EXHIBIT 10.2
CONFORMED COPY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
U.S.$1,500,000,000
364-DAY REVOLVING CREDIT AGREEMENT
DATED AS OF
JANUARY 31, 2003
AMONG
TYCO INTERNATIONAL GROUP S.A.,
BORROWER
TYCO INTERNATIONAL LTD.,
SENSORMATIC ELECTRONICS CORPORATION
XXXXX TECHNOLOGIES, INC.
INNERDYNE, INC.,
PARENT SUBSIDIARY GUARANTORS
BANK OF AMERICA, N.A.,
ADMINISTRATIVE AGENT
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
SYNDICATION AGENT
JPMORGAN CHASE BANK,
DOCUMENTATION AGENT
AND
BANC OF AMERICA SECURITIES LLC
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
JOINT LEAD ARRANGERS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
--------
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions................................... 1
Section 1.02. Accounting Terms and Determinations........... 27
Section 1.03. Types of Loans and Borrowings................. 28
Section 1.04. Letter of Credit Amounts...................... 28
Section 1.05. Times of Day.................................. 28
Section 1.06. Currency Equivalents Generally................ 28
ARTICLE 2
THE CREDITS
Section 2.01. Commitments to Lend........................... 28
Section 2.02. Notice of Borrowing........................... 29
Section 2.03. Notice to Banks; Funding of Loans............. 29
Section 2.04. Letters of Credit............................. 30
Section 2.05. Promissory Notes.............................. 37
Section 2.06. Maturity of Loans............................. 38
Section 2.07. Interest Rates; Market-Based Premium.......... 38
Section 2.08. Fees.......................................... 38
Section 2.09. Optional Termination or Reduction of
Commitments............................................... 39
Section 2.10. Mandatory Termination of Commitments.......... 39
Section 2.11. Prepayments................................... 39
Section 2.12. General Provisions as to Payments............. 40
Section 2.13. Funding Losses................................ 42
Section 2.14. Computation of Interest and Fees.............. 42
Section 2.15. Regulation D Compensation..................... 42
Section 2.16. Method of Electing Interest Rates............. 42
ARTICLE 3
CONDITIONS
Section 3.01. Effectiveness................................. 44
Section 3.02. Borrowings.................................... 45
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence and Power................. 46
Section 4.02. Corporate and Governmental Authorization; No
Contravention............................................. 46
Section 4.03. Binding Effect................................ 47
Section 4.04. Financial Information......................... 47
Section 4.05. Litigation.................................... 47
Section 4.06. Compliance with ERISA......................... 47
Section 4.07. Environmental Matters......................... 48
Section 4.08. Taxes......................................... 48
Section 4.09. Subsidiaries.................................. 48
Section 4.10. Not an Investment Company..................... 49
Section 4.11. Full Disclosure............................... 49
Section 4.12. Obligations to Be Pari Passu.................. 49
Section 4.13. Ownership of Property......................... 49
Section 4.14. Intellectual Property; Licenses, Etc.......... 49
Section 4.15. Casualty, Etc................................. 49
Section 4.16. Subsidiary Guarantors......................... 50
PAGE
--------
ARTICLE 5
COVENANTS
Section 5.01. Information................................... 50
Section 5.02. Payment of Obligations........................ 51
Section 5.03. Maintenance of Property; Insurance............ 52
Section 5.04. Conduct of Business and Maintenance of
Existence................................................. 52
Section 5.05. Compliance with Laws.......................... 53
Section 5.06. Inspection of Property, Books and Records..... 53
Section 5.07. Limitation on Restrictions on Subsidiary
Dividends and Other Distributions......................... 53
Section 5.08. Debt.......................................... 54
Section 5.09. Financial Covenants........................... 55
Section 5.10. Restrictions on Liens......................... 56
Section 5.11. Consolidations, Mergers and Sales of Assets... 57
Section 5.12. Transactions with Affiliates.................. 58
Section 5.13. Restricted Payments........................... 59
Section 5.14. Subsidiary Guarantors; Covenant to Give
Guarantee and Pari Passu Guarantees....................... 59
Section 5.15. Use of Proceeds............................... 60
Section 5.16. Limitations on Sale and Leaseback
Transactions.............................................. 60
Section 5.17. Investments................................... 60
Section 5.18. Five-Year Credit Agreement.................... 60
Section 5.19. Negative Pledge............................... 60
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default............................. 60
Section 6.02. Remedies upon Event of Default................ 63
Section 6.03. Application of Funds.......................... 64
Section 6.04. Notice of Default............................. 65
ARTICLE 7
THE AGENTS
Section 7.01. Appointment and Authorization of the Agents... 65
Section 7.02. Delegation of Duties.......................... 66
Section 7.03. Liability of Agents........................... 66
Section 7.04. Reliance by Agents............................ 66
Section 7.05. Notice of Default............................. 67
Section 7.06. Credit Decision; Disclosure of Information by
Agent..................................................... 67
Section 7.07. Indemnification of Agents..................... 67
Section 7.08. Agents in Their Individual Capacity........... 68
Section 7.09. Successor Administrative Agent................ 68
Section 7.10. Administrative Agent May File Proofs of
Claim..................................................... 69
Section 7.11. Guarantee Matters............................. 70
Section 7.12. Other Agents; Arrangers and Managers.......... 70
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate
or Unfair................................................. 71
Section 8.02. Illegality.................................... 71
Section 8.03. Increased Cost and Reduced Return............. 72
Section 8.04. Taxes......................................... 73
Section 8.05. Base Rate Loans Substituted for Euro-Dollar
Loans..................................................... 74
ii
PAGE
--------
Section 8.06. Substitution of Bank.......................... 74
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Other Communications; Facsimile
Copies.................................................... 75
Section 9.02. No Waivers.................................... 76
Section 9.03. Expenses; Indemnification..................... 76
Section 9.04. Sharing of Set-Offs; Payments Set Aside....... 77
Section 9.05. Amendments and Waivers........................ 78
Section 9.06. Successors and Assigns........................ 79
Section 9.07. Collateral.................................... 83
Section 9.08. Governing Law................................. 83
Section 9.09. Counterparts; Integration..................... 83
Section 9.10. Waiver of Jury Trial.......................... 83
Section 9.11. Judgment Currency............................. 83
Section 9.12. Judicial Proceedings.......................... 84
Section 9.13. Loans and Unreimbursed Drawings............... 85
Section 9.14. Confidentiality............................... 85
Section 9.15. No Challenges................................. 86
ARTICLE 10
GUARANTEE
Section 10.01. The Guarantee................................ 86
Section 10.02. Guarantee Unconditional...................... 87
Section 10.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances.................... 88
Section 10.04. Waivers and Acknowledgments by the
Guarantors................................................ 89
Section 10.05. Subrogation.................................. 89
Section 10.06. Stay of Acceleration......................... 90
SCHEDULES
Schedule I -- Pricing
Schedule II -- Commitments
Schedule III -- Existing Letters of Credit
Schedule 4.05 -- Existing Litigation
Schedule 9.01 -- Administrative Agent's Office, Certain Addresses for Notices
iii
EXHIBITS
Exhibit A -- Promissory Note
Exhibit B-1 -- Notice of Borrowing
Exhibit B-2 -- Notice of Issuance
Exhibit C-1 -- Opinion of General Counsel of the Parent
Exhibit C-2 -- Opinion of Special
New York Counsel to the Parent and the
Borrower
Exhibit D -- Opinion of Special Counsel for the Borrower
Exhibit E -- Opinion of Special Counsel for the Parent
Exhibit F -- Assignment and Assumption Agreement
Exhibit G-1 -- Form of Subsidiary Guarantee
Exhibit G-2 -- Form of Borrower Subsidiary Guarantee
Exhibit H -- Form of Cash Collateral Account Agreement
Exhibit I -- Form of Joinder Agreement
Exhibit J -- Form of L/C Report
Exhibit K -- Form of Opinion of Counsel(s) to Subsidiary Guarantor(s)
iv
364-DAY REVOLVING CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of January 31, 2003 among TYCO
INTERNATIONAL GROUP S.A., as Borrower, TYCO INTERNATIONAL LTD., SENSORMATIC
ELECTRONICS CORPORATION, XXXXX TECHNOLOGIES, INC. and INNERDYNE, INC., as Parent
Subsidiary Guarantors, the BANKS listed on the signature pages hereof and BANK
OF AMERICA, N.A., as Agent and initial L/C Issuer.
The Borrower has requested that the Banks provide a revolving credit
facility in an aggregate principal amount of U.S.$1,500,000,000, and the Banks
are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ACCUMULATED OTHER COMPREHENSIVE (LOSS) INCOME" on any date means the amount
of "Accumulated Other Comprehensive (Loss) Income" of the Parent and its
Subsidiaries as of the end of the most recently completed fiscal quarter of the
Parent prior to such date of determination determined on a consolidated basis in
accordance with GAAP.
"ADDITIONAL SUBSIDIARY GUARANTOR" has the meaning set forth in
SECTION 5.14(B).
"ADMINISTRATIVE AGENT" means Bank of America, N.A. in its capacity as
administrative agent for the Banks under the Financing Documents, any successor
agent that becomes the Administrative Agent pursuant to SECTION 7.09, and the
respective corporate successors of the foregoing acting in such capacity.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address,
and, as appropriate, account as set forth on SCHEDULE 9.01, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Banks.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative 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 Parent (a "CONTROLLING PERSON") or (ii) any
Person (other than the Parent 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.
"AFFILIATE TRANSACTIONS" has the meaning set forth in SECTION 5.12.
"AGENTS" means the Administrative Agent, MSSF, in its capacity as
syndication agent hereunder and JPMorgan Chase Bank, in its capacity as
documentation agent hereunder, and their respective successors and assigns.
"AGENT-RELATED PERSONS" means the Administrative Agent and MSSF, in its
capacity as syndication agent, together with their respective Affiliates
(including, in the case of Bank of America in its capacity
1
as the Administrative Agent, BAS), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"ALPHA" means Tyco International Finance Alpha GmbH, a Swiss corporation.
"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" means (i) a Bank; (ii) a Bank Affiliate; (iii) an Approved Fund;
and (iv) any other Person (other than a natural person) approved by (a) the
Administrative Agent and (b) the L/C Issuers (each such approval not to be
unreasonably withheld or delayed); PROVIDED that notwithstanding the foregoing,
"Assignee" shall not include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set forth in
SECTION 9.06(b).
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"ATTRIBUTABLE DEBT" shall mean, as of the date of its determination, the
present value (discounted at an interest rate implicit in the terms of the
lease) of the obligation of a lessee for rental payments pursuant to any Sale
and Leaseback Transaction during the remaining term of such Sale and Leaseback
Transaction (including any period for which the lease relating thereto has been
extended), such rental payments not to include amounts payable by the lessee for
maintenance and repairs, insurance, taxes, assessments and similar charges and
for contingent rents (such as those based on sales).
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning set forth in
SECTION 2.04(b)(III).
"AVAILABILITY PERIOD" means the period from and including the Effective Date
to the earliest of (i) the Termination Date, (ii) the date of termination of the
Commitments pursuant to SECTION 2.09 or 2.10, and (iii) the date of termination
of the commitment of each Bank to make Loans and of the obligation of the L/C
Issuers to make L/C Credit Extensions pursuant to SECTION 6.02.
"AVERAGE TRADING PRICE" means the average of the trading prices that are
obtained by the Co-Agents from the trading desks of SSB, Xxxxxx Xxxxxxx and BAS
for the Benchmark Notes for the period of ten consecutive trading days ending on
the third Business Day prior to a Quarterly Payment Date; PROVIDED, HOWEVER,
that in the event no trading in the Benchmark Notes is reported for any of such
ten trading days, the Co-Agents shall utilize the average of the "bid" and "ask"
quotes as of 10:00 a.m. on such day obtained by the Co-Agents from the trading
desks of SSB, Xxxxxx Xxxxxxx and BAS for each such day in determining the
Average Trading Price as of such Quarterly Payment Date.
"BANK" means each financial institution listed on the signature pages
hereof, each Assignee which becomes a Bank pursuant to SECTION 9.06(B), and the
respective corporate successors of the foregoing.
"BANK AFFILIATE" means, with respect to any Agent or any Bank, any Person
controlling, controlled by or under common control with such Agent or such Bank,
as the case may be.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BANK PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar foreign, federal
or state law for the relief of debtors and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief
2
laws of the United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.
"BAS" means Banc of America Securities LLC.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (i) the Federal Funds Rate PLUS 1/2 of 1% and (ii) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"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 2.07(A) or ARTICLE 8.
"BASE RATE MARGIN" has the meaning specified in the Pricing Schedule.
"BENCHMARK NOTES" means the Borrower's Senior Notes due February 15, 2006.
"BERMUDA COMPANIES LAW" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the Parent.
"BORROWER" means Tyco International Group S.A., a Luxembourg company, and
its successors.
"BORROWER SUBSIDIARY GUARANTEE" means the Guarantee made by the Borrower
Subsidiary Guarantors in favor of the Agents, the L/C Issuers and the Banks
substantially in the form of EXHIBIT G-2 hereto as it may be amended, restated,
supplemented or otherwise modified from time to time.
"BORROWER SUBSIDIARY GUARANTEE SUPPLEMENT" means the guarantee supplement
attached as Exhibit A to the Borrower Subsidiary Guarantee pursuant to which,
upon the execution and delivery thereof by a Subsidiary of the Borrower, such
Person shall become a party to the Borrower Subsidiary Guarantee and a Borrower
Subsidiary Guarantor thereunder.
"BORROWER SUBSIDIARY GUARANTORS" means ADT Security Services, Inc., Tyco
Plastics LP, SimplexGrinnell LP, Tyco Electronics Corporation,
Mallinckrodt Inc., Tyco Healthcare Retail Group, Inc., Tyco Healthcare Group LP,
Alpha and Tyco Group S.a.r.l.
"BORROWER'S DEBT SECURITIES" means the Borrower's senior unsecured long-term
debt securities without third-party credit enhancement.
"BORROWING" has the meaning set forth in SECTION 1.03.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Euro-Dollar Loan, means any such day on which dealings
in U.S. dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"CASH COLLATERAL ACCOUNT" means a blocked, non-interest-bearing deposit
account (deposits in which account may be invested from time to time in U.S.
dollar-denominated Cash Equivalents) at Bank of America (or another commercial
bank or financial institution consented to by the L/C Issuer of the Letter of
Credit in respect of which cash collateral is required to be delivered
hereunder) for the benefit of such L/C Issuer and the Banks in the name of the
Borrower and under the sole dominion and control of the Administrative Agent,
and otherwise established in a manner satisfactory to such
3
L/C Issuer, and shall include the securities account through which such U.S.
dollar-denominated Cash Equivalents on deposit are invested.
"CASH COLLATERAL ACCOUNT AGREEMENT" has the meaning specified in
SECTION 2.04(G).
"CASH COLLATERALIZE" has the meaning specified in SECTION 2.04(G).
"CASH EQUIVALENTS" means any of the following types of Investments, to the
extent owned by the Parent or any of its Subsidiaries free and clear of all
Liens (other than Liens created or permitted under the Financing Documents):
(i) readily marketable obligations issued or directly and fully
guaranteed or insured by (A) the United States of America or any agency or
instrumentality thereof having remaining terms to maturity of not more than
three years from the date of acquisition thereof or (B) in the case of an
Investment of funds held in the ordinary course of business by the Borrower
or a Subsidiary outside the United States, the government of the country in
which such funds are held (or any political subdivision thereof) which
obligations have a rating from S&P of at least "AA-" or at least "Aa3" from
Xxxxx'x, or in the event such obligations are not rated by S&P or Xxxxx'x,
such government or such political subdivision thereof has a rating from S&P
of at least "AA-" or at least "Aa3" from Xxxxx'x, in each case with a
remaining term to maturity of not more than three years from the date of
acquisition thereof;
(ii) time deposits with, or certificates of deposit or bankers'
acceptances of, any commercial bank or other depository institution that
(i) is a Bank or (ii) has a rating from S&P of at least "A" or at least "A2"
from Xxxxx'x, in each case with a remaining term to maturity of not more
than one year from the date of acquisition thereof;
(iii) repurchase obligations with respect to any security described in
clause (i) above entered into with any entity described in clause (ii) above
and with a remaining term to maturity of not more than 30 days from the date
of acquisition thereof;
(iv) commercial paper having a rating at the time of acquisition thereof
of at least "A-1" from S&P or "Prime-1" from Xxxxx'x, in each case with a
maturity of not more than 270 days from the date of issuance thereof;
(v) corporate debt securities having a rating at the time of acquisition
thereof of at least "AA-" from S&P or at least "Aa3" from Xxxxx'x, in each
case with a remaining term to maturity of not more than three years from the
date of acquisition thereof;
(vi) asset-backed debt securities having a rating at the time of
acquisition thereof of at least (a) "AAA-" from S&P or at least "Aaa" from
Xxxxx'x in the case of long-term asset-backed debt securities; PROVIDED that
the weighted average life of all such securities shall be not more than
three years at any time or (b) "A-1" from S&P or at least "Prime-1" from
Xxxxx'x in the case of asset-backed commercial paper, in each case with a
remaining term to maturity of not more than 270 days, and in each case that
are publicly registered or eligible for private placement under Rule 144A,
Regulation D or Regulation S, respectively, under the Securities Act of
1933, as amended, or are otherwise exempt from or not subject to the
registration requirements of the Securities Act of 1933, as amended;
(vii) mortgage-backed securities having a rating at the time of
acquisition thereof of at least "AAA" from S&P or at least "Aaa" from
Xxxxx'x; PROVIDED that the weighted average life of all such securities
shall be not more than three years at any time and such securities are
publicly registered or eligible for private placement under Rule 144A,
Regulation D or Regulation S, respectively, under the Securities Act of
1933, as amended, or are otherwise exempt from or not subject to the
registration requirements of the Securities Act of 1933, as amended;
4
(viii) tax-exempt bonds having a rating at the time of acquisition thereof
of at least "A-1" from S&P or at least "MIG1" from Xxxxx'x, in each case
with a remaining term to maturity of not more than three years from the date
of acquisition thereof;
(ix) Investments, classified in accordance with GAAP as current assets
of the Borrower or any of its Subsidiaries, in money market funds which, in
the case of Investments of assets held in the United States, are registered
under the Investment Company Act of 1940, as amended, and operate under
Rule 2a-7 of that Act, and which, in the case of Investments of assets held
in the ordinary course of business outside the United States, follow
policies (consistent with local law, custom and practice) similar to those
followed by United States based money market funds that operate under said
Rule 2a-7, which funds in either case (a) have portfolios limited solely to
Investments of the character, quality and maturities described in clauses
(i), (ii), (iii) and (iv) of this definition or (b) are rated, with a rating
of at least "AAA" from S&P or at least "Aaa" from Xxxxx'x (or, in the case
of assets held outside the United States, have a rating of at least "AAA"
from S&P or at least "Aaa" from Xxxxx'x or, if not rated by either S&P or
Xxxxx'x, have a rating of at least "AAA" from Fitch Ratings or, if not rated
by any of S&P, Xxxxx'x or Xxxxx Ratings, such rating as may be equivalent
thereto) except that (A) up to 15% of the portfolio of any such fund may be
Investments of the type described in clause (iv) but having a rating of at
least "A-2" from S&P or at least "Prime-2" from Xxxxx'x (or, in the case of
assets held outside the United States, have a rating of at least "A-2" from
S&P or at least "Prime-2" from Xxxxx'x or, if not rated by either S&P or
Xxxxx'x, have a rating of at least "A-2" from Fitch Ratings or, if not rated
by any of S&P, Xxxxx'x or Xxxxx Ratings, such rating as may be equivalent
thereto) and (B) maturities of individual Investments of any such fund may
exceed the otherwise permitted maturities (but may in no event exceed one
year) so long as the weighted average maturity of the portfolio does not
exceed 120 days at any time; and
(x) for a period of three months following the Effective Date, cash
equivalents denominated in U.S. dollars and other freely tradable currencies
owned on the date hereof and for a period of six months following the
Effective Date, all other cash equivalents of the Parent and its
Subsidiaries owned on the date hereof that, in each case, would not
otherwise be Cash Equivalents.
Each reference in this definition to a particular rating category shall be
deemed to refer to the then equivalent category if the applicable rating
agency's ratings categories have changed after the date hereof. Each Cash
Equivalent shall be denominated in U.S. dollars or a freely tradable foreign
currency, other than to the extent (a) required by law or (b) that the funds
used to make such Investment are already in a currency that is not freely
tradable and either (1) may not be readily or economically converted to another
freely tradable currency or (2) are reasonably needed in the operations of the
business by which such funds were generated.
"CO-AGENT" means each of the Administrative Agent and MSSF in its capacity
as syndication agent.
"COMMITMENT" means, (i) with respect to each Bank listed on the Commitment
Schedule, its obligation to make Loans to the Borrower pursuant to
SECTION 2.01(a), and purchase participations in L/C Obligations, in an aggregate
principal amount at any one time outstanding not to exceed 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(b), as the case may be, in each case as such amount may be changed
from time to time pursuant to SECTION 2.09, 2.10 or 9.06(b).
"COMMITMENT FEE RATE" means a rate per annum equal to 0.50%.
5
"COMMITMENT PERCENTAGE" means, with respect to each Bank, the percentage
equivalent of a fraction the numerator of which is the amount of its Commitment
and the denominator of which is the aggregate amount of the Commitments of all
Banks; PROVIDED that if the commitment of each Bank to make Loans and the
obligation of the L/C Issuers to make L/C Credit Extensions have been terminated
pursuant to SECTION 6.02, then the Commitment Percentage of each Bank shall be
determined based on the Commitment Percentage of such Bank immediately prior to
such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached hereto as
SCHEDULE II.
"COMPENSATION PERIOD" has the meaning set forth in SECTION 2.12(b)(ii).
"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(g).
"CONSENTS" has the meaning set forth in SECTION 4.01.
"CONSOLIDATED ASSETS" means, at any time, the total assets of the Parent and
its Subsidiaries, determined on a consolidated basis as of such time.
"CONSOLIDATED DEBT" means, at any date, all Debt of the Parent and its
Subsidiaries (without duplication) 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 GAAP, 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, (ii) Consolidated Debt shall in any event include any
Preferred Stock held by a Person other than the Parent or a Wholly Owned
Subsidiary, at the higher of its voluntary or involuntary liquidation value and
(iii) Consolidated Debt shall not include (u) Debt in respect of Pari Passu
Guarantees, (v) Debt of a joint venture, partnership or similar entity which is
Guaranteed by the Parent or a Subsidiary solely 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
U.S.$50,000,000, (w) (1) Letters of Credit identified by the L/C Issuer thereof
to the Administrative Agent as Performance L/Cs or other letters of credit, bank
guarantees and similar instruments that the Borrower has identified to the
Administrative Agent as supporting Performance Obligations of the Parent or any
of its Subsidiaries and has provided such other information reasonably requested
by the Administrative Agent to support such conclusion, (2) letters of credit
(or Letters of Credit), bank guarantees or similar instruments to the extent the
underlying reimbursement obligation of the Parent or any of its Subsidiaries has
been secured by cash or Cash Equivalents and (3) any Letter of Credit or other
letter of credit (a "backstop l/c") under which the beneficiary is the issuer of
a letter of credit, bank guarantee or similar instrument (an "underlying l/c")
to the extent that the underlying l/c is (A) issued for the account of the
Parent or a Subsidiary, (B) constitutes Consolidated Debt and (C) is in the same
amount as the backstop l/c, (x) Consolidated Debt in respect of Permitted
Project Financings in an aggregate amount not to exceed the lesser of
U.S.$250,000,000 and the dollar amount of such Permitted Project Financings
excluded under the Five-Year Credit Agreement from "Consolidated Debt" as such
term is defined in the Five-Year Credit Agreement pursuant to an amendment
thereunder to specifically permit such exclusion, (y) Attributable Debt incurred
on and after January 1, 2003 to the extent the aggregate amount thereof does not
exceed U.S.$200,000,000 and (z) Intercompany Debt.
"CONSOLIDATED EBIT" means, for any fiscal period, an amount equal to
Consolidated Net Income for such period PLUS the following to the extent
deducted in calculating such Consolidated Net Income:
6
(i) Consolidated Interest Expense for such period and (ii) the provision for
federal, state, local and foreign income taxes payable by the Parent and its
Subsidiaries for such period
"CONSOLIDATED EBITDA" means, for any fiscal period, Consolidated EBIT for
such period PLUS (a) the amount of depreciation and amortization expense
deducted in determining Consolidated Net Income for such period, (b) the amount
of rental payments with respect to Synthetic Lease Obligations deducted in
determining such Consolidated Net Income, (c) other noncash expenses of the
Parent and its Subsidiaries reducing such Consolidated Net Income that do not
represent a cash item in such period or any future period and (d) Specified
Charges to the extent deducted in determining such Consolidated Net Income MINUS
(A) all other noncash items increasing Consolidated Net Income for such period
and (B) an amount equal to all losses from the discontinuance of operations and
all cash losses of the Parent and its Subsidiaries for such period resulting
from the sale, conversion or other disposition of material assets of the Parent
or any Subsidiary other than in the ordinary course of business, in each case to
the extent eliminated in determining such Consolidated Net Income.
"CONSOLIDATED INTEREST EXPENSE" means, for any fiscal period (without
duplication), (i) the consolidated interest expense of the Parent and its
Subsidiaries for such period MINUS (ii) the consolidated interest income of the
Parent and its Subsidiaries for such period to the extent such consolidated
interest income is equal to or less than U.S.$5,000,000, MINUS
(iii) consolidated interest expense accrued during such period with respect to
Permitted Project Financings in an aggregate amount not to exceed the amount of
interest expense with respect to Permitted Project Financings that the Five-Year
Credit Agreement excludes during such period from "Consolidated Interest
Expense" as such term is defined in the Five-Year Credit Agreement pursuant to
an amendment thereunder to specifically permit such exclusion, PLUS (iv) if a
Permitted Receivables Transaction outstanding during such period is accounted
for as a sale of accounts receivable under GAAP, (x) the additional consolidated
interest expense that would have accrued during such period had such Permitted
Receivables Transaction been accounted for as a borrowing during such period
MINUS (y) interest income accrued during such period with respect to interest
bearing accounts receivable that are the subject of such Permitted Receivables
Transaction, but not to exceed the amount thereof that is deductible during such
period from "Consolidated Interest Expense" as such term is defined pursuant to
an amendment to the Five-Year Credit Agreement, PLUS (v) the amount of dividends
payable (in cash) at the rate stated in the relevant certificate of designation
or authorizing documentation during such period with respect to Preferred Stock
of the Parent and its Subsidiaries, in each case determined on a consolidated
basis.
"CONSOLIDATED NET INCOME" means, for any fiscal period, the consolidated net
income of the Parent and its Subsidiaries for such period, after eliminating
therefrom all Extraordinary Gains and Losses.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated shareholders'
equity of the Parent and its Subsidiaries as of such date and adjusted so as to
exclude (x) the effect of Accumulated Other Comprehensive (Loss) Income as of
such date and (y) the effect of Specified Charges for the period from the
Effective Date to such date.
"CONSOLIDATED TANGIBLE ASSETS" means, at any time, the total assets less all
Intangible Assets appearing on the most recently prepared balance sheet of the
Parent and its Subsidiaries as of the end of a fiscal quarter of the Parent,
prepared on a consolidated basis in accordance with GAAP.
"CONVERTIBLE BONDS" has the meaning set forth in SECTION 3.01(e).
"CREDIT EXTENSION" means each of the following: (i) a Borrowing and (ii) an
L/C Credit Extension.
"DEALER ACCOUNTS" means a contract for the provision of fire and/or security
alarm monitoring services under which the provider is entitled to a periodic
monitoring fee which contract is either (i) generated by a Subsidiary in the
fire and security services businesses of the Parent and its Subsidiaries or
(ii) is purchased by such Subsidiary from a dealer or security service provider,
in each
7
case, in the ordinary course of business consistent with the past practices of
Subsidiaries in the fire and security services businesses.
"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
principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (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, (b) employee
compensation and pension obligations, and other obligations arising from
employee benefit programs and agreements or other similar employment
arrangements and (c) obligations in respect of trade letters of credit
supporting trade and similar accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized on
the books of such Person in accordance with GAAP, (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, (vi) all direct or contingent obligations of such Person arising
under standby letters of credit, bankers' acceptances, bank guarantees and
similar instruments, (vii) Synthetic Lease Obligations and (viii) all Debt of
others Guaranteed by such Person; it being understood that performance bonds,
performance guaranties, letters of credit (including 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 GAAP.
"DEBT RATING" means a rating of the Borrower's long-term debt that 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.
"DEFAULT" means any condition or event that constitutes an Event of Default
or that with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"DEFAULT RATE" means an interest rate equal to (i) the Base Rate PLUS
(ii) the Base Rate Margin PLUS (iii) 2% per annum, to the fullest extent
permitted by applicable laws.
"DEFAULTING BANK" means any Bank that (i) has failed to fund any portion of
the Loans or participations in L/C Obligations required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (ii) has otherwise failed to pay over to the Administrative Agent or
any other Bank any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (iii) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"DESIGNATED OFFICER" means the chairman, president, chief financial officer
or treasurer of the Parent or the treasurer of Tyco International (US) Inc.
"DESIGNATED SWAP RATE" means, as of any date of determination, the "Bid"
rate under the US SPREADS field for the 3-year swap set forth on the Bloomberg
Professional Terminal screen "IRSB 18" (or any successor screen thereto) at
10:00 a.m. on such date.
"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 Administrative Agent.
8
"DOMESTIC TAXES" has the meaning set forth in SECTION 8.04(A).
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with SECTION 3.01.
"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.
"EQUITY INTERESTS" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the Stock Equivalents of such Person, and all of the other ownership or profit
interests in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such
shares, Stock Equivalents or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means any Obligor 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 Obligor, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"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 Administrative Agent.
"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 for any Interest Period with respect to any
Euro-Dollar Loan:
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in U.S. dollars
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(ii) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits in
U.S. dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(iii) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in U.S. dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
9
amount of the Euro-Dollar Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time)
two Business Days prior to the first day of such Interest Period.
"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 U.S.
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 Bank to United States residents).
"EVENT OF DEFAULT" has the meaning set forth in SECTION 6.01.
"EXISTING LETTER OF CREDIT" means each of the letters of credit identified
by the Borrower on SCHEDULE III.
"EXISTING LITIGATION" has the meaning specified in SECTION 4.05.
"EXTRAORDINARY GAINS AND LOSSES" means and includes, for any fiscal period,
all extraordinary gains and losses and all other material nonrecurring noncash
items of the Parent and its 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 Parent
and its Subsidiaries for such period resulting from the sale, conversion or
other disposition of material assets of the Parent or any Subsidiary other than
in the ordinary course of business.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum 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 Business Day
next succeeding such day; PROVIDED that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) quoted to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"FEE LETTER" means the Fee Letter dated December 20, 2002 among the
Borrower, the Parent, Bank of America and the Joint Lead Arrangers, as amended
or otherwise supplemented from time to time.
"FINANCIAL L/C" means a Letter of Credit issued hereunder that is not a
Performance L/C.
"FINANCING DOCUMENTS" means (i) this Agreement, (ii) the Fee Letter,
(iii) each Letter of Credit Application, (iv) the Subsidiary Guarantees,
(v) the Promissory Notes, (vi) the Cash Collateral Account Agreements and
(vii) the Commitment Letter dated as of December 20, 2002, as amended or
otherwise supplemented from time to time, among the Borrower, the Parent, Bank
of America and the Joint Lead Arrangers with respect to those provisions therein
that are stated to survive the execution and delivery of this Agreement.
"FITCH RATINGS" means Fitch, Inc., or any successor to its business of
rating debt securities.
"FIVE-YEAR CREDIT AGREEMENT" means the Five-Year Credit Agreement dated as
of February 7, 2001 among the Borrower, the Parent, the banks party thereto,
JPMorgan Chase Bank (formerly The Chase
10
Manhattan Bank), as agent, and the other agents party thereto, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, to the extent permitted under the terms of the Financing Documents.
"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.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"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.
"GUARANTEED OBLIGATIONS" has the meaning specified in SECTION 10.01(a).
"GUARANTORS" means, collectively, the Parent, the Parent Subsidiary
Guarantors, the Borrower Subsidiary Guarantors and each other Subsidiary party
to a Subsidiary Guarantee.
"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.
"HONOR DATE" has the meaning set forth in SECTION 2.04(C)(i).
"INDEBTED SUBSIDIARY" has the meaning set forth in SECTION 5.07.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 9.03(b).
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INTANGIBLE ASSETS" means, at any date, the amount (if any) which would be
stated under the heading "Goodwill, Net" and "Intangible Assets, Net" or under
any other heading relating to intangible assets separately listed, in each case,
on the face of a balance sheet of the Parent and its Subsidiaries prepared on a
consolidated basis as of such date.
"INTERCOMPANY DEBT" means (i) any Debt of the Parent owed to a Subsidiary
and (ii) any Debt of a Subsidiary owed to the Parent or to another Subsidiary.
11
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, the period
commencing on the date of borrowing specified in the 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:
(i) any Interest Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day; and
(ii) any Interest Period which begins on the last 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 Business Day of a calendar month;
and PROVIDED FURTHER that any Interest Period applicable to any Loan which
begins before the Termination Date and would otherwise end after the Termination
Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended,
or any successor statute.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (i) the purchase or other
acquisition of Equity Interests in or other securities of another Person,
(ii) a loan, advance or capital contribution to, Guarantee or assumption of debt
of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture
interest in such other Person, or (iii) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form of
EXHIBIT I hereto.
"JOINT LEAD ARRANGERS" means BAS and MSSF.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUERS" means Bank of America in its capacity as issuer of Letters of
Credit hereunder and any other Bank that with the consent of the Co-Agents,
agrees to issue Letters of Credit hereunder, and their respective successors as
Letter of Credit Issuers hereunder.
"L/C MARGIN" means (i) with respect to a Financial L/C, the Euro-Dollar
Margin then in effect and (ii) with respect to a Performance L/C, the
Euro-Dollar Margin then in effect minus 0.75%.
"L/C OBLIGATION" means, as at any date of determination, with respect to a
Letter of Credit, the undrawn amount of such Letter of Credit PLUS the aggregate
amount of all Unreimbursed Amounts with respect to such Letter of Credit and
"L/C Obligations" means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit PLUS the aggregate amount of all
Unreimbursed Amounts.
"LETTER OF CREDIT" means any standby letter of credit issued hereunder
supporting the performance of a Person under a contract or agreement in the
ordinary course of business and shall include the Existing Letters of Credit.
12
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuers.
"LETTER OF CREDIT EXPIRATION DATE" means, with respect to any Letter of
Credit issued hereunder, the date that is up to one year after the date of
issuance of such Letter of Credit (or, if such day is not a Business Day, the
next preceding Business Day) and that is specified in such Letter of Credit (or
amendment thereto or extension thereof) as the date on which it expires.
"LETTER OF CREDIT SUBLIMIT" means an amount equal to U.S.$1,200,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Commitments.
"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 Parent 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. A bank's right of set-off against a deposit or other
account with such bank shall not constitute a "Lien" hereunder unless such
deposit or account is maintained as part of an arrangement with the intention of
securing Debt or other obligations of the Parent or a Subsidiary (other than
fees of such bank for banking services).
"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.
"MAINTENANCE LEVEL" has the meaning set forth in SECTION 5.14(b).
"MARKET-BASED PREMIUM" means, for any Quarterly Payment Date or other date
of determination, a rate per annum equal to the excess of the Market Spread on
the second Business Day prior to such date over the applicable Euro-Dollar
Margin then in effect pursuant to the Pricing Schedule; PROVIDED that the
Market-Based Premium shall at no time exceed 1.00%; and PROVIDED FURTHER that,
if the Benchmark Notes have Debt Ratings of at least (i) BBB- by S&P and Ba1 by
Moody's, the Market-Based Premium shall not exceed 0.50% or (ii) BBB- by S&P and
Baa3 by Moody's, the Market-Based Premium shall be zero.
"MARKET SPREAD" means the difference between the Spread to Treasuries and
the Designated Swap Rate, expressed as a percentage; PROVIDED, HOWEVER, that in
the event that no "bid" and "ask" quotes for the Benchmark Notes are able to be
obtained by the Co-Agents from the trading desks of SSB, Xxxxxx Xxxxxxx and BAS
for four or more of the ten consecutive trading days ending on the third
Business Day prior to a Quarterly Payment Date or other date of determination,
the Market Spread for such date shall equal 1.00% above the applicable
Euro-Dollar Margin then in effect pursuant to the Pricing Schedule.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect on the
business, assets, liabilities (actual or contingent, other than contingent
obligations arising in the ordinary course of business), consolidated financial
position or consolidated results of operations or condition (financial or
otherwise) of the Parent and its Subsidiaries, considered as a whole, (ii) a
material impairment of the ability of the Obligors to perform their obligations
under the Financing Documents, or (iii) a material impairment of the rights and
remedies of any Agent or any Bank under the Financing Documents.
"MATERIAL DEBT" means Debt of the Parent and/or one or more of its
Subsidiaries, arising in one or more related transactions, in an aggregate
outstanding principal amount exceeding U.S.$50,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of U.S.$25,000,000.
13
"MEXICAN PROJECT FINANCING" means up to U.S.$120,000,000 of project
financing of assets acquired or constructed after the date hereof by a
Subsidiary of Earth Tech Holdings, Inc. organized under the laws of Mexico,
which project financing is not Guaranteed by, or otherwise recourse (other than
recourse to such acquired or constructed assets) to, the Parent or any
Subsidiary.
"MOODY'S" means Xxxxx'x Investors Service, Inc., or any successor to such
corporation's business of rating debt securities.
"XXXXXX XXXXXXX" means Xxxxxx Xxxxxxx & Co., Incorporated.
"MSSF" means Xxxxxx Xxxxxxx Senior Funding, Inc.
"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.
"NONRENEWAL NOTICE DATE" has the meaning set forth in SECTION 2.04(b)(iii).
"NOTICE OF BORROWING" has the meaning set forth in SECTION 2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in
SECTION 2.16(a).
"NOTICE OF ISSUANCE" has the meaning set forth in SECTION 2.04(b)(i).
"OBLIGATIONS" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Obligor arising under any Financing Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including, without limitation, those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Obligor of any proceeding under any Bankruptcy Law naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding. Without limiting the generality of the
foregoing, the Obligations of the Obligors under the Financing Documents include
(i) the obligation to pay principal, interest, letter of credit fees, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Obligor under any Financing Document and (ii) the obligation of
any Obligor to reimburse any amount in respect of any of the foregoing that any
Bank, in its sole discretion, may elect to pay or advance on behalf of such
Obligor.
"OBLIGOR" means, at any time, the Borrower and each Guarantor at such time.
"OTHER CURRENCY" has the meaning set forth in SECTION 9.11.
"OTHER TAXES" has the meaning set forth in SECTION 8.04(b).
"OUTSTANDING AMOUNT" means (i) with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Loans occurring on such date; and
(ii) with respect to any L/C Obligations on any date, the amount of such L/ C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"PARENT" means Tyco International Ltd., a Bermuda company, and its
successors.
"PARENT SUBSIDIARY GUARANTORS" means Sensormatic Electronics Corporation,
Xxxxx Technologies, Inc. and Innerdyne, Inc.
14
"PARENT'S 2002 FORM 10-K" means the Parent's annual report on Form 10-K for
the fiscal year ended September 30, 2002, as filed with the SEC pursuant to the
Securities Exchange Act of 1934.
"PARI PASSU GUARANTEES" means Guarantees granted by Subsidiaries (other than
the Borrower) in favor of the holders of (i) any of the Borrower's or the
Parent's senior unsecured long-term debt securities, (ii) other facilities that
the Borrower or the Parent may be required to treat on a PARI PASSU basis with
other senior unsecured indebtedness or (iii) the obligations of the Borrower or
the Parent under the Five-Year Credit Agreement.
"PARTICIPANT" has the meaning set forth in SECTION 9.06(d).
"PAYEE" has the meaning set forth in SECTION 9.11.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERFORMANCE L/C" means a Letter of Credit issued hereunder supporting a
Performance Obligation.
"PERFORMANCE OBLIGATION" means (i) performance obligations under supply,
service or construction contracts, including, without limitation, bid and
performance bonds or guaranties relating to the foregoing obligations and
contracts or (ii) letters of credit or bank guarantees that support the
obligations referred to in clause (i).
"PERMITTED ACQUIRED DEBT" means Debt of a Person that (i) was existing at
the time such Person became a Subsidiary or merged into a Subsidiary, (ii) was
not created in contemplation of such event and (iii) remains outstanding no more
than 180 days after the date such Person became a Subsidiary or merged into a
Subsidiary.
"PERMITTED ACQUISITION" means the purchase or other acquisition of all of
the Equity Interests in, or all or substantially all of the property and assets
of, any Person that, upon the consummation thereof, will be beneficially wholly
owned (except for directors' qualifying shares and investments by foreign
nationals mandated by applicable law) directly by the Parent or one or more of
its Wholly Owned Subsidiaries (including, without limitation, as a result of a
merger or consolidation); PROVIDED that the acquisition of Dealer Accounts in
the ordinary course of business shall not constitute, for purposes of this
definition of Permitted Acquisition, the acquisition of all or substantially all
of the property and assets of a Person; and PROVIDED FURTHER that, with respect
to each such purchase or other acquisition: (i) any such newly created or
acquired Subsidiary shall comply with the requirements of SECTION 5.11;
(ii) the lines of business of the Person to be (or the property and assets of
which are to be) so purchased or otherwise acquired shall be substantially the
same lines of business as one or more of the principal businesses of the Parent
and its Subsidiaries in the ordinary course; (iii) such purchase or other
acquisition could not reasonably be expected to have a Material Adverse Effect
(as determined in good faith by the board of directors (or the persons
performing similar functions) of the Parent if (x) the board of directors of the
Parent is otherwise approving such transaction or (y) the aggregate value of the
consideration to be paid by the Parent or a Subsidiary in connection with such
purchase or acquisition exceeds U.S.$25,000,000); (iv) on such date of
determination, total cash and noncash consideration, when aggregated with the
total cash and noncash consideration paid by or on behalf of the Parent and its
Subsidiaries for all other purchases and other acquisitions made by the Parent
and its Subsidiaries after the Effective Date shall not exceed
U.S.$1,250,000,000; PROVIDED that the value of noncash consideration consisting
of common stock of the Parent shall be excluded from the calculations under this
clause (iv); (v) (a) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Default shall have occurred
and be continuing and (b) immediately after giving effect to such purchase or
other acquisition, the Parent and its Subsidiaries shall be in pro forma
compliance with all of the covenants set forth in SECTION 5.09; and (vi) if the
aggregate value of the consideration to be paid by the Parent or a Subsidiary
exceeds
15
U.S.$100,000,000, the Parent shall have delivered to the Administrative Agent,
on behalf of the Banks, at least five Business Days prior to the date on which
any such purchase or other acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the foregoing requirements have
been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition.
"PERMITTED BORROWER DEBT" means Debt in an aggregate principal amount not to
exceed U.S.$1,000,000,000 incurred by the Borrower and, if so elected by the
Borrower, Guaranteed by the Parent or as otherwise permitted under the terms
hereof.
"PERMITTED DEBT SWAPS" means any exchange of any of the Borrower's or the
Parent's publicly traded debt securities for new debt securities that are
registered under the Securities Act of 1933, as amended or eligible for private
placement under Section 4(2) or Regulation S of such Act or Rule 144A of the
Securities Exchange Act of 1934, as amended and that otherwise meet the
requirements set forth in the definition of Permitted Refinancing.
"PERMITTED INVESTMENTS" means Investments that constitute the following:
(i) cash or Cash Equivalents, (ii) trade accounts receivable created or made in
the ordinary course of business, (iii) Permitted Acquisitions, (iv) Investments
in Permitted Project Financings in an aggregate amount not to exceed
U.S.$200,000,000, (v) Investments consisting of noncash consideration received
in connection with any sale, lease, assignment or other disposition of property
or assets permitted hereunder, (vi) promissory notes received by the Parent or
any Subsidiary from customers for the sale of goods or services in the ordinary
course of business, (vii) Intercompany Debt and Investments by the Parent or any
Subsidiary in any Subsidiary; PROVIDED that loans to and other Investments
pursuant to this clause (vii) after the Effective Date in Subsidiaries that are
not Wholly Owned Subsidiaries shall be in an aggregate amount not to exceed
U.S.$50,000,000 outstanding at any time, (viii) Investments in foreign local
bank accounts not inconsistent with the cash management policies of the Parent
on the date hereof, Investments that no longer constitute Cash Equivalents as a
result of the conversion or other modification of Investments that previously
constituted Cash Equivalents, solely to the extent such conversion or
modification has been mandated by operation of any law, regulation or
governmental order in the jurisdiction in which such Investment is held and such
other Investments required by applicable law in a jurisdiction in which a
Subsidiary does business, (ix) the acquisition of Dealer Accounts in the
ordinary course of business, (x) Investments existing on the date hereof;
PROVIDED that the total cash and noncash consideration paid by or on behalf of
the Parent and its Subsidiaries after the Effective Date in connection with such
Investments under earn-outs, holdbacks and similar arrangements for all
purchases and other acquisitions made prior to the Effective Date shall not
exceed U.S.$500,000,000, (xi) Venture Capital Investments made (A) pursuant to
commitments in existence on the date hereof in an aggregate amount not to exceed
U.S.$20,000,000 and (B) after the Effective Date, (xii) Investments in and by a
Permitted Rabbi Trust to the extent made prior to the date hereof or required to
be made pursuant to documents in effect on the date hereof that govern such
Permitted Rabbi Trust and other Investments in Permitted Rabbi Trusts in an
aggregate amount not to exceed U.S.$50,000,000 and Investments thereof by such
Permitted Rabbi Trusts and (xiii) other Investments (in addition to those set
forth above) in an aggregate amount, together with Investments under clauses
(iii) and (xi)(B) hereof, not to exceed U.S.$1,500,000,000; PROVIDED that, with
respect to each Investment made pursuant to this clause (xiii): (a) the making
of such Investment could not reasonably be expected to have a Material Adverse
Effect (as determined in good faith by the board of directors (or persons
performing similar functions) of the Parent if (x) the board of directors of the
Parent is otherwise approving such transaction or (y) the aggregate value of the
consideration to be paid by the Parent or a Subsidiary in connection with such
Investment or acquisition exceeds U.S.$25,000,000); (b) such Investment shall be
in property and assets that are part of, or in lines of business that are,
substantially the same lines of business as one or more of the
16
principal businesses of the Parent and its Subsidiaries (excluding Venture
Capital Investments made pursuant to clause (xi)(B) above); and (c) no Default
shall occur as a result thereof.
"PERMITTED LIENS" means each of the following as to which no execution or
foreclosure shall have been commenced:
(i) Liens for taxes, assessments or charges of any governmental
authority for claims not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(ii) statutory Liens of landlords and carriers', warehousemen's,
mechanics', materialmen's, repairmen's, bankers or other like Liens or Liens
imposed by law and arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(iii) Liens incurred and pledges or deposits in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other social security legislation, other than any Lien imposed by ERISA;
(iv) easements, rights-of-way, covenants, consents, charges,
restrictions and other similar encumbrances (whether or not recorded)
affecting real property which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(v) building restrictions, zoning laws and other similar statutes, laws,
rules, regulations, ordinances and restrictions;
(vi) leases or subleases of real property granted in the ordinary course
of business to others not materially interfering with the business of the
applicable Person, and consistent with past practices;
(vii) Liens securing judgments for the payment of money not constituting
an Event of Default or securing appeal or other surety bonds related to such
judgments in an amount with respect to each such bond not to exceed
U.S.$30,000,000;
(viii) the rights of a lessor of property leased to the Parent or a
Subsidiary under a lease that is not required to be capitalized under GAAP;
and
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods.
"PERMITTED PROJECT FINANCINGS" means (i) the Mexican Project Financing and
(ii) project financings of assets acquired or constructed after the date hereof
by a corporation or other limited liability entity that either is not a
Subsidiary or is a Subsidiary the sole assets of which consist of the project
assets or Investments in the entity that owns the project assets (such
Subsidiary being an "SPV"), which project financing is not Guaranteed by, or
otherwise recourse to, the Parent or any Subsidiary other than an SPV and which
project financing does not create a risk of material liabilities to the Parent
and the Subsidiaries other than an SPV; PROVIDED, HOWEVER, that, for purposes of
the foregoing definition, a limited recourse pledge of the Equity Interests held
by the Parent or a Subsidiary in an SPV to secure Debt of such SPV otherwise
permitted hereunder shall not be considered to constitute recourse to the Parent
or such Subsidiary.
17
"PERMITTED RABBI TRUSTS" means a "rabbi trust" or similar arrangement
consistent with the Parent and the Subsidiaries' past practices.
"PERMITTED RECEIVABLES TRANSACTION" means any sale or sales of, refinancing
of and/or financing secured by, any accounts receivable of the Parent and/or any
of its Subsidiaries (the "RECEIVABLES") pursuant to which the Parent and its
Subsidiaries realize aggregate net proceeds of not more than U.S.$1,000,000,000
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 U.S.$1,000,000,000.
"PERMITTED REFINANCINGS" means Permitted Borrower Debt, Permitted Debt Swaps
and any refinancings, refundings, renewals or extensions of any Debt, in each
case to the extent that (i) the amount of the new Debt permitted hereunder as a
Permitted Refinancing does not exceed (x) the amount of the original Debt plus
(y) an amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, for such refinancing, (ii) other than in
the case of a Permitted Debt Swap, the original Debt matures prior to
December 31, 2004, (iii) in the case of a Permitted Debt Swap, the maturity of
the new Debt shall not be earlier than the original Debt, (iv) other than in the
case of Permitted Borrower Debt, there are no obligors or issuers of the new
Debt other than (x) the obligors and issuers party to the original Debt prior to
such refinancing, refunding, renewal or extension and (y) the Parent and any
Subsidiary of which any of the obligors or issuers of the original Debt are
Subsidiaries; (v) no Liens are granted to the holders of the new Debt in
addition to those granted to the holders of the original Debt and (vi) the
Borrower confirms to the Administrative Agent at the time of incurrence of the
new Debt that its proceeds are intended to be applied to a Permitted Refinancing
and such proceeds are applied (x) other than in the case of Permitted Borrower
Debt, to repay, repurchase or defease the original Debt upon or within three
months after the incurrence of such new Debt or (y) to reimburse the Parent or
the relevant Subsidiary for repayments, repurchases or defeasances of original
Debt after the Effective Date and, other than in the case of Permitted Borrower
Debt, within three months prior to the incurrence of such new Debt.
"PERMITTED SECURITIZATIONS" means securitizations of Dealer Accounts
effected by transfer of such Dealer Accounts and the receivables, payment
intangibles and general intangibles associated therewith to a corporation or
other limited liability entity that either is not a Subsidiary or is a
Subsidiary the assets of which consist of Dealer Accounts and rights and
obligations related thereto (such Subsidiary being a "SECURITIZATION VEHICLE")
and the sale by such Securitization Vehicle of Dealer Accounts and the
receivables, payment intangibles and general intangibles associated therewith,
or interests therein, or the borrowing by such Securitization Vehicle against
the value of such Dealer Accounts and the receivables, payment intangibles and
general intangibles associated therewith, the payment of principal and interest
of which is not Guaranteed by, and which securitization is not otherwise
recourse to, the Parent or any Subsidiary other than a Securitization Vehicle;
PROVIDED, HOWEVER, that, for purposes of the foregoing definition, a limited
recourse pledge of the Equity Interests held by the Parent or a Subsidiary in a
Securitization Vehicle to secure Debt or other obligations of such
Securitization Vehicle otherwise permitted hereunder shall not be considered to
constitute recourse to the Parent or such Subsidiary; and PROVIDED FURTHER that
the obligation of the Parent or a Subsidiary to perform customary servicing
activities and monitoring activities in respect of transferred Dealer Accounts
and customary representations and warranties as to the nature and existence of
the Dealer Accounts (but not as to their performance or collectibility) by the
transferor Subsidiary shall not constitute recourse for purposes of this
definition.
"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.
18
"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.
"PREFERRED STOCK" means any issue of capital stock of the Parent or any
Subsidiary that is entitled to any preference or priority over any other class
of the issuer's capital stock.
"PRICING SCHEDULE" means the Pricing Schedule attached hereto as
SCHEDULE I.
"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 or, if any such date is not a Business Day, the next succeeding
Business Day.
"RATING AGENCY" means S&P or Moody's.
"RATINGS UPGRADE" means the Borrower's Debt Securities obtaining Debt
Ratings of at least BBB- from S&P and Baa3 from Moody's, stable outlook from
each.
"RECIPIENTS" has the meaning set forth in SECTION 9.14.
"REFINANCING" has the meaning set forth in SECTION 5.07 (and the term
"REFINANCED" has a correlative meaning).
"REGISTER" has the meaning set forth in SECTION 9.06(c).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REMARKETABLE SECURITIES" means the U.S.$750,000,000 6 1/4% Dealer
Remarketable Securities due 2013 issued by the Borrower and guaranteed by the
Parent.
"REQUIRED BANKS" means at any time Banks having at least 51% of the sum of
(i) the Total Outstandings (with the aggregate amount of each Bank's risk
participation and funded participation in L/C Obligations being deemed "held" by
such Bank for purposes of this definition) and (ii) the aggregate unused
Commitments; PROVIDED that the portion of the Total Outstandings and unused
Commitments held or deemed held by any Defaulting Bank shall be excluded for
purposes of making a determination of Required Banks.
"REQUIRED CURRENCY" has the meaning set forth in SECTION 9.11.
"RESPONSIBLE OFFICER" means any of the following: (i) the chairman,
president, chief financial officer, treasurer or secretary of the Parent,
(ii) the treasurer of Tyco International (US) Inc. or (iii) a director or
managing director of the Borrower.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on any
shares of the Parent's or any Subsidiary's capital stock or other Equity
Interest (except to the extent such dividends and distributions are payable
(x) in shares of its capital stock or Stock Equivalents or (y) to the Parent or
any Subsidiary), (ii) any payment (except to the extent payable (x) in shares of
the Parent's or such Subsidiary's capital stock or Stock Equivalents or (y) to
the Parent or any Subsidiary) on account of the
19
purchase, redemption, retirement or acquisition of (a) any shares of the
Parent's or such Subsidiary's capital stock or other Equity Interest or (b) any
option, warrant or other right to acquire shares of the Parent's or such
Subsidiary's capital stock or other Equity Interest or (iii) at all times prior
to a Ratings Upgrade, any payment (except (1) to the extent payable to the
Parent or any Subsidiary or (2) a Permitted Debt Swap) on account of the
repayment, prepayment, purchase, redemption, defeasance, retirement or
acquisition of any Debt of the Parent or any Subsidiary that, by its terms as in
effect on the date hereof, is scheduled to mature after December 31, 2004 other
than (x) a regularly scheduled payment, (y) the reduction of outstandings under
a revolving credit, overdraft or similar facility, but, in the case of the
Five-Year Credit Agreement only, without cancellation or reduction of the
commitments thereunder or (z) the repurchase, redemption, retirement or
acquisition of the Parent's Liquid Yield Option Notes due 2020, ADT
Operations, Inc.'s Liquid Yield Option Notes due 2010, the Borrower's Zero
Coupon Convertible Debentures due 2021 or the Remarketable Securities to the
extent required by the terms of such Debt (other than as a result of a default
thereunder).
"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.
"SALE AND LEASEBACK TRANSACTION" shall mean any arrangement with any Person
providing for the leasing by the Parent or any Subsidiary of any property or
assets (whether such property or assets are now owned or hereafter acquired)
that have been or are to be sold or transferred by the Parent or such Subsidiary
to such Person, other than (i) temporary leases for a term, including renewals
at the option of the lessee, of not more than three years and (ii) leases of
property or assets executed by the time of, or within 180 days after the latest
of, the acquisition or the completion of construction of such property or
assets.
"SEC" means the Securities and Exchange Commission, or any governmental
authority succeeding to any of its principal functions.
"SIGNIFICANT SUBSIDIARY" means, at any date, (i) any Subsidiary of the
Parent as to which the proportionate share attributable to such Subsidiary and
its Subsidiaries of the revenues of the Parent and its Subsidiaries (after
intercompany eliminations) exceeds 2% of the total revenues of the Parent and
its Subsidiaries, determined on a consolidated basis as of the end of the most
recently completed fiscal year or (ii) any other Subsidiary which is an Obligor.
"SPECIFIED CHARGES" means, for any fiscal period, (i) up to an aggregate of
U.S.$500,000,000 of cash restructuring and other charges and U.S.$2,500,000,000
of noncash restructuring charges and other nonrecurring charges of the Parent
and the Subsidiaries, in each case for the period from the Effective Date until
the last day of such fiscal period and (ii) noncash charges for goodwill and
other intangible asset impairments under FASB 142 and 144 of the Parent and the
Subsidiaries for such fiscal period.
"SPREAD TO TREASURIES" means, as of any date of determination, (i) the value
obtained from the "US GOVT EQUIVALENT" field on the Bloomberg Professional
Terminal screen "TYC (Corp) (go)" after selecting the Benchmark Notes followed
by "(Corp) YA (go)" and entering the Average Trading Price in the price field
and then typing "(go)" MINUS (ii) the value on the Bloomberg Professional
Terminal screen "ICUR 2/15/06 (go)", in each case at 10:00 a.m. on such date.
"SSB" means Xxxxxxx Xxxxx Barney Inc.
"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.
20
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company 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 beneficially owned by such Person or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person; unless otherwise specified,
Subsidiary means a Subsidiary of the Parent.
"SUBSIDIARY GUARANTEE" means (i) a Guarantee entered into by a Subsidiary
substantially in the form of EXHIBIT G-1, (ii) the Borrower Subsidiary Guarantee
and (iii) the obligations of the Parent Subsidiary Guarantors under ARTICLE 10.
"SUBSIDIARY GUARANTOR" means, at any time, each of the Parent Subsidiary
Guarantors, the Borrower Subsidiary Guarantors and any other Subsidiary,
including an Additional Subsidiary Guarantor, which at or prior to such time
shall have delivered to the Administrative Agent (i) a Subsidiary Guarantee, a
Borrower Subsidiary Guarantee Supplement or a Joinder Agreement, as applicable,
duly executed by such Subsidiary, (ii) an opinion of counsel for such Subsidiary
(which counsel may be an employee of the Parent or such Subsidiary) reasonably
satisfactory to the Co-Agents with respect to such Borrower Subsidiary Guarantee
Supplement or Joinder Agreement, as applicable, and covering enforceability and
such additional matters relating to such Subsidiary Guarantee, Borrower
Subsidiary Guarantee Supplement or Joinder Agreement as the Co-Agents may
reasonably request and (iii) all documents the Co-Agents may reasonably request
relating to the existence of such Subsidiary, the corporate authority for and
the validity of such Subsidiary Guarantee, Borrower Subsidiary Guarantee
Supplement or Joinder Agreement, as applicable, and any other matters reasonably
determined by the Co-Agents to be relevant thereto, all in form and substance
reasonably satisfactory to the Co-Agents.
"SUBSIDIARY TANGIBLE ASSETS" means, at any time, the total assets of a
Subsidiary LESS all Intangible Assets that would appear on a balance sheet of
such Subsidiary and its Subsidiaries prepared on a consolidated basis in
accordance with GAAP at such time.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person under
(i) a so-called synthetic, off-balance sheet or tax retention lease or (ii) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but that, upon the insolvency or
bankruptcy of such Person, would be characterized as indebtedness of such Person
(without regard to accounting treatment).
"TAXES" has the meaning set forth in SECTION 8.04(a).
"TERMINATION DATE" means January 30, 2004 or, if such day is not a Business
Day, the next preceding Business Day.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans and
all L/C Obligations.
"TYCOM SHIP LEASE PARTICIPATION AGREEMENT" means the Participation Agreement
dated as of October 31, 2000 among C.S. Tycom Reliance Inc., as construction
agent and charterer, the Parent, as guarantor, certain charterers party thereto,
TMG Statutory Trust--2000, as owner, State Street Bank and Trust Company of
Connecticut, National Association, as trustee, the note holders and certificate
holders therein named, Citibank, N.A., as Agent and Xxxxxxx Xxxxx Xxxxxx, Inc.,
Commerzbank AG, and Bayerische Hypo--und Vereinsbank AG,
New York Branch.
"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
21
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.
"UNREIMBURSED AMOUNT" has the meaning set forth in SECTION 2.04(c)(i).
"UNREIMBURSED DRAWING" means any drawing under any Letter of Credit which
has not been reimbursed on the date when made.
"UNREIMBURSED FUNDING" means, with respect to each Bank, such Bank's funding
of its participation in any Unreimbursed Drawing in accordance with its
Commitment Percentage.
"VENTURE CAPITAL INVESTMENTS" means equity Investments of Tyco Sigma
Limited, Tyco Eta Limited, Tyco Holdings (Bermuda) No. 4 Limited, Tyco Group
S.a.r.l., Tyco International Finance Alpha GmbH (Switzerland), US Surgical
Corporation, Tyco Electronics Corporation, Mallinckrodt Inc., Tyco Healthcare
Group LP and Earth Tech Holdings, Inc. in a Person other than a Subsidiary
pursuant to a venture capital transaction.
"WHOLLY OWNED SUBSIDIARY" means any 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 Parent.
22
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 GAAP as
in effect from time to time, applied on a basis consistent (except for changes
concurred in by the Parent's independent public accountants) with the then most
recent audited consolidated financial statements of the Parent and its
Subsidiaries delivered to the Banks; PROVIDED that, if either (i) the Parent
notifies the Co-Agents that the Parent wishes to eliminate the effect of any
change in GAAP or any change in the application of GAAP in the most recent
audited consolidated financial statements that has been concurred in by the
Parent's independent public accountants on the operation of any covenant
contained in ARTICLE 5 or (ii) the Co-Agents notify the Parent that they wish to
effect such an elimination, then the Parent's compliance with such covenant
shall be determined on the basis of GAAP or such application in effect
immediately before the relevant change in GAAP or change in application 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 Parent
and the Co-Agents to reflect such change in GAAP or change in application.
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. The "TYPE" of a Loan (or of a Borrowing comprised of
such Loans) refers to the determination whether a Loan is a Euro-Dollar Loan or
a Base Rate Loan, each of which constitutes a "TYPE."
Section 1.04. LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
Section 1.05. TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to
New York City time.
Section 1.06. CURRENCY EQUIVALENTS GENERALLY. Any amount specified in this
Agreement (other than in ARTICLES 2, 7 and 9) or any of the other Financing
Documents to be in U.S. dollars shall also include the equivalent of such amount
in any currency other than U.S. dollars, such equivalent amount to be determined
at the rate of exchange quoted by Bank of America in Charlotte, North Carolina
at the close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in
New York,
New York for the spot
purchase in the
New York foreign exchange market of such amount in U.S. dollars
with such other currency; PROVIDED that for purposes of compliance with the
provisions of this Agreement specifying a U.S. dollar-denominated limit or
threshold, the U.S. dollar equivalent of any amount in a foreign currency shall
be determined for each action or event that is required to comply with such
limit or threshold on the basis of the rate of exchange in effect on the date of
such action or event (or, in the case of the incurrence of debt securities, the
date of the underwriting agreement therefor and, in the case of a revolving
credit commitment or similar arrangement, the date on which such commitment is
entered into) and the Parent and its Subsidiaries shall not fail to be in
compliance with such limit or threshold in respect of such action or event
solely as a result of exchange rate fluctuations subsequent to such date.
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 pursuant to this SECTION 2.01
23
from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such Bank's
Commitment; PROVIDED, HOWEVER, that after giving effect to any Borrowing,
(i) the Total Outstandings shall not exceed the Commitments and (ii) the
aggregate Outstanding Amount of the Loans of any Bank PLUS such Bank's
Commitment Percentage of the Outstanding Amount of all L/C Obligations shall not
exceed such Bank's Commitment. Within the foregoing limits, the Borrower may
borrow under this Section, repay or, to the extent permitted by SECTION 2.11,
prepay Loans and reborrow at any time prior to the Termination Date under this
SECTION 2.01.
(b) MINIMUM BORROWINGS. Each Borrowing under this SECTION 2.01 shall be in
an aggregate amount of U.S.$10,000,000 or a larger multiple of
U.S.$1,000,000 (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
Administrative Agent written notice in substantially the form of EXHIBIT B-1
hereto (a "NOTICE OF BORROWING") not later than 11:00 a.m. on (1) the date of
each Borrowing comprised of Base Rate Loans and (2) the third Business Day
before each Borrowing comprised of Euro-Dollar Loans, specifying:
(i) the date of such Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Borrowing;
(iii) the initial Type of Loans comprising such Borrowing; and
(iv) in the case of Euro-Dollar Loans, the duration of the initial Interest
Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Each such Notice of Borrowing shall be given by a Responsible Officer of the
Borrower and the satisfaction of the conditions in SECTIONS 3.02(c) and 3.02(d)
shall be confirmed by a Designated Officer in the form of the Bringdown
Certificate attached as Annex A to the Notice of Borrowing and each such Notice
of Borrowing shall be irrevocable when given.
Section 2.03. NOTICE TO BANKS; FUNDING OF LOANS. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's Commitment Percentage (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 1:00 p.m., in federal or
other funds immediately available in
New York City, to the Administrative
Agent's Office.
Unless the Administrative Agent determines that any applicable condition
specified in ARTICLE 3 has not been satisfied or waived in accordance with
SECTION 9.05, the Administrative Agent will make the funds so received from the
Banks available to the Borrower no later than 3:00 p.m. on such date in like
funds as received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower.
Section 2.04. LETTERS OF CREDIT. (a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer
agrees, in reliance upon the agreements of the other Banks set forth in this
SECTION 2.04, (1) from time to time on any Business Day during the period from
the Effective Date until the expiration of the Availability Period, to issue
Letters of Credit for the account of the Borrower, and to amend or renew Letters
of Credit previously issued by it, in accordance with SUBSECTION (b) below, and
(2) to honor drafts under the Letters of Credit; and (B) the
24
Banks severally agree to participate in Letters of Credit issued for the account
of the Borrower and fund Unreimbursed Drawings with respect thereto; PROVIDED
that no L/C Issuer shall be obligated to make any L/C Credit Extension with
respect to any Letter of Credit and no Bank shall be obligated to participate in
any Letter of Credit if, as of the date of such L/C Credit Extension, (x) the
Total Outstandings would exceed the Commitments, (y) the aggregate Outstanding
Amount of the Loans of any Bank PLUS such Bank's Commitment Percentage of the
Outstanding Amount of all L/C Obligations would exceed such Bank's Commitment or
(z) the Outstanding Amount of the L/C Obligations would exceed the Letter of
Credit Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. The underlying documentation with respect
to Existing Letters of Credit shall be deemed to be amended to the extent
necessary to conform to the provisions set forth herein and thereafter all
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Effective Date shall be subject to and governed by the
terms and conditions hereof, including, without limitation, SECTION 2.04(k). The
Borrower and each Person that becomes, in accordance with the terms hereof, an
L/C Issuer agree that any letter of credit issued by such Person for the account
of the Borrower that the Borrower and such L/C Issuer agree shall be treated as
a Letter of Credit issued under this Agreement and that is identified to the
Administrative Agent (including whether such letter of credit is a Performance
L/C or Financial L/C) at the time such Person becomes an L/C Issuer or, in the
case of Bank of America, promptly after the Effective Date shall, subject to the
satisfaction of the conditions specified in SECTION 3.02 and the immediately
preceding sentence, be deemed an Existing Letter of Credit hereunder. Each such
Person that becomes an L/C Issuer shall confirm to the Administrative Agent on
such date that it has received evidence satisfactory to it from the Borrower
that each such Existing Letter of Credit is correctly identified to the
Administrative Agent as a Performance L/C or Financial L/C, as the case may be.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any governmental authority or
arbitrator shall by its terms purport to enjoin or restrain such L/C
Issuer from issuing such Letter of Credit, or any law applicable to such
L/C Issuer or any request or directive (whether or not having the force
of law) from any governmental authority with jurisdiction over such L/C
Issuer shall prohibit, or request that such L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which such L/C Issuer is not otherwise compensated hereunder) not in
effect on the Effective Date or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the
Effective Date and which such L/C Issuer in good xxxxx xxxxx material to
it;
(B) subject to SECTION 2.04(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of
issuance;
(C) the issuance of such Letter of Credit would violate one or more policies
of such L/C Issuer generally applicable to account parties;
(D) such Letter of Credit is in an initial amount greater than
U.S.$50,000,000; or
(E) such Letter of Credit is to be used for a purpose other than supporting
the performance of a Person under a contract or agreement in the ordinary
course of business or is to be denominated in a currency other than U.S.
dollars.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of
Credit if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended
25
form under the terms hereof or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
(b) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT; AUTO-RENEWAL
LETTERS OF CREDIT. (i) Each Letter of Credit shall be issued or amended,
as the case may be, upon delivery by the Borrower delivered to an L/C
Issuer (with a copy to the Administrative Agent) of a notice of issuance
in the form set forth on EXHIBIT B-2 (a "NOTICE OF ISSUANCE")
appropriately completed and signed by a Responsible Officer of the
Borrower together with (x) the confirmation by a Designated Officer in
the form of a Bringdown Certificate attached as Annex A thereto, as to
the satisfaction of the conditions in SECTIONS 3.02(c) and 3.02(d) and
(y) a Letter of Credit Application appropriately completed and signed by
a Responsible Officer of the Borrower, attached as Annex B thereto. The
Notice of Issuance and annexes thereto must be received by such L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as such L/C Issuer may
agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, the
Letter of Credit Application shall specify in form and detail
satisfactory to such L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents, if any, to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as such L/C Issuer may
reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, the Letter of Credit Application shall
specify in form and detail satisfactory to such L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit Application, the
relevant L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application and the Notice of Issuance
from the Borrower and, if not, such L/C Issuer will provide the
Administrative Agent with a copy thereof. Upon receipt by such L/C
Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account
of the Borrower or enter into the applicable amendment, as the case may
be, in each case in accordance with such L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each
Letter of Credit, each Bank shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from such L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the
product of such Bank's Commitment Percentage TIMES the amount of such
Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, any L/C Issuer shall, subject to SECTION 2.04(a), issue a
Letter of Credit that has automatic renewal provisions (each, an
"AUTO-RENEWAL LETTER OF CREDIT"); PROVIDED that any such Auto-Renewal
Letter of Credit must permit such L/C Issuer to prevent any such
renewal at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "NONRENEWAL NOTICE
DATE") in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued; PROVIDED that if such L/C Issuer
decides not to renew such Auto-Renewal Letter of Credit, such L/C
Issuer shall notify the Administrative Agent and the Borrower no later
than the Nonrenewal Notice Date of such nonrenewal. Unless otherwise
directed by such L/C Issuer,
26
the Borrower shall not be required to make a specific request to such
L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit
has been issued, the Banks shall be deemed to have authorized (but may
not require) such L/C Issuer to permit the renewal of such Letter of
Credit at any time to an expiry date not later than twelve months after
the date of such renewal; PROVIDED, HOWEVER, that such L/C Issuer shall
not permit any such renewal if (A) the existing expiry date is after
the end of the Availability Period, (B) such L/C Issuer has determined
that it would have no obligation at such time to issue such Letter of
Credit in its renewed form under the terms hereof (by reason of the
provisions of SECTION 2.04(a) or otherwise) or (C) such L/C Issuer has
received notice (which may be by telephone or in writing) on or before
the day that is two Business Days before the Nonrenewal Notice Date
(1) from the Administrative Agent that the Required Banks have elected
not to permit such renewal or (2) from the Administrative Agent, any
Bank or the Borrower that one or more of the applicable conditions
specified in SECTION 3.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to
a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the relevant L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS. (i) Upon each
of (x) receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit and (y) the date of any
payment by such L/C Issuer under a Letter of Credit (an "HONOR DATE"),
the relevant L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. The Borrower shall reimburse such L/C
Issuer through the Administrative Agent in an amount equal to the
amount of such drawing no later than three Business Days after the
Honor Date. If the Borrower fails to reimburse such L/C Issuer on the
Honor Date, the amount of the unreimbursed drawing (the "UNREIMBURSED
AMOUNT") shall bear interest at the Base Rate plus the Base Rate
Margin, and if not reimbursed within such three Business Days
thereafter, at the Default Rate, payable on demand.
(ii) If so directed by the L/C Issuer on the Honor Date or at any time
thereafter and prior to the Borrower's reimbursement of the
Unreimbursed Amount, the Administrative Agent shall promptly notify
each Bank of the Honor Date, the Unreimbursed Amount and the amount of
such Bank's Commitment Percentage thereof and shall request each Bank
to make its Commitment Percentage of such Unreimbursed Amount available
in accordance with sub-paragraph (iii) below. Any notice given by an
L/C Issuer or the Administrative Agent pursuant to
SECTION 2.04(c)(i) or this SECTION 2.04(c)(ii) may be given by
telephone if immediately confirmed in writing; PROVIDED that the lack
of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.
(iii) Each Bank (including any Bank acting as an L/C Issuer) shall upon any
notice pursuant to SECTION 2.04(c)(ii) make funds available to the
Administrative Agent for the account of the relevant L/C Issuer at the
"Administrative Agent's Office" in an amount equal to its Commitment
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent,
whereupon, each Bank that so makes funds available with respect to the
Unreimbursed Amount shall be deemed to have made an Unreimbursed
Funding in such amount and interest thereon shall thereafter accrue in
favor of such Bank. The Administrative Agent shall remit the funds so
received from the Banks to the relevant L/C Issuer.
(iv) Each Bank's obligation to fund Unreimbursed Fundings to reimburse the
L/C Issuers for amounts drawn under Letters of Credit, as contemplated
by this SECTION 2.04(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any
27
set-off, counterclaim, recoupment, defense or other right which such
Bank may have against any L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a
Default; or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing. No such funding of an Unreimbursed
Funding shall relieve or otherwise impair the obligation of the
Borrower to reimburse each L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(v) If any Bank fails to make available to the Administrative Agent for the
account of the relevant L/C Issuer any amount required to be paid by
such Bank pursuant to the foregoing provisions of this SECTION 2.04(c)
by the time specified in SECTION 2.04(c)(iii), such L/C Issuer shall be
entitled to recover from such Bank (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A certificate of
such L/C Issuer submitted to any Bank (through the Administrative Agent)
with respect to any amounts owing under this clause (v) shall be
conclusive absent manifest error.
(d) REPAYMENT OF PARTICIPATIONS. (i) At any time after an L/C Issuer has
made a payment under any Letter of Credit and has received from any Bank
such Bank's Unreimbursed Funding in respect of such payment in accordance
with SECTION 2.04(c), if the Administrative Agent receives for the
account of such L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will
distribute to such Bank its Commitment Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Bank's Unreimbursed Funding was outstanding) in the
same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
an L/C Issuer pursuant to SECTION 2.04(c)(i) is required to be returned
under any of the circumstances described in SECTION 9.04(b) (including
pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Bank shall pay to the Administrative Agent for the
account of such L/C Issuer its Commitment Percentage thereof on demand
of the Administrative Agent, PLUS interest thereon from the date of
such demand to the date such amount is returned by such Bank, at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to reimburse each
L/C Issuer for each drawing under each Letter of Credit and to repay each
Unreimbursed Funding shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), such L/C Issuer
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein
28
being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by such L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by such
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Bankruptcy Law;
(v) any exchange, release or nonperfection of any collateral, or any release
or amendment or waiver of or consent to departure from the Subsidiary
Guarantees or any other guarantee, for all or any of the Obligations of
the Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the
Borrower;
PROVIDED that nothing in this SECTION 2.04(e) shall be deemed a waiver of
any rights of the Borrower under applicable law or the proviso to
SECTION 2.04(f).
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the relevant L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against such L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUERS. Each Bank and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuers shall not have any
responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. None of the L/C Issuers, any Agent-Related Person nor any of
the respective correspondents, participants or assignees of the L/C
Issuers shall be liable to any Bank for (i) any action taken or omitted
in connection herewith at the request or with the approval of the Banks
or the Required Banks, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit, Notice of Issuance or Letter
of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; PROVIDED, HOWEVER, that this assumption is not
intended to, and shall not, preclude the Borrower pursuing such rights
and remedies as it may have against the beneficiary or transferee at law
or under any other agreement. None of the L/C Issuers, any Agent-Related
Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuers, shall be liable or responsible for any of
the matters described in clauses (i) through (vi) of SECTION 2.04(e);
PROVIDED, HOWEVER, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against an L/C Issuer, and
such L/C Issuer may be liable to the Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower, which the Borrower proves were caused
by such L/C Issuer's willful misconduct or gross negligence or such L/C
Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
or document(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance, and not in limitation, of the
foregoing, the L/C Issuers may accept documents
29
that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the
contrary, and the L/C Issuers shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason.
(g) CASH COLLATERAL. If, as of the date of expiration of the Availability
Period, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash
Collateralize each such Letter of Credit (in an amount equal to the L/C
Obligation in respect of such Letter of Credit determined as of the date
of such expiration of the Availability Period). For purposes hereof,
"CASH COLLATERALIZE" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the relevant L/C Issuer and the
Banks, as collateral for each L/C Obligation, cash or deposit account
balances pursuant to agreements (each, a "CASH COLLATERAL ACCOUNT
AGREEMENT") substantially in the form attached hereto as EXHIBIT H.
Derivatives of such term have corresponding meanings. The Borrower hereby
grants to the Administrative Agent, for the benefit of the relevant L/C
Issuer and the Banks, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in the Cash Collateral Account(s). If at
any time the Administrative Agent determines that any funds held as Cash
Collateral are subject to any right or claim of any Person other than the
Administrative Agent or that the total amount of such funds with respect
to each outstanding Letter of Credit is less than the amount of the L/C
Obligation in respect of such Letter of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the
Cash Collateral Account(s), an amount equal to the excess of (a) such
aggregate Outstanding Amount with respect to such Letter of Credit over
(b) the total amount of funds, if any, then held as Cash Collateral with
respect to such Letter of Credit that the Administrative Agent determines
to be free and clear of any such right and claim. Upon the drawing of any
Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable law, to
reimburse the L/C Issuer of such Letter of Credit.
(h) APPLICABILITY OF ISP98. Unless otherwise expressly agreed by an L/C
Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), the rules of
the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance) shall apply to each Letter of
Credit.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to the Administrative
Agent for the account of each Bank in accordance with its Commitment
Percentage a letter of credit fee for each Letter of Credit equal to the
L/C Margin for such Letter of Credit TIMES the (x) daily maximum amount
available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit) or if
applicable, (y) daily maximum amount then available to be drawn under
such Letter of Credit if such amount may be automatically reduced under
the terms of such Letter of Credit. Such letter of credit fees shall be
computed on a quarterly basis in arrears. Such letter of credit fees
shall be due and payable on each Quarterly Payment Date, commencing with
the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. If
there is any change in the L/C Margin during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied
by the L/C Margin for such Letter of Credit separately for each period
during such quarter that such L/C Margin was in effect.
30
(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrower shall pay directly to each L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit issued by it
in the amounts and at the times agreed to by the Borrower and such L/C
Issuer. In addition, the Borrower shall pay directly to each L/C Issuer
for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of such L/C
Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.
(k) CONFLICT WITH LETTER OF CREDIT APPLICATION. Notwithstanding anything to
the contrary set forth in a Letter of Credit Application, in the event of
any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.
(l) L/C REPORTS. Each L/C Issuer shall, on the first Business Day of each
week, furnish to the Administrative Agent and the Borrower a written
report setting forth a summary of the issuance date and Expiration Date
of each Letter of Credit issued by such L/C Issuer during the previous
week, whether each such Letter of Credit is a Performance L/C or a
Financial L/ C, the Outstanding Amount of the L/C Obligations for such
Letters of Credit and drawings under such Letters of Credit during such
time, which report shall be substantially in the form attached hereto as
EXHIBIT J. Each L/C Issuer shall also notify the Administrative Agent in
writing of any increases or decreases in the Outstanding Amount of the
L/C Obligations for Letters of Credit issued by such L/C Issuer within
one Business Day of any such increase or decrease. Each L/C Issuer that
is the issuer of an Existing Letter of Credit confirms that it has
received evidence satisfactory to it from the Borrower that such Letter
of Credit is correctly identified on Schedule III as a Performance L/C or
Financial L/C, as the case may be.
Section 2.05. PROMISSORY NOTES. (a) Each Bank may, by notice to the Borrower
and the Administrative Agent, request 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 and such Bank's Commitment Percentage of the L/C
Obligations. Each such Promissory Note shall be in substantially the form of
Exhibit A hereto. 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.
(b) Each Bank shall record the date, amount and Type of each Loan made by
it, the date and amount of each Unreimbursed Drawing and the date and
amount of each payment of principal or reimbursement 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 and Unreimbursed
Drawing 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 2.06. MATURITY OF LOANS. Each Loan shall mature, and the principal
amount thereof shall be due and payable (together with interest accrued
thereon), on the Termination Date.
Section 2.07. INTEREST RATES; MARKET-BASED PREMIUM. (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 for each such day plus the Base Rate Margin. Such
interest shall be payable at maturity and quarterly in arrears on each Quarterly
Payment Date prior to maturity. Any overdue principal of or interest on any Base
Rate Loan shall bear
31
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 Default Rate.
(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 Rate for
such Interest Period plus the Euro-Dollar Margin for each such day. 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.
(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 interest
rate applicable to such Loan on the day before such payment was due and
(ii) the Euro-Dollar Margin for such day plus the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which one day
(or, if such amount due remains unpaid more than three Business Days,
then for such other period of time not longer than six months as the
Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to Bank of America is
offered to Bank of America in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in
SECTION 8.01 shall exist, at a rate per annum equal to the Default Rate).
(d) On each Quarterly Payment Date and on the later of the Termination Date
and the date of payment in full of all Obligations under the Financing
Documents, the Borrower shall pay to the Administrative Agent for the
account of each Bank in accordance with its Commitment Percentage
additional interest equal to the Market-Based Premium, if any, applicable
in respect of the preceding calendar quarter or other period TIMES the
average daily Outstanding Amount during such quarter or other period of
the Loans and the L/C Obligations TIMES the number of days in such
quarter or other period DIVIDED by 360. The Market-Based Premium shall be
payable in addition to any then applicable interest rate or letter of
credit fee with respect to Base Rate Loans, Euro-Dollar Loans and L/C
Obligations.
Section 2.08. FEES. (a) COMMITMENT FEE. The Borrower shall pay to the
Administrative Agent for the account of each Bank in accordance with its
Commitment Percentage, a commitment fee equal to the Commitment Fee Rate TIMES
the actual daily amount by which Commitments exceed the sum of (i) the
Outstanding Amount of Loans and (ii) (x) the Outstanding Amount of L/C
Obligations MINUS (y) all then outstanding Unreimbursed Drawings; PROVIDED,
HOWEVER, that any commitment fee accrued with respect to any of the Commitments
of a Defaulting Bank during the period prior to the time such Bank became a
Defaulting Bank and unpaid at such time shall not be payable by the Borrower so
long as such Bank shall be a Defaulting Bank except to the extent that such
commitment fee shall otherwise have been due and payable by the Borrower prior
to such time; and PROVIDED FURTHER that no commitment fee shall accrue on any of
the Commitments of a Defaulting Bank so long as such Bank shall be a Defaulting
Bank. The commitment fee shall accrue at all times during the Availability
Period, including at any time during which one or more of the conditions in
ARTICLE 3 is not met. Accrued fees under this Section shall be payable quarterly
in arrears on each Quarterly Payment Date commencing with the first such date to
occur after the Effective Date and upon the date of termination of the
Commitments in their entirety.
(b) OTHER FEES. The Borrower shall pay to the Joint Lead Arrangers and the
Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee
32
Letter and shall pay the other fees set forth in the Fee Letter in the
amount and at the times specified therein. Each such fee shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
Section 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower
may, upon at least three Business Days' notice to the Administrative Agent,
which notice must be received by the Administrative Agent not later than
11:00 a.m., (i) terminate the Commitments and the Letter of Credit Sublimit at
any time, if no Loans or Letters of Credit are outstanding at such time, or
(ii) ratably reduce from time to time by an aggregate amount of U.S.$10,000,000
or any larger multiple thereof, the aggregate amount of (x) the Commitments in
excess of the aggregate outstanding amount of the Loans or (y) the Letter of
Credit Sublimit in excess of the aggregate outstanding amount of Letters of
Credit. Each such notice shall be given by a Responsible Officer of the Borrower
and shall be irrevocable when given. Promptly after receiving a notice pursuant
to this Section, the Administrative Agent shall notify each Bank of the contents
thereof. All commitment fees accrued until the effective date of any termination
of the Commitments under this SECTION 2.09 shall be paid on the effective date
of such termination.
Section 2.10. MANDATORY TERMINATION OF COMMITMENTS. (a) The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
(b) If after giving effect to any reduction or termination of unused
Commitments under SECTION 2.09, the Letter of Credit Sublimit exceeds the
amount of the Commitments, such Letter of Credit Sublimit shall be
automatically reduced by the amount of such excess.
Section 2.11. PREPAYMENTS. (a) OPTIONAL. (i) Subject in the case of
Euro-Dollar Loans to SECTION 2.13, the Borrower may upon notice to the
Administrative Agent not later than 10:30 a.m. (i) on the Business Day preceding
the date of prepayment of any Group of Loans comprised of Base Rate Loans or
(ii) the third Business Day before the date of prepayment of any Group of Loans
comprised of Euro-Dollar Loans, prepay any such Group of Loans (or Borrowing),
in each case in whole at any time, or from time to time in part in amounts
aggregating U.S.$10,000,000 or a larger multiple of U.S.$1,000,000, by paying
the principal amount to be prepaid together with, in the case of Euro-Dollar
Loans, accrued interest thereon to but not including the date of prepayment.
Each such notice shall be given by a Responsible Officer of the Borrower, shall
be irrevocable when given and shall specify the date of such prepayment and the
amount and Type of Loans to be prepaid. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such Group
of Loans.
(ii) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative 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.
(b) MANDATORY. If for any reason the Total Outstandings at any time exceed
the Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; PROVIDED, HOWEVER, that the Borrower shall
not be required to Cash Collateralize the L/C Obligations pursuant to
this SECTION 2.11(b) unless after the prepayment in full of the Loans the
Total Outstandings exceed the Commitments then in effect.
Section 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) All payments to be made
by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. The Borrower shall make each
payment of principal of, and interest on, the Loans and Unreimbursed Amounts and
of fees hereunder not later than 2:00 p.m. on the date when due, in federal or
other
33
funds immediately available in
New York City, to the Administrative Agent at its
address specified in or pursuant to SECTION 9.01. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Administrative Agent for the respective accounts of the Banks. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue; PROVIDED that payment shall be deemed received by
2:00 p.m. if the Borrower provides the Administrative Agent with written
confirmation of a Federal Reserve Bank of New York reference number no later
than 4:00 p.m. on such Business Day. Whenever any payment of principal of, or
interest on, the Base Rate Loans, Unreimbursed Amounts or of fees shall be due
on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding 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
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
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 Borrower or any Bank has notified the Administrative Agent,
prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Bank, as the
case may be, will not make such payment, the Administrative Agent may
assume that the Borrower or such Bank, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact made to
the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Bank shall forthwith
on demand repay to the Administrative Agent the portion of such assumed
payment that was made available to such Bank in immediately available
funds, together with interest thereon in respect of each day from and
including the date such amount was made available by the Administrative
Agent to such Bank to the date such amount is repaid to the
Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Bank failed to make such payment, such Bank shall forthwith on
demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Bank pays such amount to the Administrative Agent, then
such amount shall constitute such Bank's Loan included in the
applicable Borrowing. If such Bank does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall repay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Bank from its obligation to
fulfill its Commitment or to prejudice any rights that the
Administrative Agent or the Borrower may have against any Bank as a
result of any default by such Bank hereunder.
34
A notice of the Administrative Agent to any Bank or the Borrower with
respect to any amount owing under this SUBSECTION (B) shall be conclusive,
absent manifest error.
(c) The obligations of the Banks hereunder to make Loans and to fund
participations in Letters of Credit are several and not joint. The
failure of any Bank to make any Loan or to fund any such participation on
any date required hereunder shall not relieve any other Bank of its
corresponding obligation to do so on such date, and no Bank shall be
responsible for the failure of any other Bank to so make its Loan or
purchase its participation.
(d) If any Bank makes available to the Administrative Agent funds for any
Loan to be made by such Bank as provided in the foregoing provisions of
this ARTICLE 2, and such funds are not made available to the Borrower by
the Administrative Agent because the conditions to the applicable Credit
Extension set forth in ARTICLE 3 are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return
such funds (in like funds as received from such Bank) to such Bank,
without interest.
(e) Nothing herein shall be deemed to obligate any Bank to obtain the funds
for any Loan in any particular place or manner or to constitute a
representation by any Bank that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
Section 2.13. 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),
2.11(a) or 2.16 (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 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 2.14. COMPUTATION OF INTEREST AND FEES. (a) Interest and fees
hereunder shall be computed on the basis of a year of 360 days for Euro-Dollar
Loans and 365 days (or 366 days in a leap year) for Base Rate Loans and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) All determinations and computations of interest rates hereunder,
including, without limitation, the Market-Based Premium, by the
Administrative Agent, any L/C Issuer or the Co-Agents shall be conclusive in
the absence of manifest error.
Section 2.15. 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 Euro-Dollar Rate divided by (B) one MINUS the Euro-Dollar
Reserve Percentage over (ii) the applicable Euro-Dollar Rate. Any Bank wishing
to require payment of such additional interest (x) shall so notify the Borrower
and the Administrative 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 Business Days after the giving of such notice, and (y) shall notify
the Borrower at least five 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.
35
Section 2.16. 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 2.16(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 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 2.13 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 Administrative Agent not later than 11:00 a.m. on the
third Business Day before the conversion or continuation selected in such notice
is to be effective. A Notice of Interest Rate Election shall be given by a
Responsible Officer of the Borrower, shall be irrevocable when given and 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 of Loans and (ii) the portion to which
such Notice of Interest Rate Election applies, and the remaining portion to
which it does not apply, are each at least U.S.$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 Loans comprised 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 2.16(a) above;
(iii) if the Loans comprising such Group of Loans 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 Administrative 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 Loans comprised of
Euro-Dollar Loans created or continued as a result of such election would be
less than U.S.$10,000,000 or (ii) a Default shall have occurred and be
continuing when the Borrower delivers notice of such election to the
Administrative Agent.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than ten Interest Periods in effect.
36
ARTICLE 3
CONDITIONS
Section 3.01. EFFECTIVENESS. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with SECTION 9.05):
(a) receipt by the Co-Agents of counterparts of this Agreement, the
Borrower Subsidiary Guarantee and the other Financing Documents signed by
each of the parties hereto and thereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the
Co-Agents in form satisfactory to them of telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party) and a Promissory Note executed by the Borrower in favor of each
Bank requesting a Promissory Note;
(b) receipt by the Co-Agents of an opinion of each of (i) the general
counsel of the Parent, substantially in the form of EXHIBIT C-1 hereto,
(ii) Beghin & Xxxxxx in association with Xxxxx & Overy, special Luxembourg
counsel for the Borrower, substantially in the form of EXHIBIT D hereto,
(iii) Xxxxxxx, Xxxxxxxx & Xxxxx, special Bermuda counsel for the Parent,
substantially in the form of EXHIBIT E hereto, (iv) Xxxxxx, Xxxx & Xxxxxxxx
LLP, special New York counsel to the Borrower and the Parent, substantially
in the form of EXHIBIT C-2 hereto and (v) counsel to each Subsidiary that is
or will be a Subsidiary Guarantor on the Effective Date, substantially in
the form of EXHIBIT K hereto;
(c) receipt by the Co-Agents of an opinion of Shearman & Sterling,
special counsel for the Co-Agents in form and substance satisfactory to the
Co-Agents;
(d) receipt by the Co-Agents of all documents the Co-Agents may
reasonably request relating to the existence of the Borrower, the Parent and
the Subsidiary Guarantors, the corporate authority for and the validity of
this Agreement, the Promissory Notes and the other Financing Documents, and
any other matters reasonably determined by the Co-Agents to be relevant
hereto, all in form and substance reasonably satisfactory to the Co-Agents;
(e) the Borrower shall have issued bonds convertible into common equity
of the Parent (the "CONVERTIBLE BONDS") and shall have received no less than
U.S.$2,500,000,000 in gross proceeds from the sale thereof;
(f) the Borrower's Debt Securities shall have Debt Ratings of at least
BBB- by S&P and Ba2 by Xxxxx'x and neither S&P nor Xxxxx'x shall have
announced any intention to downgrade such securities;
(g) receipt by the Co-Agents of the consolidated balance sheet of the
Parent and its Subsidiaries as of September 30, 2002 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
(without qualification) in a manner satisfactory to the Co-Agents and
complying with the applicable rules and regulations promulgated by the SEC,
which have been, in each case, delivered to and filed with the SEC on
Form 10-K in accordance with the rules and regulations promulgated by the
SEC;
(h) except as publicly disclosed prior to January 1, 2003 in the
Parent's annual report on Form 10-K for the fiscal year ended September 30,
2002, the Parent shall not have made any material restatement of its
consolidated balance sheet as of September 30, 2001 and the related
consolidated statements of income, of shareholders' equity and of cash flows
for such fiscal year or for any prior period;
(i) (A) there shall exist no material adverse change in any Existing
Litigation disclosed to the Co-Agents prior to January 1, 2003 and
(B) since January 1, 2003 there shall be no other material action, suit or
proceeding pending against or to the knowledge of the Parent threatened
against or
37
affecting the Parent or any of its Subsidiaries, except for new
shareholders' derivative litigation or shareholders' class actions covering
the same facts as Existing Litigation;
(j) there shall not have occurred any material adverse development,
event or change in financial statement reporting required by any regulatory
or governmental agency (including, without limitation, the SEC) or in any
other disclosure matter;
(k) receipt by the Co-Agents of a copy of the Parent's report on
Form 8-K dated December 30, 2002 containing the results to such date of
(i) the forensic accounting review conducted by Xxxxxx Xxxx & Xxxxxx and
(ii) the legal review conducted by Xxxxx, Schiller & Flexner LLP with
respect to the matters described in Item 2 of the Parent's Report on
Form 10-Q for the quarter ended June 30, 2002;
(l) receipt by the Co-Agents of a certificate of a Designated Officer
certifying the accuracy of information regarding Debt of the Parent and its
Subsidiaries existing on the date hereof, Liens of the Parent and its
Subsidiaries existing on the date hereof, Investments of the Parent and its
Subsidiaries existing on the date hereof and the ownership structure of the
Parent and certain of its Subsidiaries, in form and substance satisfactory
to the Co-Agents; and
(m) arrangements satisfactory to the Co-Agents shall have been made for
the payment of all fees and accrued expenses required to be paid on or
before the Effective Date;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
February 14, 2003.
Section 3.02. BORROWINGS. The obligation of any Bank to make a Loan on the
occasion of any Borrowing or of any L/C Issuer to make an L/C Credit Extension
is subject to the satisfaction (or waiver in accordance with SECTION 9.05) of
the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing and, if
applicable, by such L/C Issuer of a notice of issuance as required by
SECTION 2.02 or 2.04, as the case may be;
(b) the fact that, immediately after such Borrowing or issuance, the
aggregate outstanding amount of Letters of Credit will not exceed the Letter
of Credit Sublimit and the aggregate outstanding amount of all Letters of
Credit and the Loans will not exceed the aggregate amount of the
Commitments;
(c) the fact that, immediately before and after such Borrowing or
issuance, no Default shall have occurred and be continuing; and
(d) the fact that (i) the representations and warranties of each Obligor
contained in the Financing Documents that, by their terms are subject to a
materiality standard, shall be true on and as of the date of such Borrowing
or issuance and (ii) all other representations and warranties of each
Obligor shall be true in all material respects on and as of the date of such
Borrowing or issuance, in each case except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date.
Each Borrowing or issuance hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing or issuance as to the
facts specified in SUBSECTIONS (b), (c) and (d) of this Section.
38
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Obligor party hereto represents and warrants to the Agents and the
Banks that:
Section 4.01. CORPORATE EXISTENCE AND POWER. Each Obligor is an entity duly
organized and validly existing under the laws of its jurisdiction of
organization. Each 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 Obligor of this Agreement and
the other Financing Documents to which it is or is to be a party: (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 material Debt of such
Obligor or any other material agreement, judgment, injunction, order, decree or
other instrument binding upon such Obligor or any Significant Subsidiary. No
Obligor or any of its Subsidiaries is in violation of any applicable law or
regulation that, nor is any Obligor in violation of any material agreement, the
violation or breach of which, could reasonably be expected to have a Material
Adverse Effect.
Section 4.03. BINDING EFFECT. This Agreement has been, and each other
Financing Document, when delivered hereunder, will have been, duly executed and
delivered by each Obligor that is party hereto or thereto. This Agreement
constitutes a valid and binding agreement of such Obligor, and each other
Financing Document, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of each Obligor party
thereto.
Section 4.04. FINANCIAL INFORMATION. (a) The consolidated balance sheet of
the Parent and its Subsidiaries as of September 30, 2002 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 Parent's 2002 Form 10-K, a copy of which has been delivered to each
of the Banks, fairly present, in conformity with GAAP, the consolidated
financial position of the Parent and its Subsidiaries as of such date and their
consolidated results of operations and cash flows for such period.
(b) Since September 30, 2002, there has been no material adverse change
in the business, assets, liabilities (actual or contingent, other than
contingent obligations arising in the ordinary course of business), results
of operations or condition (financial or otherwise) of the Parent and its
Subsidiaries, considered as a whole.
(c) All financial projections concerning the Parent and the Borrower
that have been delivered to the Agents, the Joint Lead Arrangers or the
Banks by or on behalf of the Parent or the Borrower on or prior to the
Effective Date have been prepared in good faith based upon assumptions
reasonable at the time of delivery thereof (it being understood that
financial projections are subject to significant uncertainties and
contingencies, many of which are beyond the control of the Parent and the
Borrower, and no assurance can be given that such projections will be
realized).
Section 4.05. LITIGATION. There is no action, suit or proceeding pending
against, or to the knowledge of the Parent threatened against or affecting, the
Parent or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (a) except as disclosed in the Parent's
filings on
39
Forms 10-K, 10-Q or 8-K on or before the date hereof or as set forth on
SCHEDULE 4.05 (the "EXISTING LITIGATION") and except for shareholders'
derivative litigation or shareholders' class actions based on the same facts and
circumstances as the Existing Litigation, that 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
(b) which in any manner draws into question the validity or enforceability of
the Financing Documents.
Section 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group 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 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, that 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), that 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 Parent conducts an ongoing review of the effect of Environmental Laws on the
business, operations and properties of the Parent and its 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 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
Parent 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. Each Obligor has timely filed, or caused to be filed,
all material tax returns (federal, state, local and foreign), each being true
and correct in all material respects, required to be filed by it and paid
(a) all amounts of taxes shown thereon to be due (including interest and
penalties) and (b) all other material taxes, fees, assessments and other
government changes (including mortgage recording taxes, documentary stamp taxes
and intangible taxes) owing by it, except for such taxes (i) that are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. None of the Obligors are aware as of the date hereof of
any proposed tax assessments against it or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
Section 4.09. SUBSIDIARIES. (a) Each of the Parent's 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 Subsidiary has all
40
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.
(b) As of the Effective Date, the sole assets of Sensormatic Holding
Corporation consist of 100% of the Equity Interests in Sensormatic
Electronics Corporation and Xxxxx Technologies Holdings, Inc. As of the
Effective Date, the sole assets of Xxxxx Technologies Holdings, Inc. consist
of 100% of the Equity Interests in Xxxxx Technologies, Inc. and Intercompany
Debt.
Section 4.10. NOT AN INVESTMENT COMPANY. No Obligor is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended or
a "holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935.
Neither the making of any Loan, nor the issuance of any Letter of Credit, nor
the application of the proceeds or repayment thereof by the Borrower will
violate any provision of the Investment Company Act of 1940 or the Public
Utility Holding Company Act of 1935 or any rule, regulation or order of the SEC
thereunder.
Section 4.11. FULL DISCLOSURE. All information heretofore furnished by or on
behalf of the Obligors to any Agent in connection with this Agreement (as
modified or supplemented by other information so furnished) taken as a whole
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; PROVIDED
that, with respect to projected financial information, the Obligors represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time made, it being understood that projections
are subject to significant uncertainties and contingencies, many of which are
beyond the Obligors' control and that no assurance can be given that such
projections will be realized.
Section 4.12. OBLIGATIONS TO BE PARI PASSU. The obligations of each Obligor
under the Financing Documents rank PARI PASSU as to priority of payment and in
all other respects with all other unsecured and unsubordinated obligations of
such Obligor.
Section 4.13. OWNERSHIP OF PROPERTY. Each Obligor and each Subsidiary has
good record and marketable title to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
Section 4.14. INTELLECTUAL PROPERTY; LICENSES, ETC. The Parent and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, licenses and other intellectual
property rights that are used in the operation of their respective businesses as
of the date hereof, except where the failure to own or to have the right to use
would not have a Material Adverse Effect. To the best knowledge of the Parent,
no slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by the
Parent or any Subsidiary infringes upon any rights held by any other Person that
could reasonably be expected to have a Material Adverse Effect.
Section 4.15. CASUALTY, ETC. Neither the business nor the properties of any
Obligor or any Subsidiary is affected by any fire, explosion, accident, strike,
lockout or other labor dispute, embargo, war, act of God, terrorism or of the
public enemy or other casualty (whether or not covered by insurance) that could
reasonably be expected to have a Material Adverse Effect.
Section 4.16. SUBSIDIARY GUARANTORS. As of the Effective Date, the tangible
assets of the Subsidiary Guarantors (other than Tyco Group S.a.r.l and Alpha),
collectively, equal at least 37.5% of Consolidated Tangible Assets.
41
ARTICLE 5
COVENANTS
So long as any Bank has any Commitment hereunder, any Letter of Credit
remains outstanding or any amount payable under this Agreement or any Promissory
Note remains unpaid:
Section 5.01. INFORMATION. The Parent 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 Parent, a consolidated balance sheet of the
Parent and its 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 SEC;
(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 Parent, a
consolidated balance sheet of the Parent and its 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 Parent'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 Parent's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and consistency
on behalf of the Parent by a Designated Officer;
(c) simultaneously with the delivery of each set of financial statements
referred to in SUBSECTIONS (a) and (b) above, a copy of a certificate on
behalf of the Parent signed by a Designated Officer (the original of which
shall have been delivered to the Administrative Agent) (i) setting forth in
reasonable detail the calculations required to establish whether the Parent
was in compliance with the requirements of SECTIONS 5.08, 5.09, 5.10,
5.11(b), 5.13, 5.14(b), 5.16 and 5.17, on the date of such financial
statements together with a description of each transaction that qualifies as
a Permitted Project Financing, including the amount of any Debt related
thereto and any Investment therein 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 Parent 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 behalf of the Parent signed by a Designated Officer setting forth, in
reasonable detail, the nature thereof and the action which the Parent is
taking or proposes to take with respect thereto;
(e) promptly following the mailing thereof to the shareholders of the
Parent 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 Parent or the Borrower shall have filed
with the SEC;
(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 Parent or any of its Subsidiaries
that, if adversely determined, could reasonably be expected to have a
Material Adverse Effect, a certificate on behalf of the Parent specifying
the nature of such
42
action, suit or proceeding and what action the Parent is taking or proposes
to take with respect thereto;
(h) promptly following, and in any event within 10 days of, any change
or an announcement of an intention to make a change (or of a credit watch)
in a Debt Rating by any Rating Agency, notice thereof;
(i) promptly following any amendment of the Five-Year Credit Agreement,
a true and complete copy of such amendment; and
(j) from time to time, upon reasonable notice, such additional
information regarding the financial position or business of the Parent and
its Subsidiaries as the Administrative Agent, at the request of any Bank,
may reasonably request.
Information required to be delivered pursuant to SUBSECTION (a), (b),
(e) or (f) above shall be deemed to have been delivered on the date on which the
Parent provides notice to the Banks that such information has been posted on the
Parent'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 Parent shall deliver paper copies of the information
referred to in SUBSECTION (a), (b), (e) or (f) to any Bank that requests
such delivery.
Section 5.02. PAYMENT OF OBLIGATIONS. The Parent will pay and discharge, and
will cause each Subsidiary to pay and discharge, at or before maturity, all of
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
time, reasonably be expected to have a Material Adverse Effect or (ii) such
liabilities or obligations are being contested in good faith by appropriate
proceedings. The Parent will maintain, and will cause each Subsidiary to
maintain, in accordance with GAAP, 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 Parent will keep, and will cause each 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 Parent will maintain, and will cause each 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 Parent
(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 Subsidiary to engage in business of the same general type as
now conducted by the Parent's Subsidiaries and reasonably related extensions
thereof, and (c) will preserve, renew and keep in full force and effect, and
will cause each 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 Parent or any other Obligor to comply
with subclause (c) (y) of this SECTION 5.04 or the failure of a Subsidiary that
is not an Obligor to comply with clause (b) or (c) of this
43
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,
consolidation or amalgamation of a Subsidiary of the Borrower (other than a
Subsidiary Guarantor) with or into another Subsidiary of the Borrower, (ii) the
sale, lease, transfer, assignment or other disposition by a Subsidiary of all or
any part of its assets to the Parent or another Subsidiary, (iii) the merger,
consolidation or amalgamation of a Subsidiary of the Borrower (other than a
Subsidiary Guarantor) with or into a Person other than the Parent or a
Subsidiary, if the Person surviving such consolidation, merger or amalgamation
is a Subsidiary of the Borrower 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 Subsidiary of the Borrower (other than a
Subsidiary Guarantor) of all or any part of its assets to a Person other than
the Parent or a Subsidiary, if the Person to which such sale, lease, transfer,
assignment or other disposition is made is a Subsidiary of the Borrower and
immediately after giving effect thereto, no 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 Subsidiary of the Borrower (other than
a Subsidiary Guarantor) if the Parent in good faith determines that such
termination is in the best interest of the Parent and is not materially
disadvantageous to the Banks.
Section 5.05. COMPLIANCE WITH LAWS. The Parent will comply, and cause each
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 being contested in good faith by appropriate proceedings.
Section 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. (a) The Parent will
keep, and will cause each 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 GAAP.
(b) The Parent will permit, and will cause each 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 Parent, at
such reasonable times and as often as may reasonably be requested by any
Bank.
Section 5.07. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS AND OTHER
DISTRIBUTIONS. The Parent will not, and will not permit any 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 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 Parent or any
Subsidiary, or pay any Debt owed to the Parent or any Subsidiary, (b) make loans
or advances to the Parent or any Subsidiary or (c) transfer any of its
properties or assets to the Parent or any 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 Parent or a Subsidiary, or
(B) customary restrictions imposed on the
44
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 the date
hereof,
(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 Parent or
any Subsidiary, (B) shall sell, transfer, assign, lease or otherwise dispose
of all or substantially all of such Person's assets to the Parent or a
Subsidiary, or (C) otherwise becomes a 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 and such transaction is otherwise permitted hereunder,
(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 Parent'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 any Parent Subsidiary Guarantor,
(ix) any encumbrances and restrictions with respect to a Subsidiary
imposed in connection with an agreement that has been entered into for the
sale or disposition of such 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 Subsidiary (the "INDEBTED SUBSIDIARY") to
the Parent or any other Subsidiary, to any other Debt of such Indebted
Subsidiary, PROVIDED (A) such Debt is permitted under this Agreement and
(B) the Parent'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 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 Subsidiary which are not otherwise permitted pursuant to
clauses (i) through (xi) of this SECTION 5.07, PROVIDED that the aggregate
investment of the Parent in all such Subsidiaries (determined in accordance
with GAAP) shall at no time exceed the greater of (a) U.S.$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 Subsidiary, PROVIDED such Debt is otherwise
permitted by this Agreement.
Section 5.08. DEBT. The Parent shall not permit any Subsidiary to create,
incur, assume or suffer to exist any Consolidated Debt other than (i) Debt in
respect of Permitted Securitizations in an aggregate amount not to exceed
U.S.$500,000,000 at any time outstanding, (ii) the Convertible Bonds,
(iii) Debt existing on the date hereof, but only to the extent such Debt was not
incurred in contemplation of the entry into this Agreement, (iv) Debt under
overdraft or revolving credit facilities existing on the date
45
hereof in an aggregate amount not to exceed U.S.$653,000,000 at any one time
outstanding, (v) Debt under the Financing Documents, (vi) Permitted Acquired
Debt, (vii) Debt incurred under Permitted Receivables Transactions,
(viii) Synthetic Lease Obligations incurred after the date hereof pursuant to
the TyCom Ship Lease Participation Agreement as in effect on the Effective Date
for ships under construction on the date hereof in an aggregate amount not to
exceed U.S.$30,000,000, (ix) the Borrower's Guarantee, if any, of the Parent's
Liquid Yield Option Notes due 2020, (x) any Permitted Refinancings of any such
Debt described in the foregoing clauses (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii) and (ix) and (xi) other Consolidated Debt in an aggregate
outstanding principal amount for all Subsidiaries not to exceed
U.S.$500,000,000.
Section 5.09. FINANCIAL COVENANTS. (a) 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.
(b) CONSOLIDATED DEBT TO CONSOLIDATED EBITDA RATIO. The Parent shall
maintain at all times a ratio of (i) Consolidated Debt (excluding
Consolidated Debt that the Parent has identified to the Administrative Agent
as intended to be refinanced pursuant to a Permitted Refinancing consummated
after the Effective Date and prior to the date of determination, if as of
such date of determination, such Consolidated Debt (or portion thereof)
being refinanced has not remained outstanding for a period in excess of
three months from the date of the incurrence of such Consolidated Debt
pursuant to such Permitted Refinancing) to (ii) Consolidated EBITDA for the
period of four fiscal quarters ended on or most recently prior to the date
of determination of not more than the amount set forth below for each period
set forth below:
PERIOD RATIO
------ ---------
Effective Date through March 30, 2003....................... 4.55:1.00
March 31, 2003 through June 29, 2003........................ 4.35:1.00
June 30, 2003 through September 29, 2003.................... 4.10:1.00
September 30, 2003 through December 30, 2003................ 3.60:1.00
December 31, 2003 and thereafter............................ 3.50:1.00
(c) CONSOLIDATED NET WORTH. The Parent shall maintain at the end of each
fiscal quarter of the Parent a Consolidated Net Worth of not less than the
amount set forth below for each period set forth below:
QUARTER ENDING AMOUNT
-------------- ---------------
December 31, 2002....................................... $25,400,000,000
March 31, 2003.......................................... $25,700,000,000
June 30, 2003........................................... $26,200,000,000
September 30, 2003...................................... $26,700,000,000
December 31, 2003 and thereafter........................ $27,000,000,000
Section 5.10. RESTRICTIONS ON LIENS. The Parent will not, and will not
permit any Subsidiary to, create, assume or suffer to exist any Lien on any
property or asset now owned or hereafter acquired by it, except:
(a) any Lien existing on any asset on the date hereof securing Debt that
is outstanding on such date;
(b) any Lien existing on any asset of, or Equity Interest in, any Person
at the time such Person becomes a Subsidiary, which Lien was not created in
contemplation of such event; PROVIDED that any Debt such Lien secures is
permitted hereunder;
46
(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 Parent or a
Subsidiary or securing Debt (including any obligation as lessee incurred
under a capital lease) incurred or assumed by the Parent or a 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 or construction
or improvement, the Lien shall not apply to any asset theretofore owned by
the Parent or a Subsidiary, other than assets so acquired, constructed or
improved;
(d) any Lien existing on any asset of or Equity Interest in any Person
at the time such Person is merged or consolidated with or into the Parent or
a Subsidiary, which Lien was not created in contemplation of such event;
PROVIDED that any Debt such Lien secures is permitted hereunder;
(e) any Lien existing on any asset of or Equity Interest in any Person
at the time of acquisition thereof by the Parent or a 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 (d) of this
SECTION 5.10, PROVIDED the principal amount of Debt is not increased and is
not secured by any additional assets;
(g) any Lien to secure Debt of a Subsidiary to the Parent or to a
Subsidiary Guarantor;
(h) any Lien created pursuant to a Permitted Receivables Transaction;
(i) any Lien created pursuant to a Permitted Project Financing in an
amount not to exceed the amount of Liens the Parent and its Subsidiaries are
permitted to incur under the Five-Year Credit Agreement pursuant to an
amendment after the date hereof that treats as a separate category of
permitted Liens under SECTION 5.10 thereof Liens in connection with
Permitted Project Financings; PROVIDED that in no event shall Liens
permitted under this clause (i) secure Debt in an aggregate principal amount
in excess of U.S.$250,000,000;
(j) any Lien to Cash Collateralize Letters of Credit issued hereunder
and any Lien to secure the Obligations of the Obligors under the Financing
Documents;
(k) 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);
(l) Liens arising in the ordinary course of its business that secure
obligations that (i) do not constitute Debt or (ii) arise in respect of
letters of credit (other than Letters of Credit issued hereunder) which
obligations do not exceed U.S.$200,000,000 in the aggregate at any time
outstanding; PROVIDED that such Liens 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;
(m) Liens for property taxes not yet due or that are payable without
penalty;
(n) Permitted Liens;
47
(o) any Lien that secures obligations under a Permitted Securitization
in an aggregate amount not to exceed U.S.$500,000,000;
(p) any Lien pursuant to the documentation relating to a Permitted Rabbi
Trust; and
(q) Liens not otherwise permitted by the foregoing clauses (a) through
(p) 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) U.S.$300,000,000 and (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.
Section 5.11. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a) The Parent
will not and will not permit any other Obligor or Subsidiary to consolidate,
merge or amalgamate with or into any other Person, except that (i) a Subsidiary
Guarantor may do so if such other Person is not the Parent or the Borrower and:
(A) a Subsidiary Guarantor is the surviving corporation;
(B) immediately before and after giving effect to such transaction,
(1) no Default shall have occurred and be continuing and (2) the Parent
shall be in compliance with SECTION 5.14(b); and
(C) such Subsidiary Guarantor has delivered to the Administrative Agent
a certificate on behalf of such Subsidiary Guarantor 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; and
(ii) a Subsidiary that is not an Obligor may do so if immediately
before and after giving effect to such transaction no Default shall have
occurred and be continuing;
PROVIDED that no Subsidiary of the Borrower shall consolidate with or merge into
a Subsidiary that is not a Subsidiary of the Borrower.
(b) (i) The Parent will not, and will not permit any Subsidiary to,
sell, lease or otherwise transfer, in any transaction or series of related
transactions, to any Person (other than the Parent or a Subsidiary) any
Property (including, without limitation, the Equity Interests in any
Subsidiary) other than for fair market value and (ii) the Parent will not,
and will not permit any Subsidiary to, sell, lease or otherwise transfer, in
any transaction or series of related transactions, to any Person (other than
the Parent or a Subsidiary) any Property (including, without limitation, the
Equity Interests in any Subsidiary) having a net book value in excess of 20%
of Consolidated Assets determined as of the end of the fiscal quarter of the
Parent most recently ended at the time of such sale or other transaction, or
Property (including without limitation, Equity Interests in stock of a
Subsidiary) which contributed in excess of 20% of Consolidated EBIT for the
fiscal year of the Parent most recently ended at the time of such sale or
other transaction.
Section 5.12. TRANSACTIONS WITH AFFILIATES. The Parent will not, and will
not permit any Subsidiary to, directly or indirectly, pay any funds to or for
the account of, make any investment (whether by acquisition of Equity Interests
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 other transaction
with any Affiliate (collectively, "AFFILIATE TRANSACTIONS"); PROVIDED, HOWEVER,
that the foregoing provisions of this SECTION 5.12 shall not prohibit the Parent
or any of its 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
48
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 Parent or such Subsidiary as
the terms and conditions that the Parent would reasonably expect to be obtained
in a similar transaction with a Person that is not an Affiliate at such time,
(c) making payments of principal, interest and premium on any Debt of the Parent
or such Subsidiary held by an Affiliate if such payment is consistent with the
terms of subordination of such Debt and the terms of such Debt are at least as
favorable to the Parent or such Subsidiary as the terms which the Parent would
reasonably expect to have been obtained at the time of the creation of such Debt
from a lender that was not an Affiliate, (d) paying or granting reasonable
compensation and benefits to any director, officer, employee or agent of the
Parent or any Subsidiary, (e) any Affiliate Transaction required pursuant to the
terms of agreements existing on the date hereof or (f) engaging in any Affiliate
Transaction not otherwise addressed in SUBSECTIONS (a)-(e) of this
SECTION 5.12, the terms of which are not less favorable to the Parent or such
Subsidiary than those that the Parent would reasonably expect to be obtained in
a comparable transaction at such time with a Person that is not an Affiliate.
Section 5.13. RESTRICTED PAYMENTS. The Parent will not, and will not permit
any Subsidiary to, declare or make any Restricted Payment (excluding regularly
scheduled dividend payments on Preferred Stock of the Parent unless, after
giving effect thereto, the aggregate of all Restricted Payments declared or made
subsequent to the date hereof does not exceed an amount equal to the sum of
(a) U.S.$200,000,000 PLUS (b) with respect to Debt issued after the Effective
Date that is convertible by its terms into common stock of the Parent, the
principal amount of any such convertible Debt that converts into common stock of
the Parent in accordance with its terms, PLUS (c) the aggregate cash proceeds
(net of underwriting commissions) received by the Parent (other than from a
Subsidiary) from the issuance or sale after the date hereof of common stock of
the Parent, PLUS (d) an amount, not to exceed U.S.$200,000,000 in the aggregate,
equal to the product of (x) 0.44 and (y) the principal amount of the Convertible
Bonds that shall have been converted into common stock of the Parent in
accordance with their terms. 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; COVENANT TO GIVE GUARANTEE AND PARI
PASSU GUARANTEES. (a) Neither the Borrower nor the Parent shall permit any
Subsidiary to grant a Pari Passu Guarantee to any Person unless each Subsidiary
that grants any such Pari Passu Guarantee simultaneously grants a Subsidiary
Guarantee in favor of the Agents, the L/C Issuers and the Banks, which Guarantee
shall be PARI PASSU with the Pari Passu Guarantees.
(b) If as a result of the following (i) the sale, lease or other
transfer (including without limitation, by way of dividend or other
distribution in either case in property other than cash) by any Subsidiary
Guarantor or any Subsidiary of a Subsidiary Guarantor of any Equity interest
or other assets to the Parent or the Borrower or any Subsidiary that is not
a Subsidiary Guarantor or a Subsidiary of a Subsidiary Guarantor or
(ii) the consolidation, merger or amalgamation of any Subsidiary Guarantor
or any Subsidiary of a Subsidiary Guarantor into the Parent or the Borrower
or a Subsidiary that is not a Subsidiary Guarantor or a Subsidiary thereof
(or does not become as a result of or immediately following such
consolidation, merger or amalgamation a Subsidiary Guarantor or a Subsidiary
of a Subsidiary Guarantor), the aggregate Subsidiary Tangible Assets of the
Subsidiary Guarantors and their Subsidiaries, collectively, is less than the
aggregate Subsidiary Tangible Assets of the Subsidiary Guarantors and their
Subsidiaries immediately prior to such transaction (the "MAINTENANCE
LEVEL"), the Parent and the Borrower shall, in each case at the Borrower's
expense, cause such additional Subsidiaries of the Parent and the Borrower
reasonably acceptable to the Co-Agents (each, an "ADDITIONAL SUBSIDIARY
GUARANTOR") to take all actions required hereunder to become a Subsidiary
Guarantor, including, without limitation, the execution and delivery to the
Co-Agents of a Joinder Agreement or a Borrower Subsidiary Guarantee
49
Supplement, as applicable, as may be required to cause the Subsidiary
Tangible Assets of the Subsidiary Guarantors and their Subsidiaries,
including such Additional Guarantors, to be equal to or greater than the
Maintenance Level.
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,
including, without limitation, capital expenditures. None of such proceeds will
be used, directly or indirectly, (a) for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any "margin stock" within the
meaning of Regulation U or (b) to reimburse any drawing under a Letter of
Credit.
Section 5.16. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. The Parent
will not, and will not permit any Subsidiary to, enter into any Sale and
Leaseback Transaction that would cause the aggregate amount of Attributable Debt
outstanding pursuant to all Sale and Leaseback Transactions entered into by the
Parent or a Subsidiary after the date of this Agreement (other than any
Attributable Debt outstanding pursuant to a Permitted Refinancing of a Sale and
Leaseback Transaction) to exceed U.S.$500,000,000.
Section 5.17. INVESTMENTS. At all times prior to a Ratings Upgrade, the
Parent will not and will not permit any Subsidiary to make or hold any
Investments other than Permitted Investments.
Section 5.18. FIVE-YEAR CREDIT AGREEMENT. The Parent will not, and will not
permit the Borrower to, make any amendment to the covenants, representations,
warranties or events of default (or the defined terms included therein) in the
Five-Year Credit Agreement that would result in such provisions being more
restrictive on the Parent and its Subsidiaries than the corresponding provisions
of this Agreement unless this Agreement is simultaneously amended to include
such more restrictive provisions.
Section 5.19. NEGATIVE PLEDGE. Except as set forth in agreements existing on
the date hereof, the Parent will not enter into or suffer to exist, or permit
any Subsidiary to enter into or suffer to exist, any agreement or contractual
obligation that (a) prohibits or conditions the creation or assumption of any
Lien upon any of its property or assets; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person, unless in any such case such agreement or contractual
obligation specifically excludes from its prohibitions, conditions and
requirements the grant of Liens in favor of the Agents and Banks.
50
ARTICLE 6
DEFAULTS
Section 6.01. EVENTS OF DEFAULT. 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 or any L/C Obligation shall not be paid
when due, or any interest, any fees or other amounts payable hereunder shall
not be paid within three Business Days of the due date thereof;
(b) the Parent shall fail to observe or perform any covenant contained
in SECTION 5.08, 5.09, 5.10, 5.11, 5.13, 5.14(a) or 5.19;
(c) the Parent shall fail to observe or perform any covenant contained
in SECTION 5.01, 5.07, 5.12, 5.14(b), 5.16 or 5.17, and such failure shall
not be remedied within five days after any Responsible Officer obtains
actual knowledge thereof;
(d) any Obligor shall fail to observe or perform any covenant or
agreement contained in this Agreement or in any Financing Document (other
than those covered by clause (a), (b) or (c) of this SECTION 6.01) and such
failure shall remain unremedied for 10 days after the earlier of (x) any
Responsible Officer obtaining actual knowledge thereof or (y) notice thereof
shall have been given to the Parent by the Administrative Agent at the
request of any Bank;
(e) any representation, warranty, certification or statement made by any
Obligor herein or in any other Financing Document or by any Obligor or a
Designated Officer in writing in any certificate, financial statement or
other document required to be delivered to the Administrative 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 Parent 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) the Parent or any Subsidiary fails to observe or perform any other
agreement or condition relating to Material Debt or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event (other than in the case of Material Debt that, by its terms,
entitles the holders to elect to be paid by payment, repurchase, redemption
or otherwise on one or more specified dates prior to the final maturity
thereof notwithstanding the absence of a default, the exercise by the
holders thereof of the right to require such payment prior to final
maturity) occurs, the effect of which default or other event is to cause, or
to permit the holder or holders of such Material Debt or the beneficiary or
beneficiaries of such Material Debt (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Material Debt to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Material Debt to be made, prior to its stated maturity, or such Material
Debt to become payable or cash collateral in respect thereof to be demanded,
in each case after the expiration of any applicable grace period; PROVIDED
that any of the foregoing events with respect to Permitted Project
Financings shall not constitute an Event of Default hereunder to the extent
that Section 6.01(g) of the Five-Year Credit Agreement is amended to exclude
such event with respect to Permitted Project Financings from "Events of
Default" as such term is defined in the Five-Year Credit Agreement; and
PROVIDED FURTHER that a drawing under any letter of credit or similar
obligation by the beneficiary thereof shall not constitute an Event of
Default hereunder so long as (i) the event entitling such beneficiary to
make such drawing would not otherwise constitute an Event of Default
hereunder and (ii) there is no default by the Parent or any Subsidiary in
the payment of the resulting reimbursement obligation.
51
(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 Parent 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 member's voluntary winding up
of the Parent 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 Parent 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
Parent to a court of Bermuda as provided under the Bermuda Companies Law, or
(C) any creditors' winding up of the Parent as provided under the Bermuda
Companies Law shall be commenced, or (D) any receiver shall be appointed by
a creditor of the Parent or by a court of Bermuda on the application of a
creditor of the Parent 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 brought or requested by
creditors of the Parent, such petition, winding up, appointment, order or
other matter shall remain undismissed and unstayed for a period of 60 days;
(iii) the Parent 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 Parent 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 Parent or any Significant Subsidiary
under the Bankruptcy Law of any jurisdiction as now or hereafter in effect;
(i) a judgment or order for the payment of money in excess of
U.S.$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 Parent 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
SEC under said Act) of 40% or more of the outstanding shares of common stock
of the Parent; or, on the last day of any period of twelve consecutive
calendar months, a majority of members of the board of directors of the
Parent 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;
52
(k) the Parent 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 Parent or such Subsidiary in good faith),
and the aggregate amount of such bonds or guarantees in respect of which
such defaults have occurred shall exceed U.S.$50,000,000;
(l) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of U.S.$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 U.S.$25,000,000;
(m) the Borrower shall cease to be a Wholly Owned Subsidiary of the
Parent; or
(n) any Financing Document shall cease to be valid and enforceable
against any Obligor party thereto; or any Obligor shall so assert in
writing.
Section 6.02. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Banks, take any or all of the following
actions:
(a) declare the commitment of each Bank to make Loans and any obligation
of the L/C Issuers to issue Letters of Credit to be terminated, whereupon
such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Financing Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations in
respect of each Letter of Credit (in an amount equal to the then Outstanding
Amount thereof); and
(d) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Financing Documents or applicable
law;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower or the Parent under the Bankruptcy
Code of the United States or in the case of any of the Events of Default
specified in SECTION 6.01(H) with respect to any Significant Subsidiary, the
obligation of each Bank to make Loans and any obligation of the L/C Issuers to
issue Letters of Credit shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Borrower
to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without any notice or further act of the
Administrative Agent or any Bank.
Section 6.03. APPLICATION OF FUNDS. After the exercise of remedies
provided for in SECTION 6.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to
Section 6.02),
53
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under ARTICLE 8) payable to the Administrative Agent in its
capacity as such;
SECOND, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under ARTICLE 8) payable to the L/C Issuers in their
capacity as such;
THIRD, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to
the Banks (including Attorney Costs and amounts payable under ARTICLE 8),
ratably among them in proportion to the amounts described in this clause
THIRD payable to them;
FOURTH, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans, Unreimbursed Drawings and
Unreimbursed Fundings and letter of credit fees with respect to the L/C
Obligations, ratably among the Banks in proportion to the respective amounts
described in this clause FOURTH payable to them;
FIFTH, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and Unreimbursed Drawings and Unreimbursed Fundings,
ratably among the Banks in proportion to the respective amounts described in
this clause FIFTH held by them;
SIXTH, to the Administrative Agent for the account of each L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of each Letter of Credit issued by such L/C Issuer;
SEVENTH, to the payment of all other Obligations of the Obligors owing
under or in respect of the Financing Documents that are due and payable to
the Administrative Agent and the Banks on such date, ratably based upon the
respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the Banks on such date; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by law.
Subject to SECTION 2.04(c), amounts used to Cash Collateralize the undrawn
amount of a Letter of Credit pursuant to clause Sixth above shall be applied to
satisfy drawings under such Letter of Credit as they occur. If any amount
remains on deposit as Cash Collateral after such Letter of Credit has either
been fully drawn or expired, such remaining amount shall be returned to the
Borrower or as otherwise required by law.
Section 6.04. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Parent under SECTION 6.01(d) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENTS
Section 7.01. APPOINTMENT AND AUTHORIZATION OF THE AGENTS. (a) Each Bank
hereby irrevocably appoints, designates and authorizes each Agent to take such
action on its behalf under the provisions of this Agreement and each other
Financing Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Financing
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Financing Document, no Agent
54
shall have any duties or responsibilities, except those expressly set forth
herein, nor shall any Agent have or be deemed to have any fiduciary relationship
with any Bank or Participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Financing Document or otherwise exist against any Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" herein and in the other Financing Documents with reference to any 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.
(b) Each L/C Issuer shall act on behalf of the Banks with respect to any
Letters of Credit issued by it and the documents associated therewith, and each
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Agents in this Article 7 with respect to any acts taken or omissions suffered by
each L/C Issuer in connection with Letters of Credit issued by it or proposed to
be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Agent" as used in
this Article 7 and in the definition of "Agent-Related Person" included each L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuers.
Section 7.02. DELEGATION OF DUTIES. Any Agent may execute any of its
duties under this Agreement or any other Financing Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. No Agent shall be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects in the absence of gross negligence
or willful misconduct.
Section 7.03. LIABILITY OF AGENTS. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any Agent-Related Person
under or in connection with this Agreement or any other Financing Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Bank or participant for any recital,
statement, representation or warranty made by any Obligor or any officer
thereof, contained herein or in any other Financing Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by any Agent under or in connection with, this Agreement or any
other Financing Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Financing Document,
or for any failure of any Obligor or any other party to any Financing Document
to perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Financing Document, or to
inspect the properties, books or records of any Obligor or any Affiliate
thereof.
Section 7.04. RELIANCE BY AGENTS. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Obligor), independent accountants and other experts selected by such
Agent. Each Agent shall be fully justified in failing or refusing to take any
action under any Financing Document unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Financing Document in accordance with a request or consent of the
Required Banks (or such greater number of Banks as may be expressly required
hereby
55
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks.
(b) For purposes of determining compliance with the conditions specified in
SECTION 3.01, each Bank that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Bank unless the Co-Agents shall have received notice from
such Bank prior to the proposed Effective Date specifying its objection thereto.
Section 7.05. NOTICE OF DEFAULT. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default, except, in the case of the
Administrative Agent, with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Banks, unless such Agent shall have received written notice from
a Bank or the Borrower referring to this Agreement, describing such Default and
stating that such notice is a "notice of default." The Administrative Agent will
notify the Banks of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default as may be directed by the
Required Banks in accordance with ARTICLE 6; PROVIDED, HOWEVER, that, unless and
until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Banks.
Section 7.06. CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENT. Each
Bank acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by any Co-Agent hereafter taken, including any
consent to and acceptance by the Administrative Agent of any assignment or any
review of the affairs of any Obligor or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Bank as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Bank represents to each Co-Agent
that it has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Obligors and
their respective Subsidiaries, and all applicable bank or other regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Borrower hereunder. Each
Bank also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Financing Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrower and the other
Obligors. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Administrative Agent herein, no Co-Agent shall
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Obligors or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
Section 7.07. INDEMNIFICATION OF AGENTS. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of any
Obligor and without limiting the obligation of any Obligor to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; PROVIDED, HOWEVER, that no Bank shall be
liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; PROVIDED,
HOWEVER, that no action taken in accordance with the directions of the Required
Banks shall be deemed to constitute gross negligence or
56
willful misconduct for purposes of this Section. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified
Liabilities, this SECTION 7.07 applies whether any such investigation,
litigation or proceeding is brought by any Bank or any other Person. Without
limitation of the foregoing, each Bank shall reimburse each Co-Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Co-Agents in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Financing
Document, or any document contemplated by or referred to herein, to the extent
that the Co-Agents are not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Commitments, the payment of all other Obligations and the resignation of any
Co-Agent.
Section 7.08. AGENTS IN THEIR INDIVIDUAL CAPACITY. Each financial
institution acting as an Agent and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire Equity
Interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each of the Obligors and their
respective Affiliates as though such financial institution were not an Agent or
an L/C Issuer hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, each financial institution acting
as an Agent or its Affiliates may receive information regarding any Obligor or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Obligor or such Affiliate) and acknowledge that
such financial institution shall be under no obligation to provide such
information to them. With respect to its Loans, each financial institution
acting as an Agent shall have the same rights and powers under this Agreement as
any other Bank and may exercise such rights and powers as though it were not an
Agent or L/C Issuer, and the terms "Bank" and "Banks" include each such
financial institution in its individual capacity.
Section 7.09. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent at any time by giving notice to the Banks and the
Borrower; PROVIDED that any such resignation by Bank of America shall also
constitute its resignation as L/C Issuer. If the Administrative Agent resigns
under this Agreement, the Required Banks shall appoint from among the Banks a
successor administrative agent for the Banks, which successor administrative
agent shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Banks and
the Borrower, a successor administrative agent from among the Banks. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent, and L/C Issuer and the
respective terms "Administrative Agent," and "L/C Issuer" shall mean such
successor administrative agent and Letter of Credit issuer and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring L/C Issuer's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring L/C Issuer or any other Bank, other than the obligation of the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE 7 and SECTION 9.03 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is
30 days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Administrative
Agent hereunder until
57
such time, if any, as the Required Banks appoint a successor administrative
agent as provided for above. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Financing Documents.
Section 7.10. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Obligor, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the Banks
and the Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Banks and the Agents and their
respective agents and counsel and all other amounts due the Banks and the
Agents under Sections 2.04(i) and (j), 2.08 and 9.03(a)) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 2.08 and 9.03(a).
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Bank any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Bank or to authorize the Administrative Agent
to vote in respect of the claim of any Bank in any such proceeding.
Section 7.11. GUARANTEE MATTERS. The Banks irrevocably authorize the
Administrative Agent, at its option and in its discretion, so long as no Default
shall have occurred and be continuing, to release any Subsidiary Guarantor from
its obligations hereunder or under the Subsidiary Guarantees (a) if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder and
(b) in the event that all Pari Passu Guarantees, if any, have been released or
are being released simultaneously therewith, upon the earlier to occur of (x) a
Ratings Upgrade or (y) September 30, 2003, if on such date, the Parent has
consolidated U.S. dollar-denominated and Euro-denominated cash and Cash
Equivalents (that are not subject to any Lien or other legal or contractual
restriction by any third party that restricts the use of such cash and Cash
Equivalents) and unutilized commitments available for borrowing under the
Five-Year Credit Agreement (with no event existing that would excuse the lenders
thereunder from funding a request for borrowing) of not less than the sum of
(i) a liquidity cushion of U.S.$1,000,000,000 PLUS (ii) the then Total
Outstandings PLUS (iii) the then outstanding amount of the Parent's Liquid Yield
Option Notes due 2020 (less the amount of any such securities for which
arrangements satisfactory to the Co-Agents, including defeasance, have been made
to satisfy the Parent's obligations thereunder); PROVIDED, HOWEVER, that any
Subsidiary Guarantee granted pursuant to
58
SECTION 5.14(a) hereunder shall be released in accordance with its terms. A
Responsible Officer of the Borrower shall provide the Co-Agents with
calculations of the foregoing amounts prior to any release of such Guarantors
and shall certify that after giving effect to such release, no Default shall
have occurred and be continuing and all such matters shall be confirmed by a
Designated Officer. If, following such release, the Parent and the Subsidiaries
grant any Pari Passu Guarantees, the obligations of the Subsidiary Guarantors
hereunder shall automatically be reinstated for so long as such Pari Passu
Guarantees shall be outstanding and the Parent and the Subsidiaries shall take
such action as may be reasonably requested by the Co-Agents to evidence such
reinstatement.
Upon request by the Administrative Agent at any time, the Required Banks
will confirm in writing the Administrative Agent's authority to release any
Subsidiary Guarantor from its obligations hereunder or under the Subsidiary
Guarantees pursuant to this SECTION 7.11. In each case as specified in this
SECTION 7.11, the Administrative Agent will, at the Borrower's expense, execute
and deliver to the applicable Obligor such documents as such Obligor may
reasonably request to release such Guarantor from its obligations hereunder or
under the Subsidiary Guarantees, in each case in accordance with the terms of
the Financing Documents and this SECTION 7.11.
Section 7.12. OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Banks or
other Persons identified on the facing page or signature pages of this Agreement
as a "documentation agent," "book manager," "lead manager," "arranger," "lead
arranger" or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Banks, those applicable to all Banks as such. Without limiting the foregoing,
none of the Banks or other Persons so identified shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks or other Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. If
the Required Banks determine that for any reason adequate and reasonable means
do not exist for determining the Euro-Dollar Rate for any requested Interest
Period with respect to a proposed Euro-Dollar Loan, or that the Euro-Dollar Rate
for any requested Interest Period with respect to a proposed Euro-Dollar Loan
does not adequately and fairly reflect the cost to such Bank of funding such
Loan, or that dollar deposits are not being offered to banks in the London
interbank eurodollar market for the applicable amount and the Interest Period of
such Euro-Dollar Loan, the Administrative Agent will promptly so notify the
Borrower and each Bank. Thereafter, the obligation of the Banks to make or
maintain Euro-Dollar Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Banks) revokes such notice. Upon receipt
of such notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Euro-Dollar Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
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 or to determine or
charge interest based upon the Euro-Dollar Rate and such Bank shall so notify
the Administrative Agent, the Administrative Agent shall forthwith give notice
specifying the circumstances giving rise to such suspension to the
59
other Banks and the Borrower, whereupon, until such Bank notifies the Borrower
and the Administrative 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 Administrative Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
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, in the case of any Loan or Unreimbursed Amount or any
obligation to make Loans or issue or participate in any Letter of Credit or fund
any Unreimbursed Drawing, 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 2.15), 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 Loans, its participation in any Letter of Credit, its share of any
Unreimbursed Drawing, its Promissory Note or its obligation to make Loans, issue
Letters of Credit or fund Unreimbursed Drawings 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 Loan, or to fund Unreimbursed Drawings 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
Administrative 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, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Bank Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Bank 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 Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Bank Parent) for such reduction.
60
(c) Each Bank will promptly notify the Borrower and the Administrative 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 shall be conclusive
in the absence of manifest error.
Section 8.04. TAXES. (a) Any and all payments by any Obligor to or for the
account of any Bank or any Agent hereunder or under any Promissory Note or other
Financing Document 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 each 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 such 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 or other Financing
Document to any Bank or 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
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
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 Administrative 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 (in each case other than to the extent imposed under the federal laws of
the United States) which arise from any payment made hereunder or under any
Promissory Note or other Financing Document 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 each 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 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 each 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 such
Agent or such Bank, as the case may be. This indemnification shall be made
within 15 days from the date such Bank or Agent (as the case may be) makes
demand therefor.
61
(d) 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 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 8.01 or
8.02 or (ii) any Bank has demanded compensation under SECTION 8.03 or 8.04 with
respect to its Euro-Dollar Loans that bear interest at the Euro-Dollar Rate and
the Borrower shall, by at least five Business Days' prior notice to such Bank
through the Administrative 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
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 Administrative
Agent and consent of the L/C Issuers) 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 F 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 and Unreimbursed Fundings 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 2.13 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.
62
ARTICLE 9
MISCELLANEOUS
Section 9.01. NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) GENERAL. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Financing Document
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower or the Parent, as specified on the signature pages
hereof, if to any Parent Subsidiary Guarantor or any Co-Agent or any L/C
Issuer, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on SCHEDULE 9.01 or to such
other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other
parties; and
(ii) if to any other Bank, to the address, facsimile number, electronic mail
address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party
in a notice to the Borrower, the Administrative Agent and the L/C
Issuers.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
SUBSECTION (D) below), when delivered; PROVIDED, HOWEVER, that notices and other
communications to the Administrative Agent and the L/C Issuer pursuant to
ARTICLE 2 shall not be effective until actually received by such Person. In no
event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Financing Documents
may be transmitted and/or signed by facsimile. The effectiveness of any
such documents and signatures shall, subject to applicable law, have the
same force and effect as manually signed originals and shall be binding
on all Obligors, the Agents and the Banks. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; PROVIDED, HOWEVER, that the failure to
request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and internet and
intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in
SECTION 5.01, and to distribute Financing Documents for execution by the
parties thereto, and may not be used for any other purpose.
(d) RELIANCE BY AGENT AND BANKS. The Agents, the L/C Issuers and the Banks
shall be entitled to rely and act upon any notices (including telephonic
Notices of Borrowing) purportedly given by or on behalf of the Borrower
even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall
indemnify each Agent-Related Person and each Bank from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to
63
and other communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents
to such recording.
Section 9.02. NO WAIVERS. No failure or delay by any 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.
Section 9.03. EXPENSES; INDEMNIFICATION. (a) ATTORNEY COSTS, EXPENSES AND
TAXES. The Borrower agrees (i) to pay or reimburse the Co-Agents for all costs
and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Financing Documents,
and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated hereby or
thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs, and
(ii) to pay or reimburse the Co-Agents and each Bank for all costs and expenses
incurred in connection with the enforcement of any rights or remedies under this
Agreement or the other Financing Documents (including all such costs and
expenses incurred during any legal proceeding, including any proceeding under
any Bankruptcy Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Co-Agents and the costs of independent public
accountants and other outside experts retained by the Co-Agents or any Bank. All
amounts due under this SECTION 9.03(A) shall be payable within ten Business Days
after demand therefor. The agreements in this Section shall survive the
termination of the Commitments and repayment of all other Obligations. If any
Obligor fails to pay when due any costs, expenses or other amounts payable by it
hereunder or under any Financing Document, including, without limitation,
Attorney Costs and indemnities, such amount may be paid on behalf of such
Obligor by any Agent or any Bank, in its sole discretion.
(b) INDEMNIFICATION BY THE BORROWER. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and
hold harmless each Agent-Related Person, each Agent, each the L/C Issuer,
each Bank and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively, the
"INDEMNITEES") from and against any and all liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits,
costs, out-of-pocket expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time be imposed
on, asserted against any such Indemnitee or to which any Indemnitee may
be subject in any way relating to or arising out of or in connection with
(a) the execution, delivery, enforcement, performance or administration
of any Financing Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by any L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (c) any actual or alleged presence or release of
Hazardous Substances on or from any property currently or formerly owned
or operated by the Borrower, any Subsidiary or any other Obligor, or any
environmental liability related in any way to the Borrower, any
Subsidiary or any other Obligor, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless
of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "INDEMNIFIED LIABILITIES"), in
64
all cases, whether or not caused by or arising, in whole or in part, out
of the negligence of the Indemnitee; PROVIDED that such indemnity shall
not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee; 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. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials
obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee (or
the Borrower, except to the extent resulting from a judgment obtained by
a third party against an Indemnitee) have any liability for any indirect,
punitive or consequential damages relating to this Agreement or any other
Financing Document or arising out of its activities in connection
herewith or therewith (whether before or after the Effective Date). In
the case of an investigation, litigation or other proceeding to which the
indemnity in this SECTION 9.03(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Obligor, its directors, shareholders or creditors or an
Indemnitee or any other Person, whether or not any Indemnitee is
otherwise a party thereto and whether or not any of the transactions
contemplated hereunder or under any of the other Financing Documents is
consummated. All amounts due under this SECTION 9.03(b) shall be payable
within 20 Business Days after demand therefor. The agreements in this
Section shall survive the resignation of any Agent or L/C Issuer, the
replacement of any Bank, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
Section 9.04. SHARING OF SET-OFFS; PAYMENTS SET ASIDE. (a) 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 amounts due with
respect to any Loan or the participation in the L/C Obligations held by it which
is greater than the proportion received by any other Bank in respect of the
aggregate amounts due with respect to any Loan or the participation in the L/C
Obligations held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Loans and L/C
Obligations held by the other Banks, and such other adjustments shall be made,
as may be required, so that all such payments with respect to the Loans and L/C
Obligations 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 indebtedness of the Obligors other than
indebtedness under the Financing Documents.
(b) To the extent that any payment by or on behalf of the Borrower is made
to any Agent or any Bank, or any Agent or any Bank exercises its right of
set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by such Agent or such Bank in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any
proceeding under any Bankruptcy Law or otherwise, then (i) to the extent
of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as
if such payment had not been made or such set-off had not occurred, and
(ii) each Bank severally agrees to pay to each Agent upon demand its
applicable share of any amount so recovered from or repaid such Agent,
plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect.
65
Section 9.05. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Financing Document, and no consent to
any departure by the Borrower or any other Obligor therefrom, shall be effective
unless in writing signed by the Required Banks and the Borrower or the
applicable Obligor, as the case may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; PROVIDED, HOWEVER, that
no such amendment, waiver or consent shall:
(i) waive any condition set forth in SECTION 3.01(a), or, in the case of the
initial Credit Extension, SECTION 3.02, without the written consent of
each Bank;
(ii) extend or increase the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to SECTION 6.02) without the written
consent of such Bank;
(iii) postpone any date scheduled for any payment of principal or interest
under SECTION 2.06 or 2.07, or any date fixed by the Administrative
Agent for the payment of fees, commissions or other amounts due to the
Banks (or any of them) hereunder or under any other Financing Document
without the written consent of each Bank directly affected thereby;
(iv) reduce the principal of, or the rate of interest specified herein on,
any Loan or Unreimbursed Drawing, or (subject to clause (v) of the
proviso to this SECTION 9.05) any fees or other amounts payable
hereunder or under any other Financing Document without the written
consent of each Bank directly affected thereby;
(v) change any provision of this SECTION 9.05 or the definition of "Required
Banks" or any other provision hereof specifying the number or percentage
of Banks required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder,
without the written consent of each Bank; or
(vi) release the Parent from its obligations under ARTICLE 10 or, except in
accordance with Section 7.11, the Subsidiary Guarantors from their
obligations hereunder or under the Subsidiary Guarantees, without the
written consent of each Bank;
and PROVIDED that (i) no amendment, waiver or consent shall, unless in
writing and signed by each L/C Issuer in addition to the Banks required above,
affect the rights or duties of such L/C Issuer under this Agreement or any
Letter of Credit Application relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Banks required above,
affect the rights or duties of, or any fees or other amounts payable to, the
Administrative Agent under this Agreement or any other Financing Document;
(iii) no amendment, waiver or consent shall, unless in writing and signed by
each Co-Agent in addition to the Banks required above, affect the rights or
duties of, or any fees or other amounts payable to, the Co-Agents under this
Agreement or any other Financing Document; (iv) SECTION 9.06(g) may not be
amended, waived or otherwise modified without the consent of each designating
Bank all or any part of whose Loans are being funded by a Conduit at the time of
such amendment, waiver or other modification; and (v) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Bank shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Bank may not be
increased or extended without the consent of such Bank.
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 permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Bank and no Bank may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Assignee in accordance with the provisions of SUBSECTION (B) of this Section,
(ii) by way of participation in accordance with the provisions
66
of SUBSECTION (d) of this Section, (iii) by way of pledge or assignment of a
security interest subject to the restrictions of SUBSECTION (f) or (i) of this
Section, or (iv) to a Conduit in accordance with the provisions of SUBSECTION
(h) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in SUBSECTION (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more Assignees all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (including for purposes of
this SUBSECTION (b), participations in L/C Obligations) at the time owing
to it); PROVIDED that (i) except in the case of an assignment of the
entire remaining amount of the assigning Bank's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Bank or an
Affiliate of a Bank or an Approved Fund with respect to a Bank, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loan of the assigning
Bank subject to each such assignment, determined as of the date the
Assignment and Assumption Agreement, substantially in the form of
EXHIBIT F hereto (the "ASSIGNMENT AND ASSUMPTION AGREEMENT") with respect
to such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption Agreement, as of the
Trade Date, shall not be less than U.S.$5,000,000, or with the consent of
the Borrower (such consent not to be unreasonably withheld or delayed but
will not be required if a Default has occurred and is continuing)
U.S.$1,000,000; (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Bank's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned; (iii) any assignment must be approved by the
Administrative Agent and the L/C Issuers unless the Person that is the
proposed assignee is itself a Bank (whether or not the proposed assignee
would otherwise qualify as an Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption Agreement, together with a processing and
recordation fee of U.S.$3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to SUBSECTION (c) of this
Section, from and after the effective date specified in each Assignment
and Assumption Agreement, the Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption Agreement, have the rights and obligations of a
Bank under this Agreement, and the assigning Bank thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption
Agreement, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption Agreement covering all of the
assigning Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto but shall continue to be entitled to the
benefits of SECTIONS 2.13, 8.02, 8.04, and 9.03(a) with respect to facts
and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute
and deliver a Promissory Note to the Assignee Bank. Any assignment or
transfer by a Bank of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of
this Agreement as a sale by such Bank of a participation in such rights
and obligations in accordance with SUBSECTION (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent's Office 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 amounts of the Loans and L/C
Obligations owing to, each Bank pursuant to the terms hereof from time to
time (the "REGISTER"). The
67
entries in the Register shall be conclusive, and the Borrower, the
Administrative 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 Borrower
and any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a portion
of such Bank's rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Loans and participations in
L/C Obligations owing to it); PROVIDED that (i) such Bank's obligations
under this Agreement shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a
participation shall provide that such Bank shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; PROVIDED that such agreement
or instrument may provide that such Bank will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in the first proviso to SECTION 9.05 that directly affects such
Participant. Subject to SUBSECTION (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of
SECTIONS 2.13, 8.03 and 8.04 to the same extent as if it were a Bank and
had acquired its interest by assignment pursuant to SUBSECTION (b) of
this Section.
(e) A Participant shall not be entitled to receive any greater payment under
SECTION 8.03 or 8.04 than the applicable Bank would have been entitled to
receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent 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. A
Participant that would be a foreign Bank if it were a Bank shall not be
entitled to the benefits of SECTION 8.03 unless the Borrower is notified
of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with SECTION 8.04 as
though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its
Promissory Note, if any) to secure obligations of such Bank, including
any pledge or assignment to secure obligations to a Federal Reserve Bank;
PROVIDED that no such pledge or assignment shall release such Bank from
any of its obligations hereunder or substitute any such pledgee or
Assignee for such Bank as a party hereto.
(g) Notwithstanding anything to the contrary contained in this
SECTION 9.06, but subject to the terms and conditions set forth in this
SUBSECTION (g), 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 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(g) shall be subject to the approval of
the Borrower, which shall not be unreasonably withheld. No additional
Promissory 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
Promissory Note in its possession as an agent for such Conduit to the
68
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 Administrative Agent may continue
to deal solely and directly with the designating Bank as 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 Administrative Agent are notified that the designating
Bank has been replaced as 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 agent for its Conduit, as applicable;
PROVIDED neither the Borrower nor the Administrative 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 Administrative 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
Administrative 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.
(h) 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(h) shall survive the
termination of this Agreement.
(i) Notwithstanding anything to the contrary contained herein, any Bank that
is a Fund may create a security interest in all or any portion of the
Loans owing to it and the Promissory Note, if any, held by it to the
trustee for holders of obligations owed, or securities issued, by such
Fund as security for such obligations or securities, PROVIDED that unless
and until such trustee actually becomes a Bank in compliance with the
other provisions of this SECTION 9.06, (i) no such pledge shall release
the pledging Bank from any of its obligations under the Financing
Documents and (ii) such trustee shall not be entitled to exercise any of
the rights of a Bank under the Financing Documents even though such
trustee may have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, if at any
time any L/C Issuer assigns all of its Commitment and Loans pursuant to
SUBSECTION (b) above, such L/C issuer may, upon 30 days' notice to the
Borrower and the Banks, resign as an L/C Issuer. In the event of any such
resignation as L/C Issuer, the Required Lenders shall be entitled to
appoint from among the Banks a successor L/C Issuer; PROVIDED, HOWEVER,
that no failure by the Required Lenders to appoint any such successor
shall affect the resignation of such L/C Issuer as L/C Issuer. If any L/C
Issuer resigns as L/C Issuer, it shall retain all the rights and
obligations of an L/C Issuer hereunder with respect to all Letters of
Credit issued by it outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Banks to fund risk participations in
Unreimbursed Amounts pursuant to SECTION 2.04(c)).
(l) Each Assignee shall, on or prior to the effective date of its Assignment
and Assumption Agreement, and each Bank party hereto on the date hereof
shall, on or before the Effective Date, provide the Administrative Agent
with an Administrative Questionnaire and each such Person shall, in the
event of any changes to the information set forth therein, provide the
Administrative Agent with an updated Administrative Questionnaire.
69
Section 9.07. COLLATERAL. Each of the Banks represents to the Administrative
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. 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. Delivery
by telecopier of an executed counterpart of a signature page to this Agreement
and each other Financing Document shall be effective as delivery of an original
executed counterpart of this Agreement and such other Financing Document. 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.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY FINANCING DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY FINANCING DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
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 shortfall. 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.
Section 9.12. JUDICIAL PROCEEDINGS. (a) CONSENT TO JURISDICTION. Each
Obligor party hereto 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 party hereto 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 party hereto 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
70
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 party hereto
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 party hereto 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 Administrative
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
Administrative Agent and to deliver promptly to the Administrative Agent
evidence in writing of such other agent's acceptance of such appointment.
(c) SERVICE OF PROCESS. Each Obligor party hereto 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 Administrative Agent. Each Obligor party hereto
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.
(d) NO LIMITATION ON SERVICE OR SUIT. Nothing in this Section shall affect
the right of any Agent or any Bank to serve process in any other manner
permitted by law or limit the right of any Agent or any Bank to bring
proceedings against any Obligor in the courts of any jurisdiction or
jurisdictions.
(e) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Financing Document or in any other
document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Agents
and each Bank, regardless of any investigation made by any Agent or any Bank or
on their behalf and notwithstanding that any Agent or any Bank may have had
notice or knowledge of any Default at the time of any L/C Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
Section 9.13. LOANS AND UNREIMBURSED DRAWINGS. Except as otherwise expressly
set forth herein, Unreimbursed Drawings and Unreimbursed Fundings shall be
subject to the provisions contained herein which govern the making, funding and
maintenance of Loans, including, without limitation, the provisions of
ARTICLE 8.
Section 9.14. CONFIDENTIALITY. Each of the Agents and the Banks agrees to
keep confidential the Confidential Information (as defined below), except that
the Confidential Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
71
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Confidential
Information and instructed to keep such Confidential Information confidential);
(ii) to the extent requested by any regulatory authority; (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process; PROVIDED that in the case of any intended disclosure under this
clause (iii), the Recipient (as defined below) shall (unless otherwise required
by applicable law) give the Parent 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 Parent an opportunity to seek an appropriate protective order;
(iv) to any other party to this Agreement; (v) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (vi) subject to an agreement
containing provisions substantially the same as those of this Section, to
(A) any Assignee of or Participant in, or any prospective Assignee of or
Participant in, any of its rights or obligations under this Agreement or
(B) any direct or indirect contractual counterparty or prospective counterparty
(or such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Obligors; (vii) with the consent of the Borrower; (viii) to the extent such
Confidential Information (A) becomes publicly available other than as a result
of a breach of this Section or (B) becomes available to any Agent or any Bank on
a nonconfidential basis from a source other than the Borrower; (ix) to any
state, federal or foreign authority or examiner (including the National
Association of Insurance Commissioners or any other similar organization)
regulating any Bank; or (x) to any rating agency when required by it (it being
understood that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Obligors received by it from such Bank). In addition, the Agents
and the Banks may disclose the existence of this Agreement and information about
this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to the Agents and the Banks in
connection with the administration and management of this Agreement, the other
Financing Documents, the Commitments and the L/C Credit Extensions. For the
purposes of this Section, the term "CONFIDENTIAL INFORMATION" shall mean
non-public information furnished by or on behalf of the Parent or any of its
Subsidiaries to any Agent, any Bank or other Person exercising rights hereunder
or required to be bound hereby (collectively "RECIPIENTS"); PROVIDED that, in
the case of information received from an Obligor after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential; PROVIDED FURTHER that information regarding the "structure and tax
aspects" of the transactions contemplated by the Financing Documents, within the
meaning of Treasury Regulation 1.6011-4T, shall not constitute Confidential
Information hereunder. Any Person required to maintain the confidentiality of
Confidential Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Confidential Information
as such Person would accord to its own confidential information.
Each Recipient shall agree that, in addition to all other remedies
available, the Parent shall be entitled to specific performance and injunctive
and other equitable relief as a remedy for any breach of this SECTION 9.14 by
such Recipient.
Notwithstanding paragraph 7 of the Commitment Letter referred to in the
definition of Financing Documents, this SECTION 9.14 shall supersede
paragraph 6 of such Commitment Letter.
Section 9.15. NO CHALLENGES. The Borrower hereby waives and agrees not to
assert any right to challenge the legality, validity or enforceability of the
Guarantee made by Alpha under the Borrower Subsidiary Guarantee or to assert any
claim against Alpha or any other Person that would affect the legality, validity
or enforceability of such Guarantee.
72
ARTICLE 10
GUARANTEE
Section 10.01. THE GUARANTEE. (a) Each of the Parent and each Parent
Subsidiary Guarantor hereby, jointly and severally, absolutely, unconditionally
and irrevocably guarantees the full and punctual payment when due (whether at
scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise) of all Obligations of each other Obligor now or hereafter
existing under or in respect of the Financing Documents (such Obligations being
the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including, without limitation, Attorney Costs) incurred by any Agent or any
Bank in enforcing any rights hereunder or any other Financing Document. Without
limiting the generality of the foregoing, each of the Parent and each Parent
Subsidiary Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Obligor to any
Agent or any Bank under or in respect of the Financing Documents but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Obligor.
(b) Each of the Parent and each Parent Subsidiary Guarantor, each Agent and
each Bank, hereby confirms that it is the intention of all such Persons
that the Guarantee contained in this SECTION 10.01 and the Obligations of
each Parent Subsidiary Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this
Guarantee and the Obligations of each of the Parent and each Parent
Subsidiary Guarantor hereunder. To effectuate the foregoing intention,
the Agents, the Banks and the Parent and Parent Subsidiary Guarantors
hereby irrevocably agree that the Obligations of each Parent Subsidiary
Guarantor under this Guarantee at any time shall be limited to the
maximum amount as will result in the Obligations of such Guarantor under
this Guarantee not constituting a fraudulent transfer or conveyance.
(c) Each of the Parent and each Parent Subsidiary Guarantor hereby
unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Agent or any Bank under this
Guarantee or any other guarantee, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the
Agents and the Banks under or in respect of the Financing Documents.
Section 10.02. GUARANTEE UNCONDITIONAL. Each of the Parent and each Parent
Subsidiary Guarantor guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Financing Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agents or the Banks with
respect thereto. The Obligations of each Guarantor under or in respect of this
Guarantee are independent of the Guaranteed Obligations or any other Obligations
of any other Obligor under or in respect of the Financing Documents, and a
separate action or actions may be brought and prosecuted against each Guarantor
to enforce this Guarantee, irrespective of whether any action is brought against
the Borrower or any other Obligor or whether the Borrower or any other Obligor
is joined in any such action or actions. The obligations of each of the Parent
and the Parent Subsidiary Guarantors 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:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of any Obligor under any Financing Document, by
operation of law or otherwise;
73
(b) any modification or amendment of or supplement to any Financing Document
(including without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or any
of its Subsidiaries or otherwise);
(c) any release, impairment, non-perfection or invalidity of any direct or
indirect security for any obligation of any Obligor under any Financing
Document or any taking, release or amendment or waiver of, or consent to
departure from, any other guarantee for all or any of the Guaranteed
Obligations;
(d) any manner of application of any direct or indirect security for any
obligation of any Obligor under any Financing Document, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any such security for all or any of the
Guaranteed Obligations or any other Obligations of any Obligor under the
Financing Documents or any other assets of any Obligor or its
Subsidiaries;
(e) any change in the corporate existence, structure or ownership of any
Obligor, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any Obligor or its assets or any resulting release
or discharge of any obligation of any Guarantor or the Borrower contained
in any Financing Document;
(f) any failure by any Agent or any Bank to disclose to any Obligor any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Obligor now or
hereafter known to such Agent or such Bank;
(g) the failure of any other Person to execute or deliver this Agreement or
any other guarantee or agreement or the release or reduction of liability
of any Guarantor or any other guarantor or surety with respect to the
guaranteed obligations;
(h) the existence of any claim, set-off or other rights which the Parent or
any Parent Subsidiary Guarantor may have at any time against the
Borrower, any Agent, any Bank, any other Obligor 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;
(i) any invalidity or unenforceability for any reason of any Financing
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any other Obligor of any amount
payable by it under any Financing Document; or
(j) any other act or omission to act or delay of any kind by the Borrower,
any Agent, any Bank, any other Obligor or any other Person or any other
circumstance whatsoever (including, without limitation, the effect of any
statute of limitations on the liability of any other Person for any of
the Guaranteed Obligations) or any existence of or reliance on any
representation by any Agent or any Bank which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge
of or defense to such 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, any L/C Obligation and all other amounts payable by the Borrower or any
Obligor 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 or any other Obligor under the Financing Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower, any other Obligor or otherwise,
the Parent and each Parent Subsidiary 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.
74
Section 10.04. WAIVERS AND ACKNOWLEDGMENTS BY THE GUARANTORS. (a) Each of
the Parent and each Parent Subsidiary Guarantor unconditionally and irrevocably
waives notice of acceptance, promptness, diligence, presentment, demand for
performance, protest or dishonor, notice of nonperformance, default,
acceleration and any other notice with respect to the Guaranteed Obligations and
this Guarantee and any requirement that any Agent or any Bank protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Obligor or any other Person or any direct or
indirect security for any obligation of any Obligor under any Financing
Document.
(b) Each of the Parent and each Parent Subsidiary Guarantor hereby
unconditionally and irrevocably waives any right to revoke this Guarantee
and acknowledges that this Guarantee is continuing in nature and applies
to all Guaranteed Obligations, whether existing now or in future.
(c) Each of the Parent and each Parent Subsidiary Guarantor hereby
unconditionally and irrevocably waives (i) any defense arising by reason
of any claim or defense based upon an election of remedies by any Agent
or any Bank that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against
any other Obligor, any other guarantor or any other Person or any direct
or indirect security for any obligation of any Obligor under any
Financing Document and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.
(d) Each of the Parent and each Parent Subsidiary Guarantor hereby
unconditionally and irrevocably waives any duty on the part of any Agent
or any Bank to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Obligor or any of its
Subsidiaries now or hereafter known by such Agent or such Bank.
(e) Each of the Parent and each Parent Subsidiary Guarantor acknowledges
that it will receive substantial direct and indirect benefits from the
financing arrangements contemplated by the Financing Documents and that
the waivers set forth in SECTION 10.02 and this SECTION 10.04 are
knowingly made in contemplation of such benefits.
Section 10.05. SUBROGATION. Each of the Parent and each Parent Subsidiary
Guarantor hereby unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter acquire against the Borrower, any other
Obligor or any other guarantor that arise from the existence, payment,
performance or enforcement of such Guarantor's Obligations under or in respect
of this Guarantee or any other Financing Document, including, without
limitation, any right of subrogation and any right to participate in any claim
or remedy of any Agent or any Bank against the Borrower, any other Obligor or
any other guarantor or any direct or indirect security for any obligation of any
Obligor under any Financing Document, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower, any other Obligor or
any other guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all amounts of principal of and interest on
the Loans, all L/C Obligations and all other amounts payable by the Borrower or
any Obligor under the Financing Documents have been paid in full and the
Commitments have been terminated. If any amount shall be paid to such Guarantor
in violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guarantee, (b) the Termination Date and
(c) the latest date of expiration or termination of all L/C Obligations, such
amount shall be received and held in trust for the benefit of the Agents and the
Banks, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered
75
to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guarantee, whether matured
or unmatured, in accordance with the terms of the Financing Documents, or to be
held as security for any Guaranteed Obligations or other amounts payable under
this Guarantee thereafter arising.
Section 10.06. STAY OF ACCELERATION. In the event that acceleration of the
time for payment of any amount payable by the Borrower or any Obligor under any
Financing Document is stayed upon insolvency, bankruptcy or reorganization of
any such Person, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the Parent and the
Parent Subsidiary Guarantors hereunder forthwith on demand by the Required
Banks.
76
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/ Xxxxx X'Xxxxx-Xxxxx
-----------------------------------------
Name: Xxxxx X'Xxxxx-Xxxxx
Title: Managing Director
Address: 00, xxxxxxxxx Xxxxxx-Xxxxxxxx
Xxxxxxxxx
X-0000 Xxxxxxxxxx
Facsimile number: x000 00 00 00
Telephone number: x000 00 00 00 000
E-mail address: xxxxxxxxxxxx@xxxx.xxx
GUARANTOR
TYCO INTERNATIONAL LTD.
By: /s/ Xxxxx X. XxxxXxxxxxx
-----------------------------------------
Name: Xxxxx X. XxxxXxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Address: The Zurich Center, 0xx Xxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX00
Xxxxxxx
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
E-mail address: xxxxxxxxxxxx@xxxx.xxx
GUARANTOR
---------
SENSORMATIC ELECTRONICS
CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
GUARANTOR
---------
XXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
GUARANTOR
---------
INNERDYNE, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent
By:/s/ Jaap L. Tonckens
-------------------------------------------
Name: Jaap L. Tonckens
Title: Vice President
JPMORGAN CHASE BANK, as Documentation
Agent
By:/s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:/s/ Jaap L. Tonckens
-------------------------------------------
Name: Jaap L. Tonckens
Title: Vice President
Citicorp North America, Inc.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: XXXXXX X. XXXXXX
Title: ATTORNEY-IN-FACT
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By:/s/ Xxxxxx Xxxx
-------------------------------------------
Name: Xxxxxx Xxxx
Title: Director
By:/s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
XXXXXXX SACHS CREDIT PARTNERS, L.P.
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: XXXXXXX X. XXXXXX
Title: AUTHORIZED SlGNATORY
JPMORGAN CHASE BANK
By:/s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
ABN AMRO BANK N.V.
By:/s/ Xxxxx Xxx
-------------------------------------------
Name: Xxxxx Xxx
Title: Executive Vice President
By:/s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SOCIETE GENERALE
By:/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director, Corporate Banking
UBS AG, STAMFORD BRANCH
By:/s/ Xxxxxxx X. Saint
-------------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
By:/s/ Xxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Associate Director
Banking Products Services, US
SCHEDULE I
PRICING SCHEDULE
The "EURO-DOLLAR MARGIN" and "BASE RATE MARGIN" for any day are the
percentages set forth below in the applicable row and column based upon the
Status that exists on such day:
STATUS LEVEL I LEVEL II LEVEL III
------ -------- -------- ---------
EURO-DOLLAR MARGIN:......................................... 1.75% 2.50% 3.25%
BASE RATE MARGIN:........................................... .75% 1.50% 2.25%
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 Debt
Securities are rated BBB or higher by S&P and Baa2 or higher by Xxxxx'x.
"LEVEL II STATUS" exists at any date if, at such date, (i) the Borrower's
Debt Securities are rated BBB- or higher by S&P and Baa3 or higher by Xxxxx'x
and (ii) Level I Status does not exist.
"LEVEL III STATUS" exists at any date if, at such date, the Borrower's Debt
Securities are rated BB+ or lower by S&P or Ba1 or lower by Xxxxx'x.
"STATUS" refers to the determination of which of Level I Status, Level II
Status or Level III Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the Borrower's Debt Securities, and any rate 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 status applicable to
the lower of the two ratings will apply (E.G., BBB-/Ba1 is treated as BB+/Ba1).
If the Borrower is split-rated and the rating differential is more than one
notch, the status applicable to the rating that is one notch higher than the
lower of the two ratings will apply (E.G., BBB/Ba1 is treated as BBB-/Baa3).
SCHEDULE II
TO THE CREDIT AGREEMENT
COMMITMENTS
BANK COMMITMENT
---- -----------------
Bank of America, N.A........................................ $ 183,333,333.34
Xxxxxx Xxxxxxx Senior Funding, Inc.......................... $ 183,333,333.34
JPMorgan Chase Bank......................................... $ 183,333,333.33
Citicorp North America, Inc................................. $ 183,333,333.33
Xxxxxxx Xxxxx Credit Partners L.P........................... $ 183,333,333.33
Credit Suisse First Boston, Cayman Island Branch............ $ 183,333,333.33
ABN AMRO Bank N.V........................................... $ 100,000,000.00
Credit Lyonnais New York Branch............................. $ 100,000,000.00
Societe Generale............................................ $ 100,000,000.00
UBS AG. Stamford Branch..................................... $ 100,000,000.00
-----------------
TOTAL....................................................... $1,500,000,000.00
SCHEDULE III
EXISTING LETTERS OF CREDIT
None.
SCHEDULE 4.05
EXISTING LITIGATION
None.
SCHEDULE 9.01
TO THE CREDIT AGREEMENT
ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES
ADMINISTRATIVE AGENT/CO-AGENT
ADMINISTRATIVE AGENT'S OFFICE
(FOR PAYMENTS AND REQUESTS FOR CREDIT EXTENSIONS)
BANK OF AMERICA, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-15-04
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx.x.xxxxxxxx@xxxxxxxxxxxxx.xxx
Account No.: 1366212250600
Account Name: Corporate Credit Support
Ref: Tyco International
ABA# 000000000
OTHER NOTICES AS ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-08-19
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
SYNDICATION AGENT/CO-AGENT
XXXXXX XXXXXXX SENIOR FUNDING, INC.
0000 Xxxxxxxx--00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx--Loan Administration
Phone: (000) 000-0000
Fax: (000) 000-0000 / 1866
E-mail: xxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
L/C ISSUERS
BANK OF AMERICA, N.A.
Trade Operations Center--Chicago
000 X Xx Xxxxx Xx.
Mail Code: IL1-231-17-00
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx--Assistant Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxx.xxxxx@xxxxxxxxxxxxx.xxx
[Complete for other L/C Issuers
Name of L/C Issuer
Street Address
Mail Code:
Attn:
Phone:
Fax:
E-mail:]
PARENT SUBSIDIARY GUARANTORS
SENSORMATIC ELECTRONICS CORPORATION
c/o Tyco International (US) Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
With a copy to:
Xxxxxxx Xxxx-Xxxxxx, Treasurer
Tyco International (US) Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxxxxx@xxxx.xxx
XXXXX TECHNOLOGIES, INC.
c/o Tyco International (US) Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
With a copy to:
Xxxxxxx Xxxx-Xxxxxx, Treasurer
Tyco International (US) Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxxxxx@xxxx.xxx
2
INNERDYNE, INC.
c/o U.S. Surgical Legal Department
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000-000-0000
E-mail: xxxxx.xxxxxxxx@xxxxxx.xxx
With a copy to:
Xxxxxxx Xxxx-Xxxxxx, Treasurer
Tyco International (US) Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxxxxx@xxxx.xxx
3
