of a Restricted Subsidiary to the Guarantor
or to a Wholly-Owned Consolidated Restricted Subsidiary;
(i) any Lien created pursuant to a Permitted Receivables Transaction;
(j) any Lien in favor of any country (or any department, agency,
instrumentality or political subdivision of any country) securing obligations
arising in connection with partial, progress, advance or other payments pursuant
to any contract, statute, rule or regulation or securing obligations incurred
for the purpose of financing all or any part of the purchase price (including
the cost of installation thereof or, in the case of real property, the cost of
construction or improvement or installation of personal property thereon) of the
asset subject to such Lien (including, but not limited to, any Lien incurred in
connection with pollution control, industrial revenue or similar financings);
(k) Liens arising in the ordinary course of its business which (i) do not
secure Debt, (ii) do not secure any single obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its
business; and
(l) Liens not otherwise permitted by the foregoing clauses (a) through
(k) of this Section 5.10 securing Debt (without duplication) in an aggregate
principal amount at any time outstanding not to exceed an amount equal to the
greater of (i) $300,000,000 or (ii) 3% of Consolidated Tangible Assets.
It is understood that any Lien permitted to exist on any asset pursuant to the
foregoing provisions of this Section 5.10 may attach to the proceeds of such
asset and, with respect to Liens permitted pursuant to subsections (a), (b),
(d), (e), (f) (but only with respect to the refinancing of a Debt secured by a
Lien permitted pursuant to subsections (a), (b), (d) or (e)) of this Section
5.10, may attach to an asset acquired in the ordinary course of business as a
replacement of such former asset.
SECTION 5.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a) Neither
Principal Obligor will (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer all or substantially all of its assets to
any other Person, unless
(A) such Principal Obligor or one of its Restricted
Subsidiaries is the surviving corporation;
(B) the Person (if other than such Principal Obligor)
formed by such consolidation or into which such Principal
37
Obligor is merged, or the Person which acquires by sale or other
transfer, or which leases, all or substantially all of the assets
of such Principal Obligor (any such Person, the "SUCCESSOR"),
shall be organized and existing under the laws of (x) in the case
of a Successor to the Borrower, Luxembourg or (y) in the case of a
Successor to the Guarantor, Bermuda or of the United States, any
state thereof or the District of Columbia and shall expressly
assume, in a writing executed and delivered to the Agent for
delivery to each of the Banks, in form reasonably satisfactory to
the Agent, the due and punctual payment of the principal of and
interest on the Loans and the performance of the other obligations
under this Agreement and the Promissory Notes on the part of such
Principal Obligor to be performed or observed, as fully as if such
Successor were originally named as such Principal Obligor in this
Agreement;
(C) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(D) such Principal Obligor has delivered to the Agent a
certificate on behalf of such Principal Obligor signed by one of
its Responsible Officers and an opinion of counsel, each stating
that all conditions provided in this Section 5.11 relating to such
transaction have been satisfied.
The foregoing provisions of this Section 5.11 shall not restrict the
merger or consolidation of any Restricted Subsidiary with and into a Principal
Obligor.
Upon the satisfaction (or waiver in accordance with Section 9.05) of the
conditions set forth in this Section 5.11, a Successor to the Borrower shall
succeed, and may exercise every right and power of, the Borrower under this
Agreement and the Promissory Notes with the same effect as if such Successor had
been originally named as the Borrower herein and in the Promissory Notes, and
the Borrower shall be relieved of its obligations under this Agreement and the
Promissory Notes.
(b) The Guarantor will not, and will not permit any Restricted Subsidiary
to, sell, lease or otherwise transfer, in any transaction or series of related
transactions, to any Person (other than the Guarantor or a Restricted
Subsidiary) any Property (including, without limitation, the stock of any
Restricted Subsidiary) having a net book value in excess of 20% of Consolidated
Assets determined as of the end of the fiscal quarter of the Guarantor most
recently ended at the time of such sale or other transaction, or Property
(including without limitation, stock of a Restricted Subsidiary) which
contributed in excess of 20% of Consolidated EBIT for the fiscal year of the
Guarantor most recently ended at the time of such sale or other transaction.
38
SECTION 5.12. TRANSACTIONS WITH AFFILIATES. The Guarantor will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, pay any
funds to or for the account of, make any investment (whether by acquisition of
stock or indebtedness, by loan, advance, transfer of property, guarantee or
other agreement to pay, purchase or service, directly or indirectly, any Debt,
or otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any
Affiliate (collectively, "AFFILIATE Transactions"); PROVIDED, HOWEVER, that the
foregoing provisions of this Section 5.12 shall not prohibit the Guarantor or
any of its Restricted Subsidiaries from (a) making Restricted Payments
(including, for this purpose, transactions expressly excluded from the
definition of a Restricted Payment) permitted by Section 5.13, (b) making sales
to or purchases from any Affiliate and, in connection therewith, extending
credit or making payments, or from making payments for services rendered by any
Affiliate, if such sales or purchases are made or such services are rendered in
the ordinary course of business and on terms and conditions at least as
favorable to the Guarantor or such Restricted Subsidiary as the terms and
conditions which the Guarantor would reasonably expect to be obtained in a
similar transaction with a Person which is not an Affiliate at such time, (c)
making payments of principal, interest and premium on any Debt of the Guarantor
or such Restricted Subsidiary held by an Affiliate if the terms of such Debt are
at least as favorable to the Guarantor or such Restricted Subsidiary as the
terms which the Guarantor would reasonably expect to have been obtained at the
time of the creation of such Debt from a lender which was not an Affiliate, (d)
participating in, or effecting any transaction in connection with, any joint
enterprise or other joint arrangement with any Affiliate if the Guarantor or
such Restricted Subsidiary participates in the ordinary course of its business
and on a basis no less advantageous than the basis on which such Affiliate
participates, (e) paying or granting reasonable compensation and benefits to any
director, officer, employee or agent of the Guarantor or any Restricted
Subsidiary, (f) paying reasonable legal fees and expenses to a law firm of which
an Affiliate is a member or (g) engaging in any Affiliate Transaction not
otherwise addressed in subsections (a) - (f) of this Section 5.12, the terms of
which are not less favorable to the Guarantor or such Restricted Subsidiary than
those that the Guarantor would reasonably expect to be obtained in a comparable
transaction at such time with a Person which is not an Affiliate.
SECTION 5.13. RESTRICTED PAYMENTS. The Guarantor will not, and will not
permit any Restricted Subsidiary to, declare or make any Restricted Payment
unless, after giving effect thereto, the aggregate of all Restricted Payments
declared or made subsequent to September 30, 2001 does not exceed an amount
equal to the sum of (a) $10,250,000,000 PLUS (b) 50% of Consolidated Net Income
(or minus 100% of Consolidated Net Income, in the event of a net loss for such
period) for the period from October 1, 2001 through the end of the then most
recently ended fiscal quarter of the Guarantor (treated for this purpose as a
single accounting period), PLUS (c) the aggregate cash proceeds (net of
underwriting commissions) received by the Guarantor (other than from a
Restricted Subsidiary)
39
from the issuance or sale after September 30, 2001 of capital stock or Stock
Equivalents of the Guarantor (other than the proceeds of any capital stock or
Stock Equivalent which by its terms is subject to redemption otherwise than at
the sole option of the Guarantor). Nothing in this Section 5.13 shall prohibit
the payment of any dividend or distribution within 60 days after the declaration
thereof if such declaration was not prohibited by this Section 5.13.
SECTION 5.14. SUBSIDIARY GUARANTORS. If any Restricted Subsidiary becomes
a guarantor of TycoLux Debt Securities under the Indenture, the Guarantor will
cause such Person to become a Subsidiary Guarantor concurrently therewith.
SECTION 5.15. USE OF PROCEEDS. The proceeds of the Loans made under this
Agreement will be used by the Borrower for its general corporate purposes. None
of such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U.
SECTION 5.16. MOST FAVORED LENDER. If the Borrower and the Guarantor
agree to any amendment, waiver, consent, modification, refunding, refinancing or
replacement of either Existing Credit Agreement with terms the effect of which
is to (i) include a covenant in favor of the banks party thereto that is not
imposed in favor of the Banks by this Agreement or (ii) revise or alter any
covenant contained therein the effect of which is to impose a covenant in favor
of the banks party thereto that is not imposed in favor of the Banks by this
Agreement, this Agreement shall automatically and without further action by the
parties hereto be amended to incorporate herein the terms of such covenant.
Without limiting the effect of the immediately preceding sentence, promptly upon
any such amendment, the Borrower shall execute and deliver such confirmatory
documentation as the Agent may reasonably request to evidence such amendment.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULTS. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing and shall not have
been waived in accordance with Section 9.05:
(a) any principal of any Loan shall not be paid when due, or any interest
on any Loan or any fees payable hereunder shall not be paid within three
Domestic Business Days of the due date thereof;
(b) the Guarantor shall fail to observe or perform any covenant contained
in Section 5.08, 5.09, 5.13 or 5.14;
40
(c) the Guarantor shall fail to observe or perform any covenant contained
in Section 5.07 or Sections 5.10 to 5.12, inclusive, and such failure shall not
be remedied within five days after any Responsible Officer obtains actual
knowledge thereof;
(d) either Principal Obligor shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a), (b) or (c) of this Section 6.01) for 10 days after notice thereof
has been given to the Guarantor by the Agent at the request of any Bank;
(e) any representation, warranty, certification or statement made in
writing by any Obligor in the Financing Documents or in any certificate,
financial statement or other document required to be delivered to the Agent or
any of the Banks pursuant to the Financing Documents shall prove to have been
incorrect in any material respect when made (or deemed made);
(f) the Guarantor or any Subsidiary shall fail to make any payment in
respect of any Material Debt when due (after giving effect to any applicable
grace period);
(g) any event or condition shall occur that results in the acceleration
of the maturity of any Material Debt;
(h) (i) any corporate action is taken authorizing the winding up,
liquidation, any arrangement or the taking of any other similar action of or
with respect to the Guarantor or authorizing any corporate action to be taken to
facilitate any such winding up, liquidation, arrangement, reorganization or
amalgamation or other similar action or any members' voluntary winding up of the
Guarantor as provided under the Bermuda Companies Law shall be commenced;
(ii) (A) any petition shall be filed seeking the liquidation, any
arrangement or the taking of any other similar action of or with respect
to the Guarantor by the Registrar of Companies in Bermuda, or by any
other Person or Persons, or (B) any petition shall be presented for the
winding up of the Guarantor to a court of Bermuda as provided with the
Bermuda Companies Law, or (C) any creditors' winding up of the Guarantor
as provided under the Bermuda Companies Law shall be commenced, or (D)
any receiver shall be appointed by a creditor of the Guarantor or by a
court of Bermuda on the application of a creditor of the Guarantor as
provided under any instrument giving rights for the appointment of a
receiver thereto, and in the case of any such petition, winding up,
appointment, order or other matter, such petition, winding up,
appointment, order or other matter, shall remain undismissed and unstayed
for a period of 60 days;
41
(iii) the Guarantor or any Significant Subsidiary shall (A)
commence a voluntary case or other proceeding seeking liquidation,
winding up, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or substantially
all of its property, or (B) consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other similar proceeding commenced against it, or (C)
make a general assignment for the benefit of creditors, or (D) fail
generally to pay its debts as they become due, or (E) take any corporate
action to authorize any of the foregoing; or
(iv) (A)an involuntary case or other proceeding shall be commenced
against the Guarantor or any Significant Subsidiary seeking liquidation,
winding up, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or substantially
all of its property, and such involuntary case or other proceeding shall
remain in effect and undismissed and unstayed for a period of 60 days; or
(B) an order for relief shall be entered against the Guarantor or any
Significant Subsidiary under the bankruptcy laws of any jurisdiction as
now or hereafter in effect;
(i) a judgment or order for the payment of money in excess of $30,000,000
(after deducting amounts covered by insurance, except to the extent that the
insurer providing such insurance has declined such coverage) shall be rendered
against the Guarantor or any Subsidiary and, within 60 days after entry thereof,
such judgment or order is not discharged or execution thereof stayed pending
appeal, or within 60 days after the expiration of any such stay, such judgment
or order is not discharged;
(j) any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 40% or more of the
outstanding shares of common stock of the Guarantor; or, on the last day of any
period of twelve consecutive calendar months, a majority of members of the board
of directors of the Guarantor shall no longer be composed of individuals (i) who
were members of said board of directors on the first day of such twelve
consecutive calendar month period or (ii) whose election or nomination to said
board of directors was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
said board of directors;
42
(k) the Guarantor or any Subsidiary shall fail to make any payment owing
by it in respect of any performance bond, performance guaranty or bank guaranty
issued in lieu of a performance bond or performance guaranty (other than a
payment which is disputed by the Guarantor or such Subsidiary in good faith),
and the aggregate of all such defaulted payments shall exceed $50,000,000 at any
one time for the Guarantor and its Subsidiaries;
(l) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $5,000,000 which it shall have become liable to
pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $25,000,000;
(m) the Borrower shall cease to be a Wholly-Owned Consolidated Subsidiary
of the Guarantor; or
(n) any Financing Document shall cease to be valid and enforceable
against any Obligor party thereto (except for the termination of a Subsidiary
Guarantee in accordance with its terms); or any Obligor shall so assert in
writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
at least 66 2/3% in aggregate amount of the Commitments, by notice to the
Borrower terminate the Commitments and they shall thereupon terminate, and (ii)
if requested by Banks holding at least 66 2/3% in aggregate unpaid principal
amount of the Loans, by notice to the Borrower declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Obligors; PROVIDED that in
the case of any of the Events of Default specified in subsection (h) above with
respect to any Obligor, without any notice to any Obligor or any other act by
the Agent or the Banks, the Commitments shall thereupon terminate and the Loans
(together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Obligors.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to the
Guarantor under Section 6.01(d) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
43
ARTICLE 7
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Financing Documents as are delegated to the
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. JPMorgan Chase Bank (and any
successor acting as Agent) in its capacity as a Bank hereunder shall have the
same rights and powers under the Financing Documents as any other Bank and may
exercise or refrain from exercising the same as though it were not the Agent,
and JPMorgan Chase Bank (and any successor acting as Agent) and its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of the Borrower as if
it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent under the
Financing Documents are only those expressly set forth therein. Without limiting
the generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 7.05. LIMITS OF LIABILITY. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks (or such different
number of Banks as any provision hereof expressly requires for such consent or
request) or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower or any Guarantor; (iii) the satisfaction of any
condition specified in Article 3, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Subsidiary Guarantees, the Promissory Notes or any other
instrument or writing furnished in connection herewith. The Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it in good faith to be genuine or to be signed by or on behalf
44
of the proper party or parties. Without limiting the generality of the
foregoing, the use of the term "agent" in this Agreement with reference to the
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with the Financing Documents or
any action taken or omitted by such indemnitees thereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Borrower and its Subsidiaries and its own decision to
enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent, subject to the
consent of the Borrower if no Event of Default exists. If no successor Agent
shall have been so appointed by the Required Banks and consented to by the
Borrower and shall have accepted such appointment within 45 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Financing
Documents. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was acting as the Agent.
SECTION 7.09. AGENT'S FEE. The Borrower shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon in
writing between the Borrower and the Agent.
45
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.
If on or prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a) the Agent determines that deposits in the relevant currency (in the
applicable amounts) are not being offered to the Reference Banks in the relevant
market for such Interest Period, or
(b) in the case of Euro-Dollar Loans, Banks holding 50% or more of the
aggregate amount of the affected Loans advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding their Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon, until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist (which the Agent agrees to do promptly
upon such circumstances ceasing to exist), (i) the obligations of the Banks to
make Euro-Dollar Loans, or to continue or convert outstanding Loans as or into
Euro-Dollar Loans, shall be suspended and (ii) each outstanding Euro-Dollar Loan
shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Agent at
least one Domestic Business Day before the date of any Euro-Dollar Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing in an equal amount.
SECTION 8.02. ILLEGALITY. If, on or after the date of this Agreement, any
Bank has determined in its reasonable judgment that the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency,
shall make it unlawful or impossible for such Bank (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice specifying the
circumstances giving rise to such suspension to the other Banks and the
Borrower, whereupon, until such Bank notifies the Borrower and the Agent that
the circumstances giving rise to such suspension no longer exist (which such
Bank agrees to do promptly upon such circumstances ceasing to exist), the
obligation of such Bank to make Euro-Dollar Loans, or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar
46
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank in the good faith exercise of its
discretion, be otherwise disadvantageous to such Bank. If such notice is given,
each Euro-Dollar Loan of such Bank then outstanding shall be converted to a Base
Rate Loan either (a) on the last day of the then current Interest Period
applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such day or (b) immediately
if such Bank shall determine that it may not lawfully continue to maintain and
fund such Loan as a Euro-Dollar Loan to such day.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after the
date of this Agreement, any Bank has determined in its reasonable judgment that
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement with respect to which such Bank is
entitled to compensation during the relevant Interest Period under Section 2.14
or 2.19), special deposit, insurance assessment or similar requirement against
assets of, deposits with or for the account of, or credit extended by, such Bank
(or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the London interbank market any other condition
affecting its Euro-Dollar Loans, its Promissory Note or its obligation to make
Euro-Dollar Loans and the result of any of the foregoing is to increase the cost
to such Bank (or its Applicable Lending Office) of making or maintaining any
Euro-Dollar Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or under its
Promissory Note with respect thereto, by an amount deemed by such Bank to be
material to such Bank, then, within 15 days after written demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after the date of this
Agreement, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including any determination by any such authority, central
bank or comparable agency that, for purposes of capital adequacy requirements,
the Commitments hereunder do not constitute commitments with an original
47
maturity of one year or less), has or would have the effect of reducing the rate
of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after written demand by such Bank (with a copy to the Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date of this Agreement,
which will entitle such Bank to compensation pursuant to this Section; PROVIDED
that (i) if any Bank fails to give such notice within 90 days after it obtains
actual knowledge of such an event, such Bank shall only be entitled to payment
under this Section 8.03 for costs incurred from and after the date 90 days prior
to the date that such Bank does give such notice and (ii) each such Bank will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank in the good faith exercise of its discretion, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth in reasonable detail the additional amount
or amounts to be paid to it hereunder and the basis used to determine such
amounts shall be conclusive in the absence of manifest error. In determining
such amount, such Bank will use reasonable averaging and attribution methods and
will have a reasonable basis for any assumptions it makes in connection
therewith.
SECTION 8.04. TAXES. (a) Any and all payments by any Obligor to or for
the account of any Bank or the Agent hereunder or under any Promissory Note
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, EXCLUDING, in the case of each Bank and
the Agent, taxes imposed on or measured by its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on or measured by its income, and
franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as its "TAXES", and all such
excluded taxes being hereinafter referred to as its "DOMESTIC TAXES"). If an
Obligor shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Promissory Note to any Bank or the Agent, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04 such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Obligor shall make such
48
deductions, (iii) such Obligor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law
and (iv) such Obligor shall furnish to the Agent, at its address referred to in
Section 9.01, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any
Promissory Note or from the execution or delivery of, or otherwise with respect
to, this Agreement or any other Financing Document (hereinafter referred to as
"OTHER TAXES").
(c) The Borrower agrees to indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. In addition, the Borrower agrees to indemnify the Agent and
each Bank for all Domestic Taxes and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
to the extent that such Domestic Taxes result from any payment or
indemnification pursuant to this Section for (i) Taxes or Other Taxes imposed by
any jurisdiction other than the United States or (ii) Domestic Taxes of the
Agent or such Bank, as the case may be. This indemnification shall be made
within 15 days from the date such Bank or the Agent (as the case may be) makes
demand therefor.
(d) At the times indicated herein, each Bank organized under the laws of
a jurisdiction outside the United States shall provide the Borrower with
Internal Revenue Service form W-8BEN or W-8ECI (in each case accompanied by any
statements which may be required under applicable Treasury regulations), as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to receive payments under this Agreement
(i) without deduction or withholding of any United States federal income taxes
or (ii) subject to a reduced rate of United States federal withholding tax,
unless, in each case of clause (i) and (ii) of this Section 8.04(d), an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders such forms inapplicable or which would prevent the Bank
from duly completing and delivering any such form with respect to it and the
Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of such taxes. Such forms shall be
provided (x) on or prior to the date of the Bank's execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof,
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and (y) on or before the date that such form expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent form
so delivered by the Bank. If the form provided by a Bank at the time such Bank
first becomes a party to this Agreement
49
indicates a United States interest withholding tax rate in excess of zero,
United States withholding tax at such rate shall be considered excluded from
"Taxes" as defined in Section 8.04(a). In addition, to the extent that for
reasons other than a change of treaty, law or regulation any Bank becomes
subject to an increased rate of United States interest withholding tax while it
is a party to this Agreement, United States withholding tax at such increased
rate shall be considered excluded from "Taxes" as defined in Section 8.04(a).
(e) For any period with respect to which a Bank has failed to provide the
Borrower with the appropriate form in accordance with Section 8.04(d) (unless
such failure is excused by the terms of Section 8.04(d)), such Bank shall not be
entitled to indemnification under Section 8.04(a) or 8.04(c) with respect to
Taxes imposed by the United States; PROVIDED, HOWEVER, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.04, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank in the good faith exercise of its discretion, is not
otherwise disadvantageous to such Bank.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR LOANS.
If (i) the obligation of any Bank to make, or to continue or convert outstanding
Loans as or to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04 with respect
to its Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Agent, have elected that
the provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist (which such Bank agrees to
do promptly upon such circumstances ceasing to exist), all Loans which would
otherwise be made by such Bank as (or continued as or converted to) Euro-Dollar
Loans shall instead be Base Rate Loans on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other Banks.
If such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the first
day of the next succeeding Interest Period applicable to the related Euro-Dollar
Loans of the other Banks.
SECTION 8.06. SUBSTITUTION OF BANK. If any Bank (i) has demanded
compensation for increased costs pursuant to Section 8.03 or 8.04 or is entitled
to payments under Section 8.04(a) or (ii) has determined that the making or
50
maintaining of any Euro-Dollar Loan has become unlawful or impossible pursuant
to Section 8.02 and similar additional interest or compensation has not been
demanded by, or a similar determination has not been made by, all of the Banks,
the Borrower shall have the right (with the assistance of the Agent) to
designate an Assignee which is not an Affiliate of the Borrower to purchase for
cash, pursuant to an Assignment and Assumption Agreement in substantially the
form of Exhibit G hereto, the outstanding Loans and Commitment of such Bank and
to assume all of such Bank's other rights and obligations hereunder without
recourse to or warranty by, or expense to, such Bank, for a purchase price equal
to (A) the principal amount of all of such Bank's outstanding Loans plus (B) any
accrued but unpaid interest thereon plus (C) the accrued but unpaid fees in
respect of that Bank's Commitment hereunder plus (D) such amount, if any, as
would be payable pursuant to Section 2.12 if the outstanding Loans of such Bank
were prepaid in their entirety on the date of consummation of such assignment
plus (E) any other amounts due and payable to such Bank hereunder.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other communications to
any party provided for hereunder shall be in writing (including, without
limitation, bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower, the Guarantor or
the Agent, at its address or facsimile or telex number set forth on the
signature pages hereof, (y) in the case of any Bank, at its address or facsimile
or telex number set forth in its Administrative Questionnaire or (z) in the case
of any party, such other address or facsimile or telex number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile,
when such facsimile is transmitted to the facsimile number specified in this
Section 9.01 and electronic, telephonic or other appropriate confirmation of
receipt is received by the sender, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Agent under
Article 2 or Article 8 shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any other Financing
Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein and
therein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
51
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Agent, in connection with the
preparation and administration of the Financing Documents, any waiver or consent
hereunder or any amendment thereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent and each Bank, including reasonable fees and disbursements
of counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective Bank Affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses, including, without limitation, the reasonable fees and disbursements
of counsel, which may be incurred by such Indemnitee (whether or not such
Indemnitee shall be designated a party thereto) arising out of any
investigative, administrative or judicial proceeding (brought or threatened)
relating to or arising out of the Financing Documents, the arrangement,
administration, performance or enforcement thereof or any actual or proposed use
of proceeds of Loans hereunder; PROVIDED that no Indemnitee shall have the right
to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction; PROVIDED
FURTHER that no Indemnitee shall have the right to be indemnified hereunder in
connection with any proceedings between it and another Indemnitee which does not
relate to the Borrower.
(c) If any proceeding or claim shall be brought or asserted against any
Indemnitee in respect of which indemnity may be sought pursuant to the preceding
subsection, such Indemnitee shall promptly notify the Borrower. The Borrower
shall not be liable for any costs or expenses in connection with any settlement
entered into without its consent (such consent not to be unreasonably withheld).
SECTION 9.04. SHARING OF SET-OFFS. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Loan held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Loan held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
held by the other Banks, and such other adjustments shall be made, as may be
required, so that all such payments of principal and interest with respect to
the Loans held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of
52
indebtedness of the Obligors other than indebtedness under the Financing
Documents.
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision of this Agreement or
the Promissory Notes may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower, the Guarantor and the
Required Banks (and, if the rights or duties of the Agent are affected thereby,
by the Agent); PROVIDED that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for termination of
any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) release the Guarantor
from its obligations under Article 10; provided FURTHER that the operation of
Section 5.16 and the last paragraph of the Pricing Schedule is not subject to
this Section 9.05.
SECTION 9.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Obligors under the Financing Documents including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; PROVIDED that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.05 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement and subject to subsections (e),
(f) and (g) below, be entitled to the benefits of Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection 9.06(c) or 9.06(d) below shall
53
be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part (in an amount
equivalent to an original Commitment of not less than $10,000,000) of all, of
its rights and obligations under this Agreement and its Promissory Note, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto (an "ASSIGNMENT AND ASSUMPTION AGREEMENT") executed by such Assignee and
such transferor Bank, with (and subject to) the subscribed consent of the Agent
and (so long as at the time no Event of Default exists) the Borrower, which
consents shall not be unreasonably withheld; PROVIDED that if an Assignee is
another Bank, an affiliate of such transferor Bank or an Approved Fund, no such
consent shall be required. Upon execution and delivery of such instrument and
payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Promissory Note is issued
to the Assignee. In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Promissory Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Notwithstanding anything to the contrary contained in this Section
9.06, but subject to the terms and conditions set forth in this subsection (f),
any Bank may from time to time, elect to designate a Conduit to provide all or
any part of Loans required to be made by such Bank to the Borrower pursuant to
this
54
Agreement or to acquire a participation interest in any Loans extended by such
Bank hereunder (a "CONDUIT DESIGNATION"), PROVIDED the designation of a Conduit
by any Bank for purposes of this Section 9.06(f) shall be subject to the
approval of the Borrower, which shall not be unreasonably withheld. No
additional Note shall be required with regard to a Conduit Designation;
PROVIDED, HOWEVER, to the extent any Conduit shall advance funds under a Conduit
Designation, the designating Bank shall be deemed to hold the Note in its
possession as an agent for such Conduit to the extent of the Loan funded by such
Conduit. Notwithstanding any such Conduit Designation, (x) the designating Bank
shall remain solely responsible to the other parties hereto for its obligations
under this Agreement and (y) the Borrower and the Agent may continue to deal
solely and directly with the designating Bank as administrative agent for such
designating Bank's Conduit, in connection with all of such Conduit's rights and
obligations under this Agreement, unless and until the Borrower and the Agent
are notified that the designating Bank has been replaced as administrative agent
for its Conduit; any payments for the benefit of any designating Bank and its
Conduit shall be paid to such designating Bank for itself as administrative
agent for its Conduit, as applicable; PROVIDED neither the Borrower nor the
Agent shall be responsible for any designating Bank's application of any such
payments. In addition, any Conduit may (i) with notice to, but without the prior
written consent of the Borrower and the Agent, and without paying any processing
fee therefor, assign all or portions of its interest in any Loans to the Bank
that designated such Conduit or to any financial institutions consented to by
the Borrower and the Agent providing liquidity and/or credit facilities to or
for the account of such Conduit to support the funding or maintenance of Loans
and (ii) disclose on a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or provider of any
guarantee, surety, credit or liquidity enhancement to such Conduit.
(g) Each party to this Agreement hereby agrees that, at any time a
Conduit Designation is in effect, it shall not institute against, or join any
other person in instituting against, any Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing commercial paper note issued by such Conduit is paid. This
Section 9.06(g) shall survive the termination of this Agreement.
(h) The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in the State of Delaware or New
York a copy of each Assignment and Assumption Agreement delivered to it and a
register for the recordation of the names and addresses of the Banks, and the
Commitments of, and principal amount of the Loans owing to, each Bank pursuant
to the terms hereof from time to time (the "REGISTER"). The entries in the
Register shall be conclusive, and the Borrower, the Agent and the Banks may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
55
Borrower and any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
SECTION 9.07. COLLATERAL. Each of the Banks represents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. GOVERNING LAW. THIS AGREEMENT AND EACH PROMISSORY NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 9.09. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective on the date of receipt by the Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE GUARANTOR,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. JUDGMENT CURRENCY. If, under any applicable law and whether
pursuant to a judgment being made or registered against any Obligor or for any
other reason, any payment under or in connection with this Agreement, is made or
satisfied in a currency (the "OTHER CURRENCY") other than that in which the
relevant payment is due (the "REQUIRED CURRENCY") then, to the extent that the
payment (when converted into the Required Currency at the rate of exchange on
the date of payment or, if it is not practicable for the party entitled thereto
(the "PAYEE") to purchase the Required Currency with the other Currency on the
date of payment, at the rate of exchange as soon thereafter as it is practicable
for it to do so) actually received by the Payee falls short of the amount due
under the terms of this Agreement, such Obligor shall, to the extent permitted
by law, as a separate and independent obligation, indemnify and hold harmless
the Payee against the amount of such short-fall. For the purpose of this
Section, "rate of exchange" means the rate at which the Payee is able on the
relevant date to purchase the Required Currency with the Other Currency and
shall take into account any premium and other costs of exchange.
56
SECTION 9.12. JUDICIAL PROCEEDINGS. (a) CONSENT TO JURISDICTION. Each
Obligor irrevocably submits to the non-exclusive jurisdiction of any federal or
New York State court sitting in New York City over any suit, action or
proceeding arising out of or relating to the Financing Documents. Each Obligor
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in such court and any claim that any suit, action or
proceeding brought in such court has been brought in an inconvenient forum. Each
Obligor agrees that a final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon it and will be
given effect in Luxembourg to the fullest extent permitted by applicable law and
may be enforced in any federal or New York State court sitting in New York City
(or any other courts to the jurisdiction of which such Obligor is or may be
subject) by a suit upon such judgment, PROVIDED that service of process is
effected upon it in one of the manners specified herein or as otherwise
permitted by law.
(b) APPOINTMENT OF AGENT FOR SERVICE OF PROCESS. Each Obligor hereby
irrevocably designates and appoints CT Corporation System having an office on
the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized
agent, to accept and acknowledge on its behalf, service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in subsection (a) above in any federal or New York State court sitting in New
York City. Each Obligor represents and warrants that such agent has agreed in
writing to accept such appointment and that a true copy of such designation and
acceptance has been delivered to the Agent. Such designation and appointment
shall be irrevocable until all principal and interest and all other amounts
payable under the Financing Documents shall have been paid in full in accordance
with the provisions hereof. If such agent shall cease so to act, each Obligor
covenants and agrees to designate irrevocably and appoint without delay another
such agent satisfactory to the Agent and to deliver promptly to the Agent
evidence in writing of such other agent's acceptance of such appointment.
(c) SERVICE OF PROCESS. Each Obligor hereby consents to process being
served in any suit, action, or proceeding of the nature referred to in
subsection (a) above in any federal or New York State court sitting in New York
City by service of process upon the agent of such Obligor, as the case may be,
for service of process in such jurisdiction appointed as provided in subsection
(b) above; PROVIDED that, to the extent lawful and possible, written notice of
said service upon such agent shall be mailed by registered airmail, postage
prepaid, return receipt requested, to such Obligor at its address specified on
the signature pages hereof or to any other address of which such Obligor shall
have given written notice to the Agent. Each Obligor irrevocably waives, to the
fullest extent permitted by law, all claim of error by reason of any such
service and agrees that such service shall be deemed in every respect effective
service of process upon such Obligor in any such suit, action or proceeding and
shall, to the fullest extent permitted by law, be taken and held to be valid and
personal service upon and personal delivery to such Obligor.
57
(d) NO LIMITATION ON SERVICE OR SUIT. Nothing in this Section shall
affect the right of the Agent or any Bank to serve process in any other manner
permitted by law or limit the right of the Agent or any Bank to bring
proceedings against any Obligor in the courts of any jurisdiction or
jurisdictions.
ARTICLE 10
GUARANTEE
SECTION 10.01. THE GUARANTEE. The Guarantor hereby guarantees the full
and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of all principal of and interest on amounts loaned to the Borrower
under the Financing Documents and all other amounts payable by the Borrower
under the Financing Documents. This is a guarantee of payment and not merely of
collection. Upon failure by the Borrower to pay punctually any such amount, the
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in the applicable Financing Document.
SECTION 10.02. GUARANTEE UNCONDITIONAL. The obligations of the Guarantor
hereunder shall be unconditional and absolute, and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected, at any time by, and the Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any and all of the
following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under any Financing
Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to any
Financing Document;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under any
Financing Document;
(iv) any change in the corporate existence, structure or ownership
of the Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower or its assets or any resulting
release or discharge of any obligation of the Guarantor or the Borrower
contained in any Financing Document;
(v) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the Borrower, the Agent, any Bank
or any other Person, whether in connection herewith or any unrelated
transactions, PROVIDED that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
58
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of any Financing Document, or any provision of
applicable law or regulation purporting to prohibit the payment by the
Borrower of any amount payable by it under any Financing Document; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Guarantor's obligations hereunder.
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. This Agreement shall remain in full force and effect
until the Commitments shall have terminated and the principal of and interest on
the Loans and all other amounts payable by the Borrower under the Financing
Documents shall have been paid in full. If at any time any payment of principal
of or interest on any Loan or any other amount payable by the Borrower under the
Financing Documents is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantor's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
SECTION 10.04. WAIVER BY THE GUARANTOR. The Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
SECTION 10.05. SUBROGATION. Upon making any payment hereunder with
respect to the Borrower, the Guarantor shall be subrogated to the rights of the
payee against the Borrower with respect to such payment; PROVIDED that the
Guarantor shall not enforce any payment by way of subrogation until all amounts
of principal of and interest on the Loans and all other amounts payable by the
Borrower under the Financing Documents have been paid in full and the
Commitments have been terminated.
SECTION 10.06. STAY OF ACCELERATION. In the event that acceleration of
the time for payment of any amount payable by the Borrower under any Financing
Document is stayed upon insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement shall nonetheless be payable by the Guarantor hereunder forthwith
on demand by the Required Banks.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Xxxxxxxxxxxx X. Xxxxxxx
----------------------------------------
Title: Managing Director
Address: 0xx Xxxxx, 0 Xxxxxx Xxxxx Xxxxxx
X-0000, Xxxxxxxxxx
Xxxxxxxxx number: 011-352-464-350
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Title: Chief Financial Officer and
Executive Vice President
Address: The Zurich Center, 0xx Xxxxx
00 Xxxxx Xxx Xxxx
Facsimile number: 000-000-0000
60
JPMORGAN CHASE BANK
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxx
----------------------------------------
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Title: Authorized Signatory
61
JPMORGAN CHASE BANK, as Agent
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
Address: Attn: Xxxxxx Xxxxxx
Loan & Agency Services Grp.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: 000-000-0000
62
COMMITMENT SCHEDULE
JPMorgan Chase Bank $500,000,000.00
Citibank, N.A. $500,000,000.00
Xxxxxxx Xxxxx Credit Partners L.P. $500,000,000.00
Total Commitments $1,500,000,000.00
----------------- -----------------
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PRICING SCHEDULE
The "EURO-DOLLAR MARGIN" and "BASE RATE MARGIN" for any day are the
respective percentages set forth below in the applicable row and column based
upon the Status that exists on such day:
-------------------------- ---------- ----------- ----------- ------------ ----------- -------------- ---------------
STATUS XXXXX 0 XXXXX XX XXXXX XXX XXXXX XX XXXXX X XXXXX XX XXXXX XXX
-------------------------- ---------- ----------- ----------- ------------ ----------- -------------- ---------------
Euro-Dollar Margin: 0.475% 0.625% 0.75% 0.875% 1.125% 1.375% 1.625%
-------------------------- ---------- ----------- ----------- ------------ ----------- -------------- ---------------
Base Rate Margin: 0.00% 0.00% 0.00% 0.00% 0.125% 0.375% 0.625%
-------------------------- ---------- ----------- ----------- ------------ ----------- -------------- ---------------
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule:
"LEVEL I STATUS" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated A+ or higher by S&P OR A1 or higher by
Xxxxx'x.
"LEVEL II STATUS" exists at any date if, at such date, (i) the
Borrower's senior unsecured long-term debt is rated A or higher by S&P OR A2 or
higher by Xxxxx'x and (ii) Level I Status does not exist.
"LEVEL III STATUS" exists at any date if, at such date, (i) the
Borrower's senior unsecured long-term debt is rated A- or higher by S&P OR A3 or
higher by Xxxxx'x and (ii) neither Level I Status nor Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated BBB+ or higher by S&P OR Baa1 or higher
by Xxxxx'x and (ii) none of Level I Status, Level II Status or Level III Status
exists.
"LEVEL V STATUS" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated BBB or higher by S&P OR Baa2 or higher
by Xxxxx'x and (ii) none of Level I Status, Level II Status, Level III Status or
Level IV Status exists.
"LEVEL VI STATUS" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated BBB- or higher by S&P Or Baa3 or higher
by Xxxxx'x and (ii) none of Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status exists.
"LEVEL VII STATUS" exists at any date if, at such date, no other Status
exists.
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"STATUS" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status, Level VI Status or
Level VII Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date. If the Borrower is
split-rated and the ratings differential is one notch, the higher of the two
ratings will apply (E.G., A/A3 results in Level II Status). If the Borrower is
split-rated and the ratings differential is more than one notch, the average of
the two ratings (or the higher of two intermediate ratings) shall be used (E.G.,
A/Baa1 results in Level III Status, as does A/Baa2).
Notwithstanding the foregoing, if the Borrower and the Guarantor agree to
any pricing term under either Existing Credit Agreement that is more favorable
to the banks party thereto than the pricing terms set forth herein, this Pricing
Schedule shall automatically and without further action by the parties hereto be
amended to incorporate herein such more favorable pricing terms.
65
