Exhibit 10.10
FIVE YEAR CREDIT AGREEMENT
Dated as of October 22, 2004
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the
"Company"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") and initial issuing banks (the "Initial Issuing Banks")
listed on the signature pages hereof, and CITICORP USA, INC. ("CUSA"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
JPMORGAN CHASE BANK, as syndication agent, BANK OF AMERICA, N.A., BARCLAYS BANK
PLC, DEUTSCHE BANK AG NEW YORK BRANCH and UBS SECURITIES LLC, as documentation
agents, and CITIGROUP GLOBAL MARKETS INC. and X.X. XXXXXX SECURITIES INC., as
joint lead arrangers and co-book managers, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
00000000, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Foreign Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and
the Lenders for such purpose and (c) in any such case, such other account
of the Agent as is designated in writing from time to time by the Agent to
the Company and the Lenders for such purpose.
"Alternate Currency" means any lawful currency other than Dollars
and the Major Currencies that is freely transferrable and convertible into
Dollars.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Letter of Credit Rate" means, as of any date, a
percentage per annum determined by reference to the Public Debt Rating in
effect on such date as set forth below:
----------------------------------- -------------------------------------
Public Debt Rating Applicable Letter of Credit Rate
S&P/Xxxxx'x
----------------------------------- -------------------------------------
Level 1
-------
A+ or A1 or above 0.230%
----------------------------------- -------------------------------------
Level 2
-------
Lower than Level 1 but at least A 0.270%
or A2
----------------------------------- -------------------------------------
Level 3
-------
Lower than Level 2 but at least 0.360%
A- or A3
----------------------------------- -------------------------------------
Level 4
-------
Lower than Level 3 but at least 0.505%
BBB+ or Baa1
----------------------------------- -------------------------------------
Level 5
-------
Lower than Xxxxx 0 0.725%
----------------------------------- -------------------------------------
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurocurrency Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
----------------------------------- -------------------------------------
Public Debt Rating Applicable Margin for
S&P/Xxxxx'x Eurocurrency Rate Advances
----------------------------------- -------------------------------------
Level 1
-------
A+ or A1 or above 0.180%
----------------------------------- -------------------------------------
Level 2
-------
Lower than Level 1 but at least A 0.220%
or A2
----------------------------------- -------------------------------------
Level 3
-------
Lower than Level 2 but at least 0.260%
A- or A3
----------------------------------- -------------------------------------
2
----------------------------------- -------------------------------------
Level 4
-------
Lower than Level 3 but at least 0.380%
BBB+ or Baa1
----------------------------------- -------------------------------------
Level 5
-------
Lower than Xxxxx 0 0.600%
----------------------------------- -------------------------------------
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
------------------------------------- -----------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
------------------------------------- -----------------------------------
Level 1
-------
A+ or A1 or above 0.070%
------------------------------------- -----------------------------------
Level 2
-------
Lower than Level 1 but at least A 0.080%
or A2
------------------------------------- -----------------------------------
Level 3
-------
Lower than Level 2 but at least A- 0.090%
or A3
------------------------------------- -----------------------------------
Level 4
-------
Lower than Level 3 but at least 0.120%
BBB+ or Baa1
------------------------------------- -----------------------------------
Level 5
-------
Lower than Xxxxx 0 0.150%
------------------------------------- -----------------------------------
"Applicable Utilization Fee" means, as of any date that the sum of
the aggregate principal amount of the Advances plus the aggregate
Available Amount of the Letters of Credit exceeds 50% of the aggregate
Revolving Credit Commitments, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
------------------------------------ ------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
------------------------------------ ------------------------------------
Level 1
-------
A+ or A1 or above 0.050%
------------------------------------ ------------------------------------
Level 2
-------
Lower than Level 1 but at least A 0.050%
or A2
------------------------------------ ------------------------------------
Level 3
-------
Lower than Level 2 but at least A- 0.100%
or A3
------------------------------------ ------------------------------------
Level 4
-------
Lower than Level 3 but at least 0.125%
BBB+ or Baa1
------------------------------------ ------------------------------------
3
------------------------------------ ------------------------------------
Level 5
-------
Lower than Xxxxx 0 0.125%
------------------------------------ ------------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing),
converting all non-Dollar amounts into the Dollar Equivalent thereof at
such time.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/32 of 1% or, if there
is no nearest 1/32 of 1%, to the next higher 1/32 of 1%) of (i) 1/2
of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month Dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.08(a)(i).
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"Borrower" means the Company or any Designated Subsidiary, as the
context requires.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advance or LIBO
Rate Advance, on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance or LIBO Rate
Advance (or, in the case of an Advance denominated in Euros, on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open) and, if the applicable Business Day relates to
any Local Rate Advance, on which banks are open for business in the
country of issue of the currency of such Local Rate Advance.
"Change of Control" means that (i) any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended (the "Act")) (other than the Company, any Subsidiary of
the Company or any savings, pension or other benefit plan for the benefit
of employees of the Company or its Subsidiaries) which theretofore
beneficially owned less than 30% of the Voting Stock of the Company then
outstanding shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and Exchange Commission under
the Act) of 30% or more in voting power of the outstanding Voting Stock of
the Company or (ii) during any period of twelve consecutive calendar
months commencing at the Effective Date, individuals who at the beginning
of such twelve-month period were directors of the Company shall cease to
constitute a majority of the Board of Directors of the Company.
"Citibank" means Citibank, N.A.
"Commitment" means a Revolving Credit Commitment or a Letter of
Credit Commitment.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance (each of
which shall be a "Type" of Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
5
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Subsidiary" means, at any time, any Subsidiary the
accounts of which are required at that time to be included on a
Consolidated basis in the Consolidated financial statements of the
Company, assuming that such financial statements are prepared in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.09 or 2.12.
"Debt" means, with respect to any Person: (i) indebtedness of such
Person, which is not limited as to recourse to such Person, for borrowed
money (whether by loan or the issuance and sale of debt securities) or for
the deferred (for 90 days or more) purchase or acquisition price of
property or services; (ii) indebtedness or obligations of others which
such Person has assumed or guaranteed; (iii) indebtedness or obligations
of others secured by a lien, charge or encumbrance on property of such
Person whether or not such Person shall have assumed such indebtedness or
obligations; (iv) obligations of such Person in respect of letters of
credit (other than performance letters of credit, except to the extent
backing an obligation of any Person which would be Debt of such Person),
acceptance facilities, or drafts or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person;
and (v) obligations of such Person under leases which are required to be
capitalized on a balance sheet of such Person in accordance with GAAP.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any corporate Subsidiary of the
Company designated for borrowing privileges under this Agreement pursuant
to Section 9.07.
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit D hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each mean lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Initial Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto and, with respect to any other
Lender, the office of such Lender specified as its "Domestic Lending
Office" in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time
to time specify to the Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose operations are
conducted primarily in the United States excluding any Subsidiary whose
assets consist primarily of
6
the stock of Subsidiaries whose operations are conducted outside the
United States of America.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) with respect to the Revolving Credit
Facility (i) a Lender; (ii) an Affiliate of a Lender; (iii) a commercial
bank organized under the laws of the United States, or any State thereof,
and having total assets in excess of $10,000,000,000; (iv) a savings and
loan association or savings bank organized under the laws of the United
States, or any State thereof, and having a net worth of at least
$500,000,000, calculated in accordance with GAAP; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded
special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that is
described in this clause (v); and (vi) the central bank of any country
that is a member of the Organization for Economic Cooperation and
Development and (b) with respect to the Letter of Credit Facility, a
Person that is an Eligible Assignee under subclause (iii) or (v) of clause
(a) of this definition and is approved by the Agent and, unless a Default
has occurred and is continuing at the time any assignment is effected
pursuant to Section 8.07, the Borrower, such approval not to be
unreasonably withheld or delayed, provided, however, that neither the
Borrower nor any Affiliate of the Borrower shall qualify as an Eligible
Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
7
"Equivalent" in Dollars of any Foreign Currency on any date means
the equivalent in Dollars of such Foreign Currency determined by using the
quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Foreign Currency in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement, and the "Equivalent" in any Foreign Currency of Dollars means
the equivalent in such Foreign Currency of Dollars determined by using the
quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange such Foreign Currency for Dollars in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan of such Person or any of its ERISA
Affiliates unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to a Plan of such Person or any of its
ERISA Affiliates within the following 30 days, and the contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of such Plan is
required under Section 4043(b)(3) of ERISA (taking into account Section
4043(b)(2) of ERISA) to notify the PBGC that the event is about to occur;
(b) the application for a minimum funding waiver with respect to a Plan of
such Person or any of its ERISA Affiliates; (c) the provision by the
administrator of any Plan of such Person or any of its ERISA Affiliates of
a notice of intent to terminate such Plan in a distress termination
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of such Person or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by such Person or any of its ERISA Affiliates
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan of such Person or any of its
ERISA Affiliates; (g) the adoption of an amendment to a Plan of such
Person or any of its ERISA Affiliates requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the institution by
the PBGC of proceedings to terminate a Plan of such Person or any of its
ERISA Affiliates pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
8
"Escrow" means an escrow established with an independent escrow
agent pursuant to an escrow agreement reasonably satisfactory in form and
substance to the Person or Persons asserting the obligation of one or more
Borrowers to make a payment to it or them hereunder.
"EURIBO Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing, the rate per annum
appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Agent from time to time for purposes of providing quotations of interest
rates applicable to deposits in Euro by reference to the Banking
Federation of the European Union Settlement Rates for deposits in Euro) at
approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in Euros
with a maturity comparable to such Interest Period or, if for any reason
such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the respective rates per annum at which deposits in Euros are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period (subject, however, to the provisions of Section 2.08).
"Euro" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation.
"Eurocurrency Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurocurrency Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a) (i) in the case of any Advance denominated in Dollars or
any Major Currency other than Euros, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on the applicable
Telerate Page as the London interbank offered rate for deposits in Dollars
or in the relevant Major Currency at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period or, if for any reason such rate
is not available, the average (rounded upward to the nearest whole
multiple of 1/32 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars or in the relevant
Major Currency are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business
9
Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period
or, (ii) in the case of any Advance denominated in Euros, the EURIBO Rate
by (b) a percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage for such Interest Period. If the Telerate Page is unavailable,
the Eurocurrency Rate for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the provisions
of Section 2.09.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Major Currency that bears interest as
provided in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for
all Eurocurrency Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Facility" means the Revolving Credit Facility or the Letter of
Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
10
"Fixed Rate Advance" has the meaning specified in Section
2.03(a)(i), which Advance shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Major Currency or any Alternate
Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period
selected by the Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months and, if available to all Lenders, nine months, as the Borrower
requesting the Borrowing may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(i) such Borrower may not select any Interest Period that ends
after the scheduled Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the
11
calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Issuing Bank" means an Initial Issuing Bank or any Eligible
Assignee to which a portion of the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.06 so long as such Eligible
Assignee expressly agrees to perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its
Applicable Lending Office (which information shall be recorded by the
Agent in the Register), for so long as the Initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.
"L/C Cash Deposit Account" means an interest bearing cash deposit
account to be established and maintained by the Agent, over which the
Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.07(b)(i).
"Lenders" means, collectively, (i) Initial Lenders, (ii) the Issuing
Banks and (iii) each Eligible Assignee that shall become a party hereto
pursuant to Section 9.06(a), (b) and (c).
"Letter of Credit" has the meaning specified in Section 2.01(b).
"Letter of Credit Application" has the meaning specified in Section
2.04(a).
"Letter of Credit Commitment" means, with respect to each Issuing
Bank, the obligation of such Issuing Bank to issue Letters of Credit to
any Borrower in (a) the amount set forth opposite the Issuing Bank's name
on the signature pages hereto under the caption "Letter of Credit
Commitment" or (b) if such Issuing Bank has entered into one or more
Assignment and Acceptances, the amount set forth for such Issuing Bank in
the Register maintained by the Agent pursuant to Section 9.06(d) as such
Issuing Bank's "Letter of Credit Commitment", in each case as such amount
may be reduced prior to such time pursuant to Section 2.06.
"Letter of Credit Facility" means, at any time, an amount equal to
the least of (a) the aggregate amount of the Issuing Banks' Letter of
Credit Commitments at such time, (b) $200,000,000 and (c) the aggregate
amount of the Revolving Credit Commitments, as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) (i) in the case of any Advance denominated in Dollars or any Foreign
Currency other than Euro, the rate per annum
12
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
the applicable Telerate Page as the London interbank offered rate for
deposits in Dollars or in the relevant Foreign Currency at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/32 of 1% per
annum, if such average is not such a multiple) of the rate per annum at
which deposits in Dollars or in the relevant Foreign Currency are offered
by the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period or, (ii) in the case
of any Advance denominated in Euros, the EURIBO Rate by (b) a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period. If the Telerate Page is unavailable, the LIBO Rate for
any Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
"LIBO Rate Advance" means a Competitive Bid Advance denominated in
Dollars or in any Foreign Currency and bearing interest based on the LIBO
Rate.
"Lien" means any lien, mortgage, pledge, security interest or other
charge or encumbrance of any kind.
"Local Rate Advance" means a Competitive Bid Advance denominated in
any Foreign Currency sourced from the jurisdiction of issuance of such
Foreign Currency and bearing interest at a fixed rate.
"Major Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of Japan and Euros.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate principal amount (based on the Equivalent in Dollars at
such time) of the Revolving Credit Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least 51% of
the Revolving Credit Commitments.
"Material Adverse Change" means any material adverse change in the
financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement
13
or any Note or (c) the ability of the Borrowers to perform their
obligations under this Agreement or any Note.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its
ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person or any of its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Tangible Assets of the Company and its Consolidated
Subsidiaries", as at any particular date of determination, means the total
amount of assets (less applicable reserves and other properly deductible
items) after deducting therefrom (a) all current liabilities (excluding
any thereof which are by their terms extendible or renewable at the option
of the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, as set forth in the most recent balance
sheet of the Company and its Consolidated Subsidiaries and computed in
accordance with GAAP.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Issuance" has the meaning specified in Section 2.04(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01(b).
"Payment Office" means, for any Foreign Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited
14
liability company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Process Agent" has the meaning specified in Section 9.12(a).
"Public Debt Rating" means, as of any date, the highest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Letter of Credit Rate, the Applicable Margin, the Applicable Utilization
Fee and the Applicable Percentage shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Utilization Fee
and the Applicable Percentage will be set in accordance with Level 5 under
the definition of "Applicable Letter of Credit Rate", "Applicable Margin",
"Applicable Utilization Fee" or "Applicable Percentage", as the case may
be; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Letter of Credit Rate, the Applicable
Margin, the Applicable Utilization Fee and the Applicable Percentage shall
be based upon the higher rating, provided that if the lower of such
ratings is more than one level below the higher of such ratings, the
Applicable Letter of Credit Rate, the Applicable Margin, the Applicable
Utilization Fee and the Applicable Percentage shall be determined by
reference to the level that is one level above such lower rating; (d) if
any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or Moody's,
as the case may be.
"Ratable Share" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate Revolving Credit Commitments at such
time and (b) such amount.
"Rating Condition" has the meaning specified in Section 2.06(c)(ii).
"Rating Condition Notice" has the meaning specified in Section
2.06(c)(ii).
"Reference Banks" means Citibank, Bank of America, N.A., JPMorgan
Chase Bank and Deutsche Bank AG New York Branch.
"Register" has the meaning specified in Section 9.06(d).
"Restricted Property" means (a) any property of the Company located
within the United States of America that, in the opinion of the Company's
Board of Directors, is a
15
principal manufacturing property or (b) any shares of capital stock or
Debt of any Subsidiary owning any such property.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Commitment" means as to any Lender (i) the Dollar
amount set forth opposite its name on the signature pages hereof under the
caption "Revolving Credit Commitment" or (ii) if such Lender has entered
into any Assignment and Acceptance, the Dollar amount set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.06(d) as such Lender's Revolving Credit Commitment, in each case
as the same may be terminated or reduced, as the case may be, pursuant to
Section 2.06.
"Revolving Credit Facility" means, at any time, the aggregate amount
of the Revolving Credit Commitments, as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Revolving Credit Note" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.17 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender to such
Borrower.
"Sale and Leaseback Transaction" means any arrangement with any
Person (other than the Company or a Subsidiary of the Company), or to
which any such Person is a party, providing for the leasing to the Company
or to a Subsidiary of the Company owning Restricted Property for a period
of more than three years of any Restricted Property that has been or is to
be sold or transferred by the Company or such Subsidiary to such Person,
or to any other Person (other than the Company or a Subsidiary of the
Company) to which funds have been or are to be advanced by such Person on
the security of the leased property. It is understood that arrangements
pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954, as
amended, or any successor provision having similar effect, are not
included within this definition of "Sale and Leaseback Transaction".
"Single Employer Plan" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person
other than such Person and its ERISA Affiliates or (b) was so maintained
and in respect of which such Person or any of its
16
ERISA Affiliates could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Telerate Page" means, as applicable, page 3740 or 3750 (or any
successor pages, respectively) of Moneyline Telerate Service.
"Termination Date" means the earlier of (a) October 22, 2009 and (b)
the date of termination in whole of the Commitments pursuant to Section
2.06(a) or Section 6.01 or, if all Lenders elect to terminate their
Commitments as provided therein, Section 2.06(d).
"Threatened" means, with respect to any action, suit, investigation,
litigation or proceeding, a written communication to the Company or a
Designated Subsidiary, as the case may be, expressing an intention to
immediately bring such action, suit, investigation, litigation or
proceeding.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit to any Borrower in an amount (converting all non-Dollar amounts
into the then Dollar Equivalent thereof) equal to the excess of (a) the
amount of its Letter of Credit Commitment over (b) the aggregate Available
Amount of all Letters of Credit issued by such Issuing Bank.
"Unused Commitment" means, with respect to each Lender at any time,
(a) the amount of such Lender's Revolving Credit Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all Revolving
Credit Advances (based in respect of any Advances denominated in a Major
Currency on the Equivalent in Dollars at such time) made by such Lender
(in its capacity as a Lender) and outstanding at such time, plus (ii) such
Lender's Ratable Share of (A) the aggregate principal amount of the
Competitive Bid Advances (based in respect of any Advances denominated in
a Foreign Currency on the Equivalent in Dollars at such time) and (B) the
aggregate Available Amount of all the Letters of Credit outstanding at
such time (based in respect of any Letters of Credit denominated in a
Major Currency on the Equivalent in Dollars at such time).
17
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed, and all financial computations
and determinations pursuant hereto shall be made, in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"); provided,
however, that, if any changes in accounting principles from those used in the
preparation of such financial statements have been required by the rules,
regulations, pronouncements or opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and have been adopted by the Company
with the agreement of its independent certified public accountants, the Lenders
agree to consider a request by the Company to amend this Agreement to take
account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Advances and Letters of Credit.
(a) Revolving Credit Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Revolving Credit Advances to any
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount (based in
respect of any Revolving Credit Advance denominated in a Major Currency on the
Equivalent in Dollars determined on the date of delivery of the applicable
Notice of Revolving Credit Borrowing), not to exceed such Lender's Unused
Commitment. Each Revolving Credit Borrowing shall be in an aggregate amount not
less than $10,000,000 (or the Equivalent thereof in any Major Currency
determined on the date of delivery of the applicable Notice of Revolving Credit
Borrowing) or an integral multiple of $1,000,000 (or the Equivalent thereof in
any Major Currency determined on the date of delivery of the applicable Notice
of Revolving Credit Borrowing) in excess thereof and shall consist of Revolving
Credit Advances of the same Type made on the same day by the Lenders ratably
according to their respective Revolving Credit Commitments; provided, however,
that if there is no unused portion of the Commitment of one or more Lenders at
the time of any requested Revolving Credit Borrowing such Borrowing shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lender or Lenders who do then have an Unused Commitment ratably according to
the aggregate Unused Commitments. Notwithstanding anything herein to the
contrary, no
18
Revolving Credit Borrowing may be made in a Major Currency if, after giving
effect to the making of such Revolving Credit Borrowing, the Equivalent in
Dollars of the aggregate amount of outstanding Revolving Credit Advances
denominated in Major Currencies, together with the Equivalent in Dollars of
the aggregate amount of outstanding Competitive Bid Advances denominated in
Foreign Currencies, would exceed $500,000,000. Within the limits of each
Lender's Revolving Credit Commitment, any Borrower may borrow under this
Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue performance and financial letters of
credit (each, a "Letter of Credit") in any Major Currency for the account of any
Borrower from time to time on any Business Day during the period from the
Effective Date until 30 days before the Termination Date (i) in an aggregate
Available Amount for all Letters of Credit issued by all Issuing Banks not to
exceed at any time the Letter of Credit Facility at such time, (ii) in an amount
for each Issuing Bank not to exceed the amount of such Issuing Banks' Letter of
Credit Commitment at such time and (iii) in an amount for each such Letter of
Credit not to exceed an amount equal to the Unused Commitments of the Lenders at
such time, in each case, converting all non-Dollar amounts into the Dollar
Equivalent thereof; provided that any Borrower may request that Letters of
Credit be issued for the account of any of its Subsidiaries (without designating
such Subsidiary as a Designated Subsidiary) so long as such Borrower remains
obligated for the reimbursement of any drawings under such Letters of Credit
under the terms of this Agreement. No Letter of Credit shall have an expiration
date (including all rights of the applicable Borrower or the beneficiary to
require renewal) of later than the Termination Date. Within the limits referred
to above, any Borrower may request the issuance of Letters of Credit under this
Section 2.01(b), repay any Revolving Credit Advances resulting from drawings
thereunder pursuant to Section 2.04(c) and request the issuance of additional
Letters of Credit under this Section 2.01(b). Each letter of credit listed on
Schedule 2.01(b) shall be deemed to constitute a Letter of Credit issued
hereunder, and each Lender that is an issuer of such a Letter of Credit shall,
for purposes of Section 2.04, be deemed to be an Issuing Bank for each such
letter of credit, provided that any renewal or replacement of any such letter of
credit shall be issued by an Issuing Bank pursuant to the terms of this
Agreement. The terms "issue", "issued", "issuance" and all similar terms, when
applied to a Letter of Credit, shall include any renewal, extension or amendment
thereof.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
10:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in any Major
Currency, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars
or (z) 9:00 A.M. (New York City time) on the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by any Borrower to the Agent (and the Agent shall, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
immediately relay such notice to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed
19
immediately in writing, or telecopier or telex in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
Credit Borrowing, (ii) Type of Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv)
in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances, initial Interest Period and currency for each such Revolving Credit
Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the date
of such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Major Currency, make available for the account of its Applicable Lending Office
to the Agent at the applicable Agent's account, in same day funds, such Lender's
ratable portion (as determined in accordance with Section 2.01) of such
Revolving Credit Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower requesting the Revolving Credit
Borrowing at the Agent's aforesaid address or at the applicable Payment Office,
as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, a Borrower may not select Eurocurrency Rate Advances for any
proposed Revolving Credit Borrowing if the obligation of the Lenders to make
Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.09 or
2.12.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the time of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower proposing such Revolving Credit
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Revolving Credit Advances
comprising such
20
Revolving Credit Borrowing and (B) the cost of funds incurred by the Agent in
respect of such amount and (ii) in the case of such Lender, (A) the Federal
Funds Rate in the case of Advances denominated in Dollars or (B) the cost of
funds incurred by the Agent in respect of such amount in the case of Advances
denominated in any Major Currency. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may request Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring seven days prior to the Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount (based in respect of any Advance
denominated in a Foreign Currency on the Equivalent in Dollars on such Business
Day) of the Advances then outstanding shall not exceed the aggregate amount of
the Unused Commitments. Notwithstanding anything herein to the contrary, no
Competitive Bid Borrowing may be made in a Foreign Currency if, after giving
effect to the making of such Revolving Credit Borrowing, the Equivalent in
Dollars of the aggregate amount of outstanding Competitive Bid Advances
denominated in Foreign Currencies, together with the Equivalent in Dollars of
the aggregate amount of outstanding Revolving Credit Advances denominated in
Major Currencies, would exceed $500,000,000.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent (and the Agent shall, in the case
of a Competitive Bid Borrowing not consisting of Fixed Rate Advances or
LIBO Rate Advances to be denominated in Dollars, immediately notify the
Sub-Agent), by telecopier or telex, a notice of a Competitive Bid
Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially the
form of Exhibit B-2 hereto, specifying therein the requested (A) date of
such proposed Competitive Bid Borrowing, (B) aggregate amount of such
proposed Competitive Bid Borrowing, (C) interest rate basis and day count
convention to be offered by the Lenders, (D) currency of such proposed
Competitive Bid Borrowing, (E) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period of each Competitive Bid
Advance to be made as part of such Competitive Bid Borrowing, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances or
Local Rate Advances, maturity date for repayment of each Fixed Rate
Advance or Local Rate Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date occurring
five days after the date of such Competitive Bid Borrowing or later than
the Termination Date), (F) interest payment date or dates relating
thereto, (G) location of such Borrower's account to which funds are to be
advanced, and (H) other terms (if any) to be applicable to such
21
Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
time) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in its Notice of
Competitive Bid Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (each Advance comprising any such
Competitive Bid Borrowing being referred to herein as a "Fixed Rate
Advance") and that the Advances comprising such proposed Competitive Bid
Borrowing shall be denominated in Dollars, (x) 10:00 A.M. (New York City
time) at least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall instead specify in its
Notice of Competitive Bid Borrowing that the Advances comprising such
Competitive Bid Borrowing shall be LIBO Rate Advances denominated in
Dollars, (y) 3:00 P.M. (New York City time) at least three Business Days
prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such proposed Competitive Bid Borrowing shall be
either Fixed Rate Advances denominated in any Foreign Currency or Local
Rate Advances denominated in any Foreign Currency and (z) 3:00 P.M. (New
York City time) at least five Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall instead specify
in its Notice of Competitive Bid Borrowing that the Advances comprising
such Competitive Bid Borrowing shall be LIBO Rate Advances denominated in
any Foreign Currency. Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on such Borrower. Any Notice of Competitive Bid
Borrowing by a Designated Subsidiary shall be given to the Agent in
accordance with the preceding sentence through the Company on behalf of
such Designated Subsidiary. The Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it from
such Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower proposing the Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent (which shall give
prompt notice thereof to such Borrower and to the Sub-Agent, if
applicable), (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 10:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 10:00 A.M. (New York City time) on the second Business Day prior to
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of either Fixed Rate Advances
denominated in any Foreign Currency or Local Rate Advances denominated in
any Foreign Currency and (D) before 10:00 A.M. (New York City time) four
Business Days before the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances denominated in any Foreign Currency, of the minimum amount and
maximum amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing (which
amounts, or the Equivalent thereof in Dollars, as the case may be, may,
subject to
22
the proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor and
such Lender's Applicable Lending Office with respect to such Competitive
Bid Advance; provided that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify such
Borrower of such offer at least 30 minutes before the time and on the date
on which notice of such election is to be given to the Agent, by the other
Lenders. If any Lender shall elect not to make such an offer, such Lender
shall so notify the Agent, before 10:00 A.M. (New York City time) (and the
Agent shall notify the Sub-Agent, if applicable) on the date on which
notice of such election is to be given to the Agent by the other Lenders,
and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as
part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Advance shall, in
turn, (A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 10:00 A.M. (New York City time) on the Business Day prior to the
date of such Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances denominated in any Foreign
Currency and (D) before 10:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent (and the Agent shall give notice to the
Sub-Agent, if applicable) of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to
such Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent notice to that effect; provided, however,
that such Borrower shall not accept any offer in excess of the
requested bid amount for any maturity. Such Borrower shall accept
the offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have offered the
same interest rate, the amount
23
to be borrowed at such interest rate will be allocated among such
Lenders in proportion to the amount that each such Lender offered at
such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that such Competitive Bid Borrowing is canceled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower proposing the Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Agent shall in turn promptly notify (A) each
Lender that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such Competitive Bid Borrowing and whether or
not any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to make
a Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid Borrowing,
upon receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 11:00 A.M. (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars or 11:00 A.M.
(London time), in the case of Competitive Bid Advances to be denominated
in any Foreign Currency, on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending Office
to the Agent (x) in the case of a Competitive Bid Borrowing denominated in
Dollars, at its address referred to in Section 9.02, in same day funds,
such Lender's portion of such Competitive Bid Borrowing in Dollars, and
(y) in the case of a Competitive Bid Borrowing in a Foreign Currency, at
the Payment Office for such Foreign Currency as shall have been notified
by the Agent to the Lenders prior thereto, in same day funds, such
Lender's portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the Agent will
make such funds available to such Borrower's account at the location
specified by such Borrower in its Notice of Competitive Bid Borrowing.
Promptly after each Competitive Bid Borrowing the Agent will notify each
Lender of the amount and tenor of such Competitive Bid Borrowing.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that it accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense
24
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Competitive Bid Advance to be
made by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on such
date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
not less than $10,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
or an integral multiple of $1,000,000 (or the Equivalent thereof in any Foreign
Currency, determined as of the time of the applicable Notice of Competitive Bid
Borrowing) in excess thereof and, following the making of each Competitive Bid
Borrowing, the Borrower that has borrowed such Competitive Bid Borrowing shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) Any Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the Competitive
Bid Note evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. Such Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance comprising such Competitive Bid Borrowing from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default under Section 6.01(a), such Borrower
shall pay interest on the amount of unpaid principal of and interest on each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive
25
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit (or on such shorter notice as the applicable Issuing Bank may agree), by
any Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof by facsimile. Each such notice of issuance of a Letter of
Credit (a "Notice of Issuance") shall be by telephone, confirmed immediately in
writing, or facsimile, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount and currency
(which shall be a Major Currency or Dollars) of such Letter of Credit, (C)
expiration date of such Letter of Credit (which shall not be later than the
Termination Date), (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be accompanied by such
customary application and agreement for letter of credit as such Issuing Bank
may specify to the Borrower requesting such issuance for use in connection with
such requested Letter of Credit (a "Letter of Credit Application"). If (A) the
requested form of such Letter of Credit, in the reasonable judgment of the
Issuing Bank, conforms to standard practices of financial institutions that
regularly issue letters of credit, (B) the issuance of a letter of credit to the
beneficiary of such Letter of Credit would not, in the reasonable judgment of
the Issuing Bank, violate or conflict with (y) any regulatory or legal
restriction applicable to the Issuing Bank, or (z) any internal policy,
procedure or guideline of, the Issuing Bank that is consistent with standard
practices of financial institutions that regularly issue letters of credit and
(C) the Issuing Bank has not received written notice form any Lender, the Agent
or the Borrower, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Section 3.04 shall not be satisfied, then
such Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to the Borrower requesting
such issuance at its office referred to in Section 9.02 or as otherwise agreed
with such Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Application shall conflict
with this Agreement, the provisions of this Agreement shall govern. An Issuing
Bank that issues a Letter of Credit which expires prior to the Termination Date
but provides for automatic extension of the expiry date will not exercise its
right to prevent the automatic extension of the expiry date unless (i) the
applicable conditions set forth in Section 3.04 are not satisfied as to the date
of such Issuing Bank's required notice of non-extension, or (ii) such automatic
extension would extend the expiry date beyond the Termination Date.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit
26
equal to such Lender's Ratable Share of the Available Amount of such Letter of
Credit. Each Borrower hereby agrees to each such participation. In consideration
and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the account of such Issuing
Bank, such Lender's Ratable Share of each drawing made under a Letter of Credit
funded by such Issuing Bank and not reimbursed by the applicable Borrower on the
date made, or of any reimbursement payment required to be refunded to any
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its participation
in each Letter of Credit will be automatically adjusted to reflect such Lender's
Ratable Share of the Available Amount of such Letter of Credit at each time such
Lender's Revolving Credit Commitment is amended pursuant to the operation of
Sections 2.06(b), (c) or (d), an assignment in accordance with Section 9.06 or
otherwise pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of a Revolving Credit Advance,
which, in the case of Letters of Credit denominated in Dollars, shall be a Base
Rate Advance, in the amount of such draft or, in the case of a Letter of Credit
denominated in any Major Currency, shall be an Advance that bears interest at
the Overnight Eurocurrency Rate (as defined below) of such Issuing Bank for a
period of five Business Days and thereafter, shall be a Base Rate Advance in the
Equivalent in Dollars on such fifth Business Day for the amount of such draft.
Each Issuing Bank shall give prompt notice (and such Issuing Bank will use its
commercially reasonable efforts to deliver such notice within one Business Day)
of each drawing under any Letter of Credit issued by it to the Company, the
applicable Borrower (if not the Company) and the Agent. Upon written demand by
such Issuing Bank, with a copy of such demand to the Agent and the Company, each
Lender shall pay to the Agent such Lender's Ratable Share of such outstanding
Revolving Credit Advance, by making available for the account of its Applicable
Lending Office to the Agent for the account of such Issuing Bank, by deposit to
the Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Revolving Credit Advance to be funded by
such Lender, provided that the Lenders shall not be required to fund such
Revolving Credit Advances resulting from drawings under a Letter of Credit
denominated in any Major Currency until such Advance is exchanged for the
Equivalent in Dollars and is a Base Rate Advance. Each Lender acknowledges and
agrees that its obligation to make Revolving Credit Advances pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Promptly after receipt thereof, the Agent
shall transfer such funds to such Issuing Bank. Each Lender agrees to fund its
Ratable Share of an outstanding Revolving Credit Advance on (i) the Business Day
on which demand therefor is made by such Issuing Bank, provided that notice of
such demand is given not later than 11:00 A.M. (New York City time) on such
Business Day, or (ii) the first Business Day next
27
succeeding such demand if notice of such demand is given after such time. If and
to the extent that any Lender shall not have so made the amount of such
Revolving Credit Advance available to the Agent, such Lender agrees to pay to
the Agent forthwith on demand such amount together with interest thereon, for
each day from the date of demand by any such Issuing Bank until the date such
amount is paid to the Agent, at the Federal Funds Rate for its account or the
account of such Issuing Bank, as applicable. If such Lender shall pay to the
Agent such amount for the account of any such Issuing Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Revolving Credit
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Revolving Credit Advance made by
such Issuing Bank shall be reduced by such amount on such Business Day.
"Overnight Eurocurrency Rate" means the rate per annum applicable to an
overnight period beginning on one Business Day and ending on the next Business
Day equal to the sum of the Applicable Margin for Eurocurrency Rate Advances and
the rate per annum quoted by the Applicable Issuing Bank to the Agent as the
rate at which it is offering overnight deposits in the relevant currency in
amounts comparable to such Issuing Bank's Advances resulting from drawings on
Letters of Credit denominated in a Major Currency.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Agent (with a copy to the Company) on the first Business Day of each month a
written report summarizing issuance and expiration dates of Letters of Credit
during the preceding month and drawings during such month under all Letters of
Credit and (B) to the Agent (with a copy to the Company) on the first Business
Day of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit.
(e) Failure to Make Advances. The failure of any Lender to make the
Revolving Credit Advance to be made by it on the date specified in Section
2.04(c) shall not relieve any other Lender of its obligation hereunder to make
its Revolving Credit Advance on such date, but no Lender shall be responsible
for the failure of any other Lender to make the Revolving Credit Advance to be
made by such other Lender on such date.
SECTION 2.05. Fees. (a) Facility Fee. The Company agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the date hereof in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing December 31, 2004, and on the
Termination Date.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent
for the account of each Lender a fee on such Lender's Ratable Share of the sum
of (x) the average daily aggregate Available Amount of all Letters of Credit
issued at the request of such Borrower and outstanding from time to time and (y)
any Advances bearing interest at the Overnight Eurocurrency Rate as provided in
Section 2.04(c) and outstanding from time to time, at a rate per annum equal to
the Applicable Letter of Credit Rate in effect from time to time, during such
calendar quarter, payable in arrears quarterly on the third Business Day after
the last day of each
28
March, June, September and December, commencing with the quarter ended December
31, 2004, and on and after the Termination Date payable upon demand; provided
that the Applicable Letter of Credit Rate shall be 1% above the Applicable
Letter of Credit Rate in effect upon the occurrence and during the continuation
of an Event of Default if the Borrowers are required to pay default interest
pursuant to Section 2.08(b).
(ii) Each Borrower shall pay to each Issuing Bank for its own
account such reasonable fees as have been agreed between the Company and
such Issuing Bank.
(c) Agent's Fees. The Company shall pay to the Agent for its own
account such fees, and at such times, as the Company and the Agent may
separately agree.
SECTION 2.06. Termination or Reduction of the Commitments. (a)
Optional Ratable Termination or Reduction. The Company shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
permanently reduce ratably in part the Unused Commitments of the Lenders,
provided that each partial reduction shall be in an aggregate amount not less
than $10,000,000 or an integral multiple of $1,000,000 in excess thereof. The
aggregate amount of the Commitments, once reduced as provided in this Section
2.06(a), may not be reinstated.
(b) Non-Ratable Termination by Assignment. The Company shall have
the right, upon at least ten Business Days' written notice to the Agent (which
shall then give prompt notice thereof to the relevant Lender), to require any
Lender to assign, pursuant to and in accordance with the provisions of Section
9.06, all of its rights and obligations under this Agreement and under the Notes
to an Eligible Assignee selected by the Company; provided, however, that (i) no
Event of Default shall have occurred and be continuing at the time of such
request and at the time of such assignment; (ii) the assignee shall have paid to
the assigning Lender the aggregate principal amount of, and any interest accrued
and unpaid to the date of such assignment on, the Note or Notes of such Lender;
(iii) the Company shall have paid to the assigning Lender any and all accrued
facility fees and Letter of Credit fees payable to such Lender and all other
accrued and unpaid amounts owing to such Lender under any provision of this
Agreement (including, but not limited to, any increased costs or other
additional amounts owing under Section 2.11 and any indemnification for Taxes
under Section 2.14) as of the effective date of such assignment; (iv) if the
assignee selected by the Company is not an existing Lender, such assignee or the
Company shall have paid the processing and recordation fee required under
Section 9.06(a) for such assignment and (v) if the assigning Lender is an
Issuing Bank, the Company shall pay to the Agent for deposit in the L/C Cash
Deposit Account an amount equal to the Available Amount of all Letters of Credit
issued by such Issuing Bank; provided further that the Company shall have no
right to replace more than three Lenders in any calendar year pursuant to this
Section 2.06(b); and provided further that the assigning Lender's rights under
Sections 2.11, 2.14 and 9.04, and, in the case of an Issuing Bank, Sections
2.04(b) and 6.02, and its obligations under Section 8.05, shall survive such
assignment as to matters occurring prior to the date of assignment.
(c) Non-Ratable Reduction. (i) The Company shall have the right, at
any time other than during any Rating Condition, upon at least ten Business
Days' notice to a Lender (with a copy to the Agent), to terminate in whole such
Lender's Commitments. Such termination
29
shall be effective, (x) with respect to such Lender's Unused Commitment, on the
date set forth in such notice, provided, however, that such date shall be no
earlier than ten Business Days after receipt of such notice and (y) with respect
to each Advance outstanding to such Lender, in the case of Base Rate Advances,
on the date set forth in such notice and, in the case of Eurocurrency Rate, on
the last day of the then current Interest Period relating to such Advance;
provided further, however, that such termination shall not be effective, if,
after giving effect to such termination, the Company would, under this Section
2.06(c), reduce the Lenders' Revolving Credit Commitments in any calendar year
by an amount in excess of the Revolving Credit Commitments of any three Lenders
or $240,000,000, whichever is greater on the date of such termination.
Notwithstanding the preceding proviso, the Company may terminate in whole the
Commitments of any Lender in accordance with the terms and conditions set forth
in Section 2.06(b). Upon termination of a Lender's Commitments under this
Section 2.06(c), the Company will pay or cause to be paid all principal of, and
interest accrued to the date of such payment on, Advances owing to such Lender
and pay any accrued facility fees or Letter of Credit fees payable to such
Lender pursuant to the provisions of Section 2.05, and all other amounts payable
to such Lender hereunder (including, but not limited to, any increased costs or
other amounts owing under Section 2.11 and any indemnification for Taxes under
Section 2.14); and upon such payments and, if such Lender is an Issuing Bank,
shall pay to the Agent for deposit in the L/C Cash Deposit Account an amount
equal to the Available Amount of all Letters of Credit issued by such Issuing
Bank, the obligations of such Lender hereunder shall, by the provisions hereof,
be released and discharged; provided, however, that such Lender's rights under
Sections 2.11, 2.14 and 9.04, and, in the case of an Issuing Bank, Sections
2.04(b) and 6.02, and its obligations under Section 8.05 shall survive such
release and discharge as to matters occurring prior to such date. The aggregate
amount of the Commitments of the Lenders once reduced pursuant to this Section
2.06(c) may not be reinstated.
(ii) For purposes of this Section 2.06(c) only, the term "Rating
Condition" shall mean a period commencing with notice (a "Rating Condition
Notice") by the Agent to the Company and the Lenders to the effect that the
Agent has been informed that the rating of the senior public Debt of the Company
is unsatisfactory under the standard set forth in the next sentence, and ending
with notice by the Agent to the Company and the Lenders to the effect that such
condition no longer exists. The Agent shall give a Rating Condition Notice
promptly upon receipt from the Company or any Lender of notice stating, in
effect, that both of S&P and Xxxxx'x (or any successor by merger or
consolidation to the business of either thereof), respectively, then rate the
senior public Debt of the Company lower than BBB- and Baa3. The Company agrees
to give notice to the Agent forthwith upon any change in a rating by either such
organization of the senior public Debt of the Company; the Agent shall have no
duty whatsoever to verify the accuracy of any such notice from the Company or
any Lender or to monitor independently the ratings of the senior public Debt of
the Company and no Lender shall have any duty to give any such notice. The Agent
shall give notice to the Lenders and the Company as to the termination of a
Rating Condition promptly upon receiving a notice from the Company to the Agent
(which notice the Agent shall promptly notify to the Lenders) stating that the
rating of the senior public Debt of the Company does not meet the standard set
forth in the second sentence of this clause (ii), and requesting that the Agent
notify the Lenders of the termination of the Rating Condition. The Rating
Condition shall terminate upon the giving of such notice by the Agent.
30
(d) Termination by a Lender. In the event that a Change of Control
occurs, each Lender may, by notice to the Company and the Agent given not later
than 50 calendar days after such Change of Control, terminate its Revolving
Credit Commitment and its Unissued Letter of Credit Commitment, if any, which
Commitments shall be terminated effective as of the later of (i) the date that
is 60 calendar days after such Change of Control or (ii) the end of the Interest
Period for any Eurocurrency Rate Advance outstanding at the time of such Change
of Control or for any Eurocurrency Rate Advance made pursuant to the next
sentence of this Section 2.06(d). Upon the occurrence of a Change of Control,
each Borrower's right to make a Borrowing or request the issuance of a Letter of
Credit under this Agreement shall be suspended for a period of 60 calendar days,
except for Base Rate Advances and Eurocurrency Rate Advances having an Interest
Period ending not later than 90 calendar days after such Change of Control. A
notice of termination pursuant to this Section 2.06(d) shall not have the effect
of accelerating any outstanding Advance of such Lender and the Notes of such
Lender.
(e) Funds deposited to the L/C Cash Deposit Account pursuant to
Section 2.06(b)(v) above (in the case of an assigning Lender thereunder that is
an Issuing Bank) or Section 2.06(c)(i) above (in the case of a Lender whose
Commitments are terminated thereunder that is an Issuing Bank) shall be applied
to reimburse any drawings made under any Letter of Credit issued by such
applicable Issuing Bank to the extent permitted by applicable law, and if so
applied then such reimbursement shall be deemed satisfaction of the obligations
of the Lenders and of the applicable Borrower to reimburse such drawing. After
all of the Letters of Credit issued by such Issuing Banks shall have expired or
been fully drawn upon and all other obligations of the Borrowers hereunder to
such Issuing Banks have been paid in full, the balance, if any, in the L/C Cash
Deposit Account shall be promptly returned to the Company.
SECTION 2.07. Repayment of Advances. (a) Revolving Credit Advances.
Each Borrower shall repay to the Agent for the ratable account of the Lenders on
the Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
Date.
(c) Letter of Credit Reimbursements. The obligation of any Borrower
under this Agreement, any Letter of Credit Application and any other agreement
or instrument, in each case, to repay any Revolving Credit Advance that results
from payment of a drawing under a Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Application and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by a Borrower is
without prejudice to, and does not constitute a waiver of, any rights such
Borrower might have or might acquire as a result of the payment by any Lender of
any draft or the reimbursement by the Borrower thereof as set forth in Section
9.16 or otherwise):
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(i) any lack of validity or enforceability of this Agreement, any
Note, any Letter of Credit Application, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of any
Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right
that any Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank, the
Agent, any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not substantially comply
with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of any Borrower in respect of
the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing that might, but for the provisions of this
Section, constitute a legal or equitable discharge of the Borrower's
obligations hereunder.
SECTION 2.08. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing by such Borrower to each Lender from the
date of such Revolving Credit Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be paid
in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance plus (y) the Applicable Margin in effect
from time to time plus (z) the Applicable Utilization Fee, if any, in
effect from time to time, payable in arrears on the last day of such
Interest
32
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), each Borrower shall pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance owing by
such Borrower to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such Revolving Credit
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder by such Borrower that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 1% per annum above the rate per annum required to be paid on
such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate and each LIBO Rate if the applicable Telerate Page is
unavailable. If any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Company and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.08(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.08(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Majority
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London interbank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as part of such Borrowing during its
Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify each Borrower and the
Lenders, whereupon (A) the Borrower will, on the last day of the then existing
Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated
in Dollars, either (x) prepay such Advances or (y) Convert such Advances into
Base Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in
any Major Currency, either (x) prepay such Advances or (y) exchange such
Advances into an Equivalent amount of Dollars and Convert such Advances into
Base Rate Advances, and (B) the obligation of the Lenders to make Eurocurrency
Rate Advances in the same currency as such Eurocurrency Rate Advances shall be
suspended until the Agent shall notify each Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit Borrowing
comprised of Eurocurrency Rate Advances, shall fail to select the duration of
the Interest Period for such
33
Eurocurrency Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders and such Advances will (to the extent such
Eurocurrency Rate Advances remain outstanding on such day) automatically, on the
last day of the then existing Interest Period therefor, (i) if such Eurocurrency
Rate Advances are denominated in Dollars, Convert into Base Rate Advances and
(ii) if such Eurocurrency Rate Advances are denominated in any Major Currency,
be exchanged into an Equivalent amount of Dollars and be Converted into Base
Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will (to the
extent such Eurocurrency Rate Advance remains outstanding on such day)
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Major Currency, be exchanged into an Equivalent amount of
Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make Eurocurrency Rate Advances shall be suspended.
(e) If the applicable Telerate Page is unavailable and fewer than
two Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will (to the extent such Eurocurrency Rate Advance remains outstanding on
such day) automatically, on the last day of the then existing Interest
Period therefor, (A) if such Eurocurrency Rate Advance is denominated in
Dollars, be prepaid by the applicable Borrower or be automatically
Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Major Currency, be prepaid by the applicable
Borrower or be automatically exchanged into an Equivalent amount of
Dollars and Converted into a Base Rate Advance (or if such Advance is then
a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances shall be suspended until the Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional
Prepayments. Each Borrower may, upon notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, given not later than
11:00 A.M. (New York City time) on the second Business Day prior to the date of
such proposed prepayment, in the case of Eurocurrency Rate Advances, and not
later than 11:00 A.M. (New York City time) on the day of such proposed
prepayment, in the case of Base Rate Advances, and, if such notice is given,
such Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances
34
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount not less than $10,000,000 or the
Equivalent thereof in a Major Currency (determined on the date notice of
prepayment is given) or an integral multiple of $1,000,000 or the Equivalent
thereof in a Major Currency (determined on the date notice of prepayment is
given) in excess thereof and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance other than on the last day of the Interest Period
therefor, such Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c). Each notice of prepayment by a Designated
Subsidiary shall be given to the Administrative Agent through the Company.
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A) the
aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such date) of the aggregate principal amount of all Advances
denominated in Foreign Currencies then outstanding plus (C) the aggregate
Available Amount of all Letters of Credit denominated in Dollars then
outstanding plus (D) the Equivalent in Dollars (determined on the third Business
Day prior to such date) of the aggregate Available Amount of all Letters of
Credit denominated in Major Currencies then outstanding exceeds 103% of the
aggregate Commitments of the Lenders on such date, the Company and each other
Borrower, if any, shall thereupon promptly prepay the outstanding principal
amount of any Advances owing by such Borrower in an aggregate amount (or deposit
an amount in the L/C Cash Deposit Account) sufficient to reduce such sum
(calculated on the basis of the Available Amount of Letters of Credit being
reduced by the amount in the L/C Cash Deposit Account) to an amount not to
exceed 100% of the aggregate Commitments of the Lenders on such date, together
with any interest accrued to the date of such prepayment on the principal
amounts prepaid and, in the case of any prepayment of a Eurocurrency Rate
Advance, a LIBO Rate Advance or a Local Rate Advance on a date other than the
last day of an Interest Period or at its maturity, any additional amounts which
such Borrower shall be obligated to reimburse to the Lenders in respect thereof
pursuant to Section 9.04(c). The Agent shall give prompt notice of any
prepayment required under this Section 2.10(b)(i) to the Borrowers and the
Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in Dollars of
the aggregate principal amount of all Eurocurrency Rate Advances denominated in
Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
aggregate principal amount of all Competitive Bid Advances denominated in
Foreign Currencies then outstanding plus (C) the Equivalent in Dollars of the
aggregate Available Amount of all Letters of Credit denominated in Major
Currencies then outstanding (in each case, determined on the third Business Day
prior to such date), shall exceed 110% of $500,000,000, the Company and each
other Borrower shall prepay the outstanding principal amount of any such
Eurocurrency Rate Advances or any such LIBO Rate Advances owing by such
Borrower, on the last day of the Interest Periods relating to such Advances, in
an aggregate amount (or deposit an amount in the L/C Cash Deposit Account)
sufficient to reduce such sum (calculated on the basis of the Available Amount
of Letters of Credit being reduced by the amount in the L/C Cash Deposit
Account) to an amount not to exceed $500,000,000, together with any interest
accrued to the date of such prepayment on the principal amounts prepaid. The
Agent shall give prompt notice of any prepayment required under this Section
2.10(b)(ii) to the Borrowers and the Lenders.
35
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances or agreeing to issue or of issuing or maintaining
or participating in Letters of Credit (excluding for purposes of this Section
2.11 any such increased costs resulting from (i) Taxes or Other Taxes (as to
which Section 2.14 shall govern) and (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender is organized
or has its Applicable Lending Office or any political subdivision thereof), then
the Borrower of such Advances shall from time to time, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such increased cost,
submitted to such Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend or to issue or participate in Letters of Credit
hereunder and other commitments of this type or the issuance of or participation
in the Letters of Credit (or similar contingent obligations) hereunder, then,
upon demand by such Lender (with a copy of such demand to the Agent), the
Company shall pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable pursuant to
this Section 2.11 shall, upon the written request of the Company delivered to
such Lender and the Agent, assign, pursuant to and in accordance with the
provisions of Section 9.06, all of its rights and obligations under this
Agreement and under the Notes to an Eligible Assignee selected by the Company;
provided, however, that (i) no Default shall have occurred and be continuing at
the time of such request and at the time of such assignment; (ii) the assignee
shall have paid to the assigning Lender the aggregate principal amount of, and
any interest accrued and unpaid to the date of such assignment on, the Note or
Notes of such Lender; (iii) the Company shall have paid to the assigning Lender
any and all facility fees and other fees payable to such Lender and all other
accrued and unpaid amounts owing to such Lender under any provision of this
Agreement (including, but not limited to, any increased costs or other
additional amounts owing under this Section 2.11, and any indemnification for
Taxes under Section 2.14) as of the effective date of such assignment and (iv)
if the assignee selected by the Company is not an existing Lender, such
36
assignee or the Company shall have paid the processing and recordation fee
required under Section 9.06(a) for such assignment; provided further that the
assigning Lender's rights under Sections 2.11, 2.14 and 9.04, and its
obligations under Section 8.05, shall survive such assignment as to matters
occurring prior to the date of assignment.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any Major
Currency or LIBO Rate Advances in Dollars or in any Foreign Currency or to fund
or maintain Eurocurrency Rate Advances in Dollars or in any Major Currency or
LIBO Rate Advances in Dollars or in any Foreign Currency hereunder, (a) each
such Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be,
will automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.08(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Foreign Currency, be exchanged into an
Equivalent amount of Dollars and Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.08(a)(i), as the
case may be, and (b) the obligation of the Lenders to make such Eurocurrency
Rate Advances or such LIBO Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under any Notes, except with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in a Foreign Currency, not later than 11:00 A.M. (New York City time) on the day
when due in Dollars to the Agent at the applicable Agent's Account in same day
funds without set-off, counterclaim or deduction of any kind. Each Borrower
shall make each payment hereunder and under any Notes with respect to principal
of, interest on, and other amounts relating to Advances denominated in a Foreign
Currency not later than 12:00 Noon (at the Payment Office for such Foreign
Currency) on the day when due in such Foreign Currency to the Agent in same day
funds by deposit of such funds to the applicable Agent's Account without
set-off, counterclaim or deduction of any kind. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal, interest, facility fees or Letter of Credit fees ratably (other than
amounts payable pursuant to Section 2.03, 2.04(c), 2.05(b)(ii), 2.06(b),
2.06(c), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.06(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under any Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
37
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, all computations of interest based on the Eurocurrency
Rate (including the Overnight Eurocurrency Rate) or the Federal Funds Rate and
of Letter of Credit fees shall be made by the Agent on the basis of a year of
360 days and all computations in respect of Competitive Bid Advances shall be
made by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, facility fees or Letter of Credit fees are payable. Each determination
by the Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, facility fee or
Letter of Credit fee, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurocurrency Rate
Advances or LIBO Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Foreign
Currencies.
SECTION 2.14. Taxes. (a) Any and all payments by any Borrower
(including the Company in its capacity as a guarantor under Article VII hereof)
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes imposed by the United States or any State thereof and taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower (including the Company in
its capacity as a guarantor under Article VII hereof) shall be required
38
by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.14) such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
imposed by any jurisdiction on amounts payable under this Section 2.14) imposed
on or paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto; provided, however, that a Borrower shall not be obligated to pay any
amounts in respect of penalties, interest or expenses pursuant to this paragraph
that are payable solely as a result of (i) the failure on the part of the
pertinent Lender or the Agent to pay over those amounts received from the
Borrowers under this clause (c) or (ii) the gross negligence or willful
misconduct on the part of the pertinent Lender or the Agent. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor. Each Lender agrees to
provide reasonably prompt notice to the Agent, the Company and any Borrower of
any imposition of Taxes or Other Taxes against such Lender; provided that
failure to give such notice shall not affect such Lender's rights to
indemnification hereunder. Each Lender agrees that it will, promptly upon a
request by the Company or a Borrower having made an indemnification payment
hereunder, furnish to the Company or such Borrower, as the case may be, such
evidence as is reasonably available to such Lender as to the payment of the
relevant Taxes or Other Taxes, and that it will, if requested by the Company or
such Borrower, cooperate with the Company or such Borrower, as the case may be,
in its efforts to obtain a refund or similar relief in respect of such payment.
(d) Within 30 days after the date of any payment of Taxes by a
Borrower under subsection (a) above, each Borrower shall furnish to the Agent,
at its address referred to in Section 9.02, the original or a certified copy of
a receipt evidencing payment thereof. In the case of any payment hereunder or
under the Notes by or on behalf of any Borrower through an account or branch
outside the United States or by or on behalf of any Borrower by a payor that is
not a United States person, if such Borrower determines that no Taxes are
payable in respect thereof, such Borrower shall furnish, or shall cause such
payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
39
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender, on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender and on the date it changes its Applicable Lending Office in the case of
any Lender, and from time to time thereafter as requested in writing by any
Borrower (unless a change in law renders such Lender unable lawfully to do so),
shall provide the Agent and each Borrower with two original Internal Revenue
Service forms W-8ECI or W-8BEN, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. In addition, each Lender
further agrees to provide any Borrower with any form or document as any Borrower
may reasonably request which is required by any taxing authority outside the
United States in order to secure an exemption from, or reduction in the rate of,
withholding tax in such jurisdiction, if available to such Lender. If the forms
provided by a Lender at the time such Lender first becomes a party to this
Agreement or changes its Applicable Lending Office indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, in the case of a
Lender that initially becomes a party to this Agreement pursuant to an
assignment in accordance with Section 9.06 or a Lender that undertakes a change
in its Applicable Lending Office, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable on the
date of such assignment or change with respect to the assignee Lender or Lender
after the change in Applicable Lending Office, but only to the extent of United
States withholding tax included in Taxes, if any, applicable on the date of such
assignment or change with respect to the assignor Lender or Lender prior to such
change in Applicable Lending Office . If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form W-8ECI or W-8BEN, that a Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to each Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide each Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 2.14(a) or (c) with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, each Borrower shall take such
steps as such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(g) If any Borrower is required to pay any additional amount to any
Lender or to the Agent or on behalf of any of them to any taxing authority
pursuant to this Section 2.14, such Lender shall, upon the written request of
the Company delivered to such Lender and the Agent, assign, pursuant to and in
accordance with the provisions of Section 9.06, all of its rights
40
and obligations under this Agreement and under the Notes to an Eligible Assignee
selected by the Company; provided, however, that (i) no Default shall have
occurred and be continuing at the time of such request and at the time of such
assignment; (ii) the assignee shall have paid to the assigning Lender the
aggregate principal amount of, and any interest accrued and unpaid to the date
of such assignment on, the Note or Notes of such Lender; (iii) the Company shall
have paid to the assigning Lender any and all facility fees and other fees
payable to such Lender and all other accrued and unpaid amounts owing to such
Lender under any provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section 2.11, and any
indemnification for Taxes under this Section 2.14) as of the effective date of
such assignment; and (iv) if the assignee selected by the Company is not an
existing Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.06(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.11, 2.14 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, if any, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.03, 2.04(c), 2.06(b), 2.06(c),
2.11, 2.14 or 9.04(c)) in excess of its Ratable Share of payments on account of
the Revolving Credit Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Revolving
Credit Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff, if any) with respect to such participation as
fully as if such Lender were the direct creditor of such Borrower in the amount
of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes of such Borrower and its Subsidiaries, including, without
limitation, backstop of commercial paper.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon request of any Lender to such Borrower (with a copy of such notice to the
Agent) that such Lender receive a Revolving Credit Note to evidence (whether for
purposes of pledge, enforcement or otherwise) the Revolving Credit Advances
owing to, or to be made by,
41
such Lender, such Borrower shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.06(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iv) the amount of any sum received
by the Agent from each Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrowers to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003, except as otherwise publicly disclosed prior to the
date hereof.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or to
the knowledge of the Company Threatened before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material
Adverse Effect, other than the matters described on Schedule 3.01(b)
hereto (the "Disclosed Litigation") or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note of the
Company or the consummation of the transactions contemplated hereby, and
there shall have been no adverse change in the status, or financial effect
on the Company or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(c) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders in respect of this Agreement.
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(d) On the Effective Date, the following statements shall be true
and the Agent shall have received a certificate signed by a duly
authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(e) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent:
(i) The Revolving Credit Notes of the Company to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement and the Notes of
the Company, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the
Notes of the Company and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Xxxx X. Xxxxxx, Assistant General
Counsel of the Company, substantially in the form of Exhibit F
hereto and as to such other matters as any Lender through the Agent
may reasonably request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, substantially in the form of Exhibit H hereto.
(vi) Such other approvals, opinions or documents as any
Lender, through the Agent, may reasonably request.
SECTION 3.02. Conditions Precedent to Initial Borrowing. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing hereunder is subject to the following conditions precedent:
(a) The Effective Date shall have occurred.
(b) The Company shall have terminated the commitments and paid in
full all outstanding obligations under the 364-Day Credit Agreement dated
as of November 26, 2003 among the Company, the lenders parties thereto and
Citibank, as administrative agent, as amended, and each Lender that is a
party to said credit agreement hereby waives any requirement of prior
notice to the termination of commitments or prepayment of obligations
under said credit agreement.
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(c) The Company shall have paid all accrued fees and expenses of the
Agent (including the billed fees and expenses of counsel to the Agent).
SECTION 3.03. Initial Loan to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.07 is subject to the Agent's receipt on or
before the date of such initial Advance of each of the following, in form and
substance satisfactory to the Agent and dated such date, and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Borrower to the order of the
Lenders to the extent requested by any Lender pursuant to Section 2.17.
(b) Certified copies of the resolutions of the Board of Directors of
such Borrower (with a certified English translation if the original
thereof is not in English) approving this Agreement and the Notes of such
Borrower, and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement and
such Notes.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrower certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the Notes of such Borrower
and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control approvals)
and licenses required under applicable laws and regulations necessary for
such Borrower to execute and deliver this Agreement and the Notes and to
perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit D hereto.
(f) Evidence of the Process Agent's acceptance of its appointment
pursuant to Section 9.12(a) as the agent of such Borrower, substantially
in the form of Exhibit E hereto.
(g) A favorable opinion of counsel to such Designated Subsidiary,
dated the date of such initial Advance, substantially in the form of
Exhibit G hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.04. Conditions Precedent to Each Revolving Credit
Borrowing and Issuance. The obligation of each Lender to make a Revolving Credit
Advance (other than an Advance made by any Issuing Bank or any Lender pursuant
to Section 2.04(c)) on the occasion of each Revolving Credit Borrowing, and the
obligation of the Issuing Bank to issue a Letter of
44
Credit, shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such Revolving Credit Borrowing or
issuance, as the case may be, (a) the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Issuance and the acceptance by the Borrower requesting such Revolving
Credit Borrowing or issuance of the proceeds of such Revolving Credit Borrowing
or such issuance shall constitute a representation and warranty by such Borrower
that on the date of such Borrowing or issuance such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsections (f), (h)-(l) and (n) thereof)
are correct on and as of the date of such Revolving Credit Borrowing or
issuance, before and after giving effect to such Revolving Credit
Borrowing or issuance and to the application of the proceeds therefrom, as
though made on and as of such date, and additionally, if such Revolving
Credit Borrowing or issuance shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter are correct on and as of
the date of such Revolving Credit Borrowing or issuance, before and after
giving effect to such Revolving Credit Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or issuance or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.05. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender and substantially in the form of Exhibit A-2
hereto for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e)
45
thereof and in subsections (f), (h)-(l) and (n) thereof) are correct on
and as of the date of such Competitive Bid Borrowing, before and after
giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and, if
such Competitive Bid Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter are correct on and as of
the date of such Competitive Bid Borrowing, before and after giving effect
to such Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result of
which the information concerning such Borrower that has been provided to
the Agent and each Lender by such Borrower in connection herewith would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading,
and (iv) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.06. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes of the Company, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and
do not and will not cause or constitute a violation of any provision of
law or regulation or any provision of the Certificate of Incorporation or
By-Laws of the Company or result in the breach of, or constitute a default
or require any consent under, or result in the creation of any lien,
charge or
46
encumbrance upon any of the properties, revenues, or assets of the Company
pursuant to, any indenture or other agreement or instrument to which the
Company is a party or by which the Company or its property may be bound or
affected.
(c) No authorization, consent, approval (including any exchange
control approval), license or other action by, and no notice to or filing
or registration with, any governmental authority, administrative agency or
regulatory body or any other third party is required for the due
execution, delivery and performance by the Company of this Agreement or
the Notes of the Company.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Company. This
Agreement is, and each of the Notes of the Company when delivered
hereunder will be, the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their respective terms,
except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 2003, and the related
Consolidated statements of income and cash flows of the Company and its
Consolidated Subsidiaries for the fiscal year then ended (together with
the notes to the financial statements of the Company and its Consolidated
Subsidiaries and the Consolidated statements of cash flows of the Company
and its Consolidated Subsidiaries), accompanied by an opinion of one or
more nationally recognized firms of independent public accountants, and
the Consolidated balance sheet of the Company and its Consolidated
Subsidiaries as at June 30, 2004, and the related Consolidated statements
of income and cash flows of the Company and its Consolidated Subsidiaries
for the nine months then ended, duly certified by the principal financial
officer of the Company, copies of which have been furnished to each
Lender, are materially complete and correct, and fairly present, subject,
in the case of said balance sheet as at June 30, 2004, and said statements
of income and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Company and its
Consolidated Subsidiaries as at such dates and the Consolidated results of
the operations of the Company and its Consolidated Subsidiaries for the
periods ended on such dates, all in accordance with GAAP consistently
applied, except as otherwise noted therein; the Company and its
Consolidated Subsidiaries do not have on such date any material contingent
liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in such
balance sheet or the notes thereto as at such date. No Material Adverse
Change has occurred since December 31, 2003, except as otherwise publicly
disclosed prior to the date hereof.
(f) There is no action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
pending or to the knowledge of the Company Threatened affecting the
Company or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) is reasonably likely to have a Material Adverse
Effect (other than the Disclosed Litigation), or (ii) purports to affect
the legality, validity
47
or enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there has been no adverse change in
the status, or financial effect on the Company or any of its Subsidiaries,
of the Disclosed Litigation from that described on Schedule 3.01(b)
hereto.
(g) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of the Borrower of such
Advance or of such Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or subject to any restriction
contained in any agreement or instrument between such Borrower and any
Lender or any Affiliate of any Lender relating to Debt and within the
scope of Section 6.01(e) will be margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System).
(h) The Company and each wholly-owned direct Subsidiary of the
Company have, in the aggregate, met their minimum funding requirements
under ERISA with respect to their Plans in all material respects and have
not incurred any material liability to the PBGC, other than for the
payment of premiums, in connection with such Plans.
(i) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan of the Company or any of its ERISA Affiliates
that has resulted in or is reasonably likely to result in a material
liability of the Company or any of its ERISA Affiliates.
(j) The Schedules B (Actuarial Information) to the 2003 annual
reports (Form 5500 Series) with respect to each Plan of the Company or any
of its ERISA Affiliates, copies of which have been filed with the Internal
Revenue Service (and which will be furnished to any Bank through the
Administrative Agent upon the request of such Bank through the
Administrative Agent to the Company), are complete and accurate in all
material respects and fairly present in all material respects the funding
status of such Plans at such date, and since the date of each such
Schedule B there has been no material adverse change in funding status.
(k) Neither the Company nor any of its ERISA Affiliates has incurred
or reasonably expects to incur any Withdrawal Liability to any
Multiemployer Plan in an annual amount exceeding 6% of Net Tangible Assets
of the Company and its Consolidated Subsidiaries.
(l) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA. No such Multiemployer Plan is reasonably expected to be
in reorganization or to be terminated, within the meaning of Title IV of
ERISA, in a reorganization or termination which might reasonably be
expected to result in a liability of the Company in an amount in excess of
$5,000,000.
(m) The Company is not, and immediately after the application by the
Company of the proceeds of each Loan will not be, (a) an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
48
(n) To the best of the Company's knowledge, the operations and
properties of the Company and its Subsidiaries taken as a whole comply in
all material respects with all Environmental Laws, all necessary
Environmental Permits have been applied for or have been obtained and are
in effect for the operations and properties of the Company and its
Subsidiaries and the Company and its Subsidiaries are in compliance in all
material respects with all such Environmental Permits. To the best of the
Company's knowledge no circumstances exist that would be reasonably likely
to form the basis of an Environmental Action against the Company or any of
its Subsidiaries or any of their properties that could have a Material
Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) Compliance with Laws, Etc. Comply, and cause each Designated
Subsidiary to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws as provided in Section 5.01(j), if failure to
comply with such requirements would have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
Designated Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or on its income or profits
or upon any of its property; provided, however, that neither the Company
nor any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained.
(c) Maintenance of Insurance. Maintain, and cause each Designated
Subsidiary to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each Designated Subsidiary to preserve and maintain, its
corporate existence and all its material rights (charter and statutory)
privileges and franchises; provided, however, that the Company and each
Designated Subsidiary may consummate any merger, consolidation or sale of
assets permitted under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice but not more than once a year unless an Event of
Default has occurred and is continuing, permit the Agent or any of the
Lenders or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of, the Company and any Designated Subsidiary, and to
discuss the affairs, finances and accounts of the Company and any
Designated
49
Subsidiary with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each Designated Subsidiary to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Company and each Designated Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each Designated Subsidiary to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted; provided, however,
that neither the Company nor any of its Designated Subsidiaries shall be
required to maintain or preserve any property if the failure to maintain
or preserve such property shall not have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Agent (with a copy for
each Lender) and the Agent shall promptly forward the same to the Lenders:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of
the Company, a Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and a
Consolidated statement of income and cash flows of the Company and
its Consolidated Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding
figures as of the corresponding date and for the corresponding
period of the preceding fiscal year, all in reasonable detail and
certified by the principal financial officer, principal accounting
officer, the Vice-President and Treasurer or an Assistant Treasurer
of the Company, subject, however, to year-end auditing adjustments,
which certificate shall include a statement that such officer has no
knowledge, except as specifically stated, of any condition, event or
act which constitutes a Default;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, a Consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such fiscal year and the related Consolidated statements
of income and cash flows of the Company and its Consolidated
Subsidiaries for such fiscal year setting forth in each case in
comparative form the corresponding figures as of the close of and
for the preceding fiscal year, all in reasonable detail and
accompanied by an opinion of independent public accountants of
nationally recognized standing, as to said financial statements and
a certificate of the principal financial officer, principal
accounting officer, the Vice-President and Treasurer or an Assistant
Treasurer of the Company stating that such officer has no knowledge,
except as specifically stated, of any condition, event or act which
constitutes a Default;
50
(iii) copies of the Forms 8-K and 10-K reports (or similar
reports) which the Company is required to file with the Securities
and Exchange Commission of the United States of America, promptly
after the filing thereof;
(iv) copies of each annual report, quarterly report, special
report or proxy statement mailed to substantially all of the
stockholders of the Company, promptly after the mailing thereof to
the stockholders;
(v) immediate notice of the occurrence of any Default of which
the principal financial officer, principal accounting officer, the
Vice-President and Treasurer or an Assistant Treasurer of the
Company shall have knowledge;
(vi) as soon as available and in any event within 15 days
after the Company or any of its ERISA Affiliates knows or has reason
to know that any ERISA Event has occurred, a statement of a senior
officer of the Company with responsibility for compliance with the
requirements of ERISA describing such ERISA Event and the action, if
any, which the Company or such ERISA Affiliate proposes to take with
respect thereto;
(vii) at the request of any Lender, promptly after the filing
thereof with the Internal Revenue Service, copies of Schedule B
(Actuarial Information) to each annual report (Form 5500 series)
filed by the Company or any of its ERISA Affiliates with respect to
each Plan;
(viii) promptly after receipt thereof by the Company or any of
its ERISA Affiliates, copies of each notice from the PBGC stating
its intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(ix) promptly after such request, such other documents and
information relating to any Plan as any Lender may reasonably
request from time to time;
(x) promptly and in any event within five Business Days after
receipt thereof by the Company or any of its ERISA Affiliates from
the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) (x) the imposition of Withdrawal Liability in an
amount in excess of $5,000,000 with respect to any one Multiemployer
Plan or in an aggregate amount in excess of $25,000,000 with respect
to all such Multiemployer Plans within any one calendar year or (y)
the reorganization or termination, within the meaning of Title IV of
ERISA, of any Multiemployer Plan that has resulted or might
reasonably be expected to result in Withdrawal Liability in an
amount in excess of $5,000,000 or of all such Multiemployer Plans
that has resulted or might reasonably be expected to result in
Withdrawal Liability in an aggregate amount in excess of $25,000,000
within any one calendar year and (B) the amount of liability
incurred, or that may be incurred, by the Company or any of its
ERISA Affiliates in connection with any event described in such
subclause (x) or (y);
(xi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the
51
Borrower or any Designated Subsidiary of the type described in
Section 4.01(f); and
(xii) from time to time such further information respecting
the financial condition and operations of the Company and its
Subsidiaries as any Lender may from time to time reasonably request.
(i) Authorizations. Obtain, and cause each Designated Subsidiary to
obtain, at any time and from time to time all authorizations, licenses,
consents or approvals (including exchange control approvals) as shall now
or hereafter be necessary or desirable under applicable law or regulations
in connection with its making and performance of this Agreement and, upon
the request of any Lender, promptly furnish to such Lender copies thereof.
(j) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying
its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each
of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or
other action to the extent that its obligation to do so is being contested
in good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(k) Change of Control. If a Change of Control shall occur, within
ten calendar days after the occurrence thereof, provide the Agent with
notice thereof, describing therein in reasonable detail the facts and
circumstances giving rise to such Change in Control.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Liens, Etc. Issue, assume or guarantee, or permit any of its
Subsidiaries owning Restricted Property to issue, assume or guarantee, any
Debt secured by Liens on or with respect to any Restricted Property
without effectively providing that its obligations to the Lenders under
this Agreement and any of the Notes shall be secured equally and ratably
with such Debt so long as such Debt shall be so secured, except that the
foregoing shall not apply to:
(i) Liens affecting property of the Company or any of its
Subsidiaries existing on the Effective Date in effect as of the date
hereof or of any corporation existing at the time it becomes a
Subsidiary of the Company or at the time it is merged into or
consolidated with the Company or a Subsidiary of the Company;
52
(ii) Liens on property of the Company or its Subsidiaries
existing at the time of acquisition thereof or incurred to secure
the payment of all or part of the purchase price thereof or to
secure Debt incurred prior to, at the time of or within 24 months
after acquisition thereof for the purpose of financing all or part
of the purchase price thereof;
(iii) Liens on property of the Company or its Subsidiaries (in
the case of property that is, in the opinion of the Board of
Directors of the Company, substantially unimproved for the use
intended by the Company) to secure all or part of the cost of
improvement thereof, or to secure Debt incurred to provide funds for
any such purpose;
(iv) Liens which secure only Debt owing by a Subsidiary of the
Company to the Company or to another Subsidiary of the Company;
(v) Liens in favor of the United States of America, any State,
any foreign country, or any department, agency, instrumentality, or
political subdivisions of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or
statute or to secure any Debt incurred for the purpose of financing
all or any part of the purchase price or cost of constructing or
improving the property subject thereto, including, without
limitation, Liens to secure Debt of the pollution control or
industrial revenue bond type; or
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses (i) to (v) inclusive of
any Debt secured thereby, provided that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement Lien shall be limited to
all or part of the property which secured the Lien extended, renewed
or replaced (plus improvements on such property);
provided, however, that, the Company and any one or more Subsidiaries
owning Restricted Property may issue, assume or guarantee Debt secured by
Liens which would otherwise be subject to the foregoing restrictions in an
aggregate principal amount which, together with the aggregate outstanding
principal amount of all other Debt of the Company and its Subsidiaries
owning Restricted Property that would otherwise be subject to the
foregoing restrictions (not including Debt permitted to be secured under
clause (i) through (vi) above) and the aggregate value of the Sale and
Leaseback Transactions in existence at such time, does not at any one time
exceed 10% of the Net Tangible Assets of the Company and its Consolidated
Subsidiaries; and provided further that the following type of transaction,
among others, shall not be deemed to create Debt secured by Liens: Liens
required by any contract or statute in order to permit the Company or any
of its Subsidiaries to perform any contract or subcontract made by it with
or at the request of the United States of America, any foreign country or
any department, agency or instrumentality of any of the foregoing
jurisdictions.
53
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person; provided, however, that
the Company may merge or consolidate with any other Person so long as the
Company is the surviving corporation and so long as no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay: (i) any principal of any Advance
when the same becomes due and payable; (ii) any facility fees or any
interest on any Advance payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or (iii) any
other fees or other amounts payable under this Agreement or any Notes
within 30 days after the same becomes due and payable other than those
fees and amounts the liabilities for which are being contested in good
faith by such Borrower and which have been placed in Escrow by such
Borrower; or
(b) Any representation or warranty made (or deemed made) by any
Borrower (or any of its officers) in connection with this Agreement or by
any Designated Subsidiary in the Designation Letter pursuant to which such
Designated Subsidiary became a Borrower hereunder shall prove to have been
incorrect in any material respect when made (or deemed made); or
(c) The Company shall repudiate its obligations under, or shall
default in the due performance or observance of, any term, covenant or
agreement contained in Article VII of this Agreement; or
(d) (i) The Company shall fail to perform or observe Section
5.01(h)(v), (ii) the Company shall fail to perform or observe any other
term, covenant or agreement contained in Section 5.02(a) and such failure
shall remain unremedied for a period of 30 days after any Lender shall
have given notice thereof to the Company (through the Agent), or (iii) the
Company or any other Borrower shall fail to perform or to observe any
other term, covenant or agreement contained in this Agreement on its part
to be performed or observed and such failure shall remain unremedied for a
period of 30 days after any Lender shall have given notice thereof to the
relevant Borrower or, in the case of the Company, any of the principal
financial officer, the principal accounting officer, the Vice-President
and Treasurer or an Assistant Treasurer of the Company, and in the case of
any other Borrower, a responsible officer of such Borrower, first has
knowledge of such failure; or
54
(e) (i) The Company or any of its Consolidated or Designated
Subsidiaries shall fail to pay any principal of or premium or interest on
any Debt (other than Debt owed to the Company or its Subsidiaries or
Affiliates) that is outstanding in a principal amount of at least
$150,000,000 in the aggregate (but excluding Debt outstanding hereunder
and Debt owed by such party to any bank, financial institution or other
institutional lender to the extent the Borrower or any Subsidiary has
deposits with such bank, financial institution or other institutional
lender sufficient to repay such Debt) of the Company or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt, or (ii) any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt, or (iii) any
such Debt shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; provided, however, that,
for purposes of this Section 6.0l(e), in the case of (x) Debt of any
Person (other than the Company or one of its Consolidated Subsidiaries)
which the Company has guaranteed and (y) Debt of Persons (other than the
Company or one of its Consolidated Subsidiaries) the payment of which is
secured by a Lien on property of the Company or such Subsidiary, such Debt
shall be deemed to have not been paid when due or to have been declared to
be due and payable only when the Company or such Subsidiary, as the case
may be, shall have failed to pay when due any amount which it shall be
obligated to pay with respect to such Debt; provided further, however,
that any event or occurrence described in this subsection (e) shall not be
an Event of Default if (A) such event or occurrence relates to the Debt of
any Subsidiary of the Company located in China, India, the Commonwealth of
Independent States or Turkey (collectively, the "Exempt Countries"), (B)
such Debt is not guaranteed or supported in any legally enforceable manner
by any Borrower or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such event or occurrence is due to the
direct or indirect action of any government entity or agency in any Exempt
Country and (D) as of the last day of the calendar quarter immediately
preceding such event or occurrence, the book value of the assets of such
Subsidiary does not exceed $150,000,000 and the aggregate book value of
the assets of all Subsidiaries of the Company located in Exempt Countries
the Debt of which would cause an Event of Default to occur but for the
effect of this proviso does not exceed $500,000,000; or
(f) The Company or any of its Designated or Consolidated
Subsidiaries shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Company or any such
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver,
55
trustee, custodian or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Company or any such Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); provided, however, that any event or occurrence
described in this subsection (f) shall not be an Event of Default if (A)
such event or occurrence relates to any Subsidiary of the Company located
in an Exempt Country, (B) the Debt of such Subsidiary is not guaranteed or
supported in any legally enforceable manner by any Borrower or by any
Subsidiary or Affiliate of the Company located outside the Exempt
Countries, (C) such event or occurrence is due to the direct or indirect
action of any government entity or agency in any Exempt Country and (D) as
of the last day of the calendar quarter immediately preceding such event
or occurrence, the book value of the assets of such Subsidiary does not
exceed $150,000,000 and the aggregate book value of the assets of all
Subsidiaries of the Company located in Exempt Countries with respect to
which the happening of the events or occurrences described in this
subsection (f) would cause an Event of Default to occur but for the effect
of this proviso does not exceed $500,000,000; or
(g) Any judgment or order for the payment of money in excess of
$150,000,000 shall be rendered against the Company or any of its
Subsidiaries and enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an Event
of Default under this Section 6.01(g) if (A) such judgment or order is
rendered against any Subsidiary of the Company located in an Exempt
Country, (B) the Debt of such Subsidiary is not guaranteed or supported in
any legally enforceable manner by any Borrower or by any Subsidiary or
Affiliate of the Company located outside the Exempt Countries, (C) such
judgment or order is due to the direct or indirect action of any
government entity or agency in any Exempt Country and (D) as of the last
day of the calendar quarter immediately preceding the tenth consecutive
day of the stay period referred to above, the book value of the assets of
such Subsidiary does not exceed $150,000,000 and the aggregate book value
of the assets of all Subsidiaries of the Company located in Exempt
Countries the judgments and orders against which would cause an Event of
Default to occur but for the effect of this proviso does not exceed
$500,000,000; or
(h) Any non-monetary judgment or order shall be rendered against the
Company or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect, and enforcement proceedings shall have been
commenced by any Person upon such judgment or order and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
56
(i) Any license, consent, authorization or approval (including
exchange control approvals) now or hereafter necessary to enable the
Company or any Designated Subsidiary to comply with its obligations herein
or under any Notes of such Borrower shall be modified, revoked, withdrawn,
withheld or suspended; or
(j) (i) Any ERISA Event shall have occurred with respect to a Plan
of any Borrower or any of its ERISA Affiliates and the sum (determined as
of the date of occurrence of such ERISA Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans of the
Borrowers and their ERISA Affiliates with respect to which an ERISA Event
shall have occurred and then exist (or the liability of the Borrowers and
their ERISA Affiliates related to such ERISA Event) exceeds $150,000,000;
or (ii) any Borrower or any of its ERISA Affiliates shall be in default,
as defined in Section 4219(c)(5) of ERISA, with respect to any payment of
Withdrawal Liability and the sum of the outstanding balance of such
Withdrawal Liability and the outstanding balance of any other Withdrawal
Liability that any Borrower or any of its ERISA Affiliates has incurred
exceeds 6% of Net Tangible Assets of the Company and its Consolidated
Subsidiaries; or (iii) any Borrower or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan of such Borrower
or any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Borrowers and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $150,000,000; or
then, and (i) in any such event (except as provided in clause (ii) below), the
Agent (A) shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Company, declare the obligation of each Lender to make
Advances (other than Advances by an Issuing Bank or a Lender pursuant to Section
2.04(c)) and of the Issuing Banks to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (B) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Company, declare
the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrowers and (ii) in the case of the
occurrence of any Event of Default described in clause (i) or (ii) of Section
6.01(a), the Agent shall, at the request, or may with the consent, of the
Lenders which have made or assumed under this Agreement at least 66-2/3% of the
aggregate principal amount (based in respect of Competitive Bid Advances
denominated in Foreign Currencies on the Equivalent in Dollars on the date of
such request) of Competitive Bid Advances then outstanding and to whom such
Advances are owed, by notice to the Company, declare the full unpaid principal
of and accrued interest on all Competitive Bid Advances hereunder and all other
obligations of the Borrowers hereunder to be immediately due and payable,
whereupon such Advances and such obligations shall be immediately due and
payable, without presentment, demand, protest or other further notice of any
kind, all of which are hereby expressly waived by the Borrowers; provided,
however, that in
57
the event of an actual or deemed entry of an order for relief with respect to
any Borrower under the United States Bankruptcy Code of 1978, as amended, (x)
the obligation of each Lender to make Advances (other than Advances by an
Issuing Bank or a Lender pursuant to Section 2.04(c)) and of the Issuing Banks
to issue Letters of Credit shall automatically be terminated and (y) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Company to, and forthwith upon such
demand the Company will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's office designated in such demand, for deposit in the
L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding or (b) make such other reasonable
arrangements in respect of the outstanding Letters of Credit as shall be
acceptable to the Required Lenders; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Borrower under
the United States Bankruptcy Code of 1978, as amended, the Borrowers shall
immediately pay to the Agent on behalf of the Lenders for deposit in the L/C
Cash Deposit Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrowers.
If at any time the Agent reasonably determines that any funds held in the L/C
Cash Deposit Account are subject to any right or interest of any Person other
than the Agent and the Lenders or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit, the Borrowers
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Deposit Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Deposit Account that are free and clear
of any such right and interest. Upon the drawing of any Letter of Credit, to the
extent funds are on deposit in the L/C Cash Deposit Account, such funds shall be
applied to reimburse the Issuing Banks to the extent permitted by applicable
law, and if so applied, then such reimbursement shall be deemed a repayment of
the corresponding Advance in respect of such Letter of Credit. After all such
Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrowers hereunder and under the Notes shall have been paid
in full, the balance, if any, in such L/C Cash Deposit Account shall be promptly
returned to the Company.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable consideration,
receipt whereof is hereby acknowledged, and to induce each Lender to make
Advances to the Designated Subsidiaries and to induce the Agent to act
hereunder, the Company hereby unconditionally and irrevocably guarantees to each
Lender and the Agent that:
58
(a) the principal of and interest on each Advance to each Designated
Subsidiary shall be promptly paid in full when due (whether at stated
maturity, by acceleration or otherwise) in accordance with the terms
hereof, and, in case of any extension of time of payment, in whole or in
part, of such Advance, that all such sums shall be promptly paid when due
(whether at stated maturity, by acceleration or otherwise) in accordance
with the terms of such extension; and
(b) all other amounts payable hereunder by any Designated Subsidiary
to any Lender or the Agent or the Sub-Agent, as the case may be, shall be
promptly paid in full when due in accordance with the terms hereof (the
obligations of the Designated Subsidiaries under these subsections (a) and
(b) of this Section 7.01 being the "Obligations").
In addition, the Company hereby unconditionally and irrevocably agrees that upon
default in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal of, or interest on, any Advance to any Designated
Subsidiary or such other amounts payable by any Designated Subsidiary to any
Lender or the Agent, the Company will forthwith pay the same, without further
notice or demand.
SECTION 7.02. Guarantee Absolute. The Company guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Agent with respect thereto. The liability of the Company under this
guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this
Agreement;
(c) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Company, any Borrower
or a guarantor.
This guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any of the Lenders or the Agent upon the insolvency,
bankruptcy or reorganization of the Company or any Borrower or otherwise, all as
though such payment had not been made.
SECTION 7.03. Waivers. The Company hereby expressly waives
diligence, presentment, demand for payment, protest, any requirement that any
right or power be exhausted or any action be taken against any Designated
Subsidiary or against any other guarantor of all or any portion of the Advances,
and all other notices and demands whatsoever.
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SECTION 7.04. Remedies. Each of the Lenders and the Agent may pursue
its respective rights and remedies under this Article VII and shall be entitled
to payment hereunder notwithstanding any other guarantee of all or any part of
the Advances to the Designated Subsidiaries, and notwithstanding any action
taken by any such Lender or the Agent to enforce any of its rights or remedies
under such other guarantee, or any payment received thereunder. The Company
hereby irrevocably waives any claim or other right that it may now or hereafter
acquire against any Designated Subsidiary that arises from the existence,
payment, performance or enforcement of the Company's obligations under this
Article VII, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or the Lenders against any
Designated Subsidiary, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Designated Subsidiary, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right. If any amount
shall be paid to the Company in violation of the preceding sentence at any time
when all the Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Lenders and the Agent and shall forthwith
be paid to the Agent for its own account and the accounts of the respective
Lenders to be credited and applied to the Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Obligations or other amounts payable under this Agreement
thereafter arising. The Company acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and that the waiver set forth in this section is knowingly made in contemplation
of such benefits.
SECTION 7.05. No Stay. The Company agrees that, as between (a) the
Company and (b) the Lenders and the Agent, the Obligations of any Designated
Subsidiary guaranteed by the Company hereunder may be declared to be forthwith
due and payable as provided in Article VI hereof for purposes of this Article
VII by declaration to the Company as guarantor notwithstanding any stay,
injunction or other prohibition preventing such declaration as against such
Designated Subsidiary and that, in the event of such declaration to the Company
as guarantor, such Obligations (whether or not due and payable by such
Designated Subsidiary), shall forthwith become due and payable by the Company
for purposes of this Article VII.
SECTION 7.06. Survival. This guarantee is a continuing guarantee and
shall (a) remain in full force and effect until payment in full (after the
Termination Date) of the Obligations and all other amounts payable under this
guaranty, (b) be binding upon the Company, its successors and assigns, (c) inure
to the benefit of and be enforceable by each Lender (including each assignee
Lender pursuant to Section 9.06) and the Agent and their respective successors,
transferees and assigns and (d) shall be reinstated if at any time any payment
to a Lender or the Agent hereunder is required to be restored by such Lender or
the Agent. Without limiting the generality of the foregoing clause (c), each
Lender may assign or otherwise transfer its interest in any Advance to any other
person or entity, and such other person or entity shall thereupon become vested
with all the rights in respect thereof granted to such Lender herein or
otherwise.
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ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender and an Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.06; (b) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Borrower
or to inspect the property (including the books and records) of any Borrower;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. CUSA and Affiliates. With respect to its Commitments,
the Advances made by it and the Note issued to it, CUSA shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include CUSA in its individual capacity.
CUSA and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, accept investment banking engagements from and generally
engage in any kind of business with, the Company, any of its Subsidiaries and
any Person who
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may do business with or own securities of the Company or any such Subsidiary,
all as if CUSA were not the Agent and without any duty to account therefor to
the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by a Borrower), from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent, in its capacity as such, in any way relating
to or arising out of this Agreement or any action taken or omitted by the Agent,
in its capacity as such, under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its Ratable Share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by a Borrower.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Company) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank, in its capacity as such, in any way relating to
or arising out of this Agreement or any action taken or omitted by such Issuing
Bank, in its capacity as such, hereunder or in connection herewith; provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse any such Issuing Bank promptly upon demand for its Ratable Share of
any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Company under Section 9.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Company.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Ratable Share of any amount required to be
paid by the Lenders to the Agent as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank
for its Ratable Share of such amount, but no Lender
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shall be responsible for the failure of any other Lender to reimburse the Agent
or any Issuing Bank for such other Lender's Ratable Share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 8.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the Notes. Each of the Agent and each
Issuing Bank agrees to return to the Lenders their respective Ratable Shares of
any amounts paid under this Section 8.05 that are subsequently reimbursed by the
Company or any Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.04 applies
whether any such investigation, litigation or proceeding is brought by the
Agent, any Lender or a third party.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and may be removed
at any time with or without cause by the Majority Lenders. The Company may at
any time, by notice to the Agent, propose a successor Agent (which shall meet
the criteria described below) specified in such notice and request that the
Lenders be notified thereof by the Agent with a view to their removal of the
Agent and their appointment of such successor Agent; the Agent agrees to forward
any such notice to the Lenders promptly upon its receipt by the Agent. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out duties of the Agent. When acting on behalf of the
Agent, the Sub-Agent shall be subject to each of the obligations in this
Agreement to be performed by the Sub-Agent, and each of the Borrowers and the
Lenders agrees that when acting on behalf of the Agent, the Sub-Agent shall be
entitled to exercise each of the rights and shall be entitled to each of the
benefits of the Agent under this Agreement as relate to the performance of its
obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges that
none of the syndication agent or any documentation agent nor any other Lender
designated as any "Agent" on the signature pages hereof (other than the Agent)
has any liability hereunder other than in its capacity as a Lender.
ARTICLE IX
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MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations, (b) reduce the principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (c)
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (d)
release the Company from any of its obligations under Article VII, (e) require
the duration of an Interest Period to be nine months if such period is not
available to all Lenders or (f) amend this Section 9.01; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note and no amendment,
waiver or consent shall, unless in writing and signed by the Issuing Banks in
addition to the Lenders required above to take such action, adversely affect the
rights or obligations of the Issuing Banks in their capacities as such under
this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed (return receipt requested), telecopied,
telegraphed, telexed or delivered, if to the Company or to any Designated
Subsidiary, at the Company's address at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000-0000, Attention: Assistant Treasurer; if to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan
Syndications Department, with a copy to 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxx; or, as to any Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Company and the Agent;
provided that materials as may be agreed between the Borrowers and the Agent may
be delivered to the Agent in accordance with clause (b) below. All such notices
and communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as CUSA or any of its Affiliates is the Agent, such
materials required to be delivered pursuant to Section 5.01(h)(i), (ii),
(iii) and (iv) as may be agreed between the Borrowers and the Agent may be
delivered to the Agent in an electronic
64
medium in a format acceptable to the Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrowers agree that the Agent may make
such materials (the "Communications") available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system
(the "Platform"). The Borrowers acknowledge that (i) the distribution of
material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind, express, implied
or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third party rights or freedom from viruses or other code defects, is made
by the Agent or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this
Agreement; provided that if requested by any Lender the Agent shall
deliver a copy of the Communications to such Lender by email or
telecopier. Each Lender agrees (i) to notify the Agent in writing of such
Lender's e-mail address(es) to which a Notice may be sent by electronic
transmission (including by electronic communication) on or before the date
such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such
e-mail address(es).
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with the
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (i)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (ii) the reasonable fees and expenses of counsel for the
Agent with respect thereto. The Company further agrees to pay on demand all
costs and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
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(b) Each Borrower agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent any such claim, damage, loss,
liability or expense has resulted from such Indemnified Party's gross negligence
or willful misconduct.
The Company also agrees not to assert any claim against any Indemnified Party on
any theory of liability for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.03(d), 2.06(b), 2.10(a) or (b) or 2.12, acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes and the
termination in whole of any Commitment hereunder.
SECTION 9.05. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, the Agent and each Lender and their respective successors and assigns,
except that no Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
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SECTION 9.06. Assignments and Participations. (a) Each Lender may at
any time, with notice to the Company prior to making any proposal to any
potential assignee and with the consent of the Company, which consent shall not
be unreasonably withheld (and shall at any time, if requested to do so by the
Company pursuant to Section 2.06(b), 2.11 or 2.14) assign to one or more Persons
all or a portion of its rights and obligations under a Facility or all
Facilities under this Agreement (including, without limitation, all or a portion
of its Revolving Credit Commitment, Unissued Letter of Credit Commitment, the
Revolving Credit Advances owing to it, its participations in Letters of Credit
and the Revolving Credit Note or Notes held by it); provided, however, that (i)
the Company's consent shall not be required (A) in the case of an assignment of
Revolving Credit Commitment, Revolving Credit Advances and participations in
Letters of Credit to an Affiliate of such Lender, provided that notice thereof
shall have been given to the Company and the Agent or (B) in the case of an
assignment of the type described in subsection (g) below; (ii) each such
assignment shall be of a constant, and not a varying, percentage of the rights
and obligations under this Agreement specified in the applicable Assignment and
Acceptance; (iii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of (x) the
Revolving Credit Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (y) Unissued Letter of
Credit Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 or an
integral multiple thereof; (iv) each such assignment shall be to an Eligible
Assignee, (v) each such assignment made as a result of a demand by the Company
pursuant to this Section 9.06(a) shall be arranged by the Company after
consultation with, and subject to the approval of, the Agent, and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (vi) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 9.06(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and all of the obligations of the Borrower to such
Lender shall have been satisfied; and (vii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500 and, if the assigning Lender is not retaining a
Commitment hereunder, any Revolving Credit Note subject to such assignment. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its
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obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto, provided, however, that such assigning Lender's rights under Sections
2.11, 2.14 and 9.04, and its obligations under Section 8.05, shall survive such
assignment as to matters occurring prior to the effective date of such
assignment).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other instrument or document furnished pursuant hereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by such
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company and to each other Borrower.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company,
each other Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register
68
shall be available for inspection by the Company, any other Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Company or any of its Affiliates) in or to all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Company and the other Borrowers hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Company, any other
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by any
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation and (vi) within 30 days of the
effective date of such participation, such Lender shall provide notice of such
participation to the Company.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.06, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company or any Borrower furnished
to such Lender by or on behalf of such Borrower; provided that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any confidential information
relating to such Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign or create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.07. Designated Subsidiaries. (a) Designation. The Company
may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
69
(b) Termination. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement and the Notes
of any Designated Subsidiary then, so long as at the time no Notice of Revolving
Credit Borrowing or Notice of Competitive Bid Borrowing in respect of such
Designated Subsidiary is outstanding, such Subsidiary's status as a "Designated
Subsidiary" shall terminate upon notice to such effect from the Agent to the
Lenders (which notice the Agent shall give promptly upon its receipt of a
request therefor from the Company). Thereafter, the Lenders shall be under no
further obligation to make any Advance hereunder to such Designated Subsidiary.
SECTION 9.08. Confidentiality. Each of the Lenders and the Agent
hereby agrees that it will use reasonable efforts (e.g., procedures
substantially comparable to those applied by such Lender or the Agent in respect
of non-public information as to the business of such Lender or the Agent) to
keep confidential any financial reports and other information from time to time
supplied to it by the Company hereunder to the extent that such information is
not and does not become publicly available and which the Company indicates at
the time is to be treated confidentially, provided, however, that nothing herein
shall affect the disclosure of any such information (i) by the Agent to any
Lender, (ii) to the extent required by law (including statute, rule, regulation
or judicial process), (iii) to counsel for any Lender or the Agent or to their
respective independent public accountants, (iv) to bank examiners and auditors
and appropriate government examining authorities, (v) to the Agent or any other
Lender, (vi) in connection with any litigation to which any Lender or the Agent
is a party, (vii) to actual or prospective assignees and participants as
contemplated by Section 9.06(f), (viii) to any Affiliate of the Agent or any
Lender or to such Affiliate's officers, directors, employees, agents and
advisors, provided that, prior to any such disclosure, such Affiliate or such
Affiliate's officers, directors, employees, agents or advisors, as the case may
be, shall agree to preserve the confidentiality of any confidential information
relating to the Company received by it or (ix) any actual or prospective
counterparty (or its advisors) to any securitization, swap or derivative
transaction relating to the Borrowers, any Subsidiary of the Company, and the
Obligations; a determination by a Lender or the Agent as to the application of
the circumstances described in the foregoing clauses (i)-(viii) being conclusive
if made in good faith; and each of the Lenders and the Agent agrees that it will
follow procedures which are intended to put any transferee of such confidential
information on notice that such information is confidential.
SECTION 9.09. Mitigation of Yield Protection. Each Lender hereby
agrees that, commencing as promptly as practicable after it becomes aware of the
occurrence of any event giving rise to the operation of Section 2.11(a), 2.12 or
2.14 with respect to such Lender, such Lender will give notice thereof through
the Agent to the respective Borrower. A Borrower may at any time, by notice
through the Agent to any Lender, request that such Lender change its Applicable
Lending Office as to any Advance or Type of Advance or that it specify a new
Applicable Lending Office with respect to its Commitment and any Advance held by
it or that it rebook any such Advance with a view to avoiding or mitigating the
consequences of an occurrence such as described in the preceding sentence, and
such Lender will use reasonable efforts to comply with such request unless, in
the opinion of such Lender, such change or specification or rebooking is
inadvisable or might have an adverse effect, economic or otherwise, upon it,
including its reputation. In addition, each Lender agrees that, except for
changes or specifications or rebookings required by law or effected pursuant to
the preceding sentence, if the result of any change or change of specification
of Applicable Lending Office or rebooking
70
would, but for this sentence, be to impose additional costs or requirements upon
the respective Borrower pursuant to Section 2.11(a), Section 2.12 or Section
2.14 (which would not be imposed absent such change or change of specification
or rebooking) by reason of legal or regulatory requirements in effect at the
time thereof and of which such Lender is aware at such time, then such costs or
requirements shall not be imposed upon such Borrower but shall be borne by such
Lender. All expenses incurred by any Bank in changing an Applicable Lending
Office or specifying another Applicable Lending Office of such Lender or
rebooking any Advance in response to a request from a Borrower shall be paid by
such Borrower. Nothing in this Section 9.09 (including, without limitation, any
failure by a Lender to give any notice contemplated in the first sentence
hereof) shall limit, reduce or postpone any obligations of the respective
Borrower under Section 2.11(a), Section 2.12 or Section 2.14, including any
obligations payable in respect of any period prior to the date of any change or
specification of a new Applicable Lending Office or any rebooking of any
Advance.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the any such New York State
court or in such federal court may be made upon CT Corporation System at its
offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent") and
each Designated Subsidiary hereby irrevocably appoints the Process Agent its
authorized agent to accept such service of process, and agrees that the failure
of the Process Agent to give any notice of any such service shall not impair or
affect the validity of such service or of any judgment rendered in any action or
proceeding based thereon. Each Borrower hereby further irrevocably consents to
the service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid,
to such Borrower at its address specified pursuant to Section 9.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to serve legal process in any
other manner permitted by law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction. To the extent
that each Designated
71
Subsidiary has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each Designated Subsidiary hereby irrevocably
waives such immunity in respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.13. Substitution of Currency. If a change in any Foreign
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Company) to be necessary to reflect the change in currency
and to put the Lenders and the Borrowers in the same position, so far as
possible, that they would have been in if no change in such Foreign Currency had
occurred.
SECTION 9.14. Final Agreement. This written agreement represents the
full and final agreement between the parties with respect to the matters
addressed herein and supercedes all prior communications, written or oral, with
respect thereto. There are no unwritten agreements between the parties.
SECTION 9.15. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "Original Currency") into another currency (the
"Other Currency"), the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at 9:00 A.M. (New York City time) on the first
Business Day preceding that on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Agent hereunder or under the
Revolving Credit Note or Revolving Credit Notes held by such Lender shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the Agent
(as the case may be) of any sum adjudged to be so due in such Other Currency,
such Lender or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such Other Currency; if the amount of
Dollars so purchased is less than the sum originally due to such Lender or the
Agent (as the case may be) in the Original Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the amount of
Dollars so purchased exceeds the sum originally due to any Lender or the Agent
(as the case may be) in the Original Currency, such Lender or the Agent (as the
case may be) agrees to remit to such Borrower such excess.
72
SECTION 9.16. No Liability of the Issuing Banks. None of the Agent,
the Lenders nor any Issuing Bank, nor any of their Affiliates, or the respective
directors, officers, employees, agents and advisors of such Person or such
Affiliate, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; provided that the foregoing shall not be construed to
excuse any Issuing Bank from liability to the applicable Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrowers to the extent permitted by applicable
law) suffered by such Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof or any failure to honor a
Letter of Credit where such Issuing Bank is, under applicable law, required to
honor it. The parties hereto expressly agree that, as long as the Issuing Bank
has not acted with gross negligence or willful misconduct, such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its reasonable discretion, either accept and make payment
upon such documents without responsibility for further investigation or refuse
to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
SECTION 9.17. Patriot Act Notice. Each Lender hereby notifies the
Company that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies each borrower,
guarantor or grantor (the "Loan Parties"), which information includes the name
and address of each Loan Party and other information that will allow such Lender
to identify such Loan Party in accordance with the Act.
73
SECTION 9.18. Waiver of Jury Trial. Each Borrower, the Agent and
each Lender hereby irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
HONEYWELL INTERNATIONAL INC.
By: /s/ Xxxx X. Tus
Title: Treasurer
CITICORP USA, INC., as Agent
By: /s/ Xxxxxx Xxxxx
Title: Vice President
LETTER OF CREDIT COMMITMENT
---------------------------
$66,666,667 CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxx
Title: Vice President
$66,666,666 BANK OF AMERICA, N.A.
By: Xxxx X. Xxxxxxxx
Title: Managing Director
$66,666,666 JPMORGAN CHASE BANK
By: /s/ Xxxxxxxxx Xxxxxx
Title: Vice President
$200,000,000 TOTAL OF LETTER OF CREDIT COMMITMENTS
REVOLVING CREDIT COMMITMENT ARRANGER AND ADMINISTRATIVE AGENT
--------------------------- ---------------------------------
$105,000,000.00 CITICORP USA, INC.
By: /s/ Xxxxxx Xxxxx
Title: Vice President
74
ARRANGER AND SYNDICATION AGENT
------------------------------
$105,000,000.00 JPMORGAN CHASE BANK
By: /s/ Xxxxxxxxx Xxxxxx
Title: Vice President
DOCUMENTATION AGENTS
--------------------
$75,000,000.00 BANK OF AMERICA, N.A.
By: Xxxx X. Xxxxxxxx
Title: Managing Director
$75,000,000.00 BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
Title: Director
$75,000,000.00 DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxxxx
Title: Vice President
$75,000,000.00 UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director
By: /s/ Winslowe Ogbourne
Title: Associate Director
SENIOR MANAGING AGENTS
----------------------
$50,000,000.00 ABN AMRO BANK N.V.
By: /s/ Xxxx Xxxxxxxxxxx
Title: Director
By: /s/ Xxxxxxxxx X. Xxxxx
Title: Director
75
$50,000,000.00 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ X. Xxxx
Title: Vice President
$50,000,000.00 BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxx
Title: Managing Director
$50,000,000.00 THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxxxx Xxxxxxxxx
Title: Senior Vice President
$50,000,000.00 WACHOVIA BANK, N.A.
By: Xxxxxx X. XxXxxx, Xx.
Title: Director
MANAGING AGENTS
---------------
$34,000,000.00 ING CAPITAL LLC
By: /s/ Xxxxxx Xxxxxxx
Title: Managing Director
$34,000,000.00 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
76
LENDERS
-------
$20,000,000.00 CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Xxxx Xxxxx
Title: Vice President
$20,000,000.00 MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxx X. Xxxx
Title: Senior Vice President & Team Leader
$20,000,000.00 ROYAL BANK OF CANADA
By: /s/ Xxxxxx Xxx
Title: Authorized Signatory
$20,000,000.00 SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxx XxXxxxx
Title: Vice President and Department Head
$20,000,000.00 UNICREDITO ITALIANO S.p.A., NEW YORK BRANCH
By: /s/ Xxxxxxxxxxx X. Xxxxx
Title: First Vice President and Deputy Manager
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President
$12,000,000.00 BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ Xxxx Xxxxxx
Title: Vice President
77
$12,000,000.00 SANTANDER CENTRAL HISPANO, S.A.,
NEW YORK BRANCH
By: /s/ Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxx Xxxxxxxxx
Title: Vice President
$12,000,000.00 DANSKE BANK A/S, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxx
Title: Assistant General Manager
$12,000,000.00 SKANDINAVISKA ENSKILDA XXXXXX
XX (PUBL)
By: Xxxxxxx Xxxxx
Title: Authorized Signatory
By: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
$12,000,000.00 SOCIETE GENERALE
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Director
$12,000,000.00 WESTPAC BANKING CORPORATION
By: /s/ Xxxxxx Xxxxx
Title: Vice President
$1,000,000,000 TOTAL OF COMMITMENTS
78
SCHEDULE I
APPLICABLE LENDING OFFICES
-------------------------------------- --------------------------------------- ------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
-------------------------------------- --------------------------------------- ------------------------------------------
ABN AMRO Bank N.V. 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Credit Administration Attn: Credit Administration
Phone: (000) 000-00000 Phone: (000) 000-00000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Banco Bilbao Vizcaya Argentarie S.A. 1345 Avenue of the Americas 1345 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Bank of America, N.A. 000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
The Bank of Tokyo-Mitsubishi 1251 Avenue of the Americas 1251 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xx Attn: Xxxxxxx Xx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Barclays Bank PLC 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx Attn: Xxxxxx Xxxxx
Phone: (000) 000 0000 Phone: (000) 000 0000
Fax: (000) 000 0000 Fax: (000) 000 0000
-------------------------------------- --------------------------------------- ------------------------------------------
BNP Paribas 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx/Xxxxx Attn: Xxxxxx Xxxxxx/Xxxxx Xxxxxxx-Xxxxxx
Xxxxxxx-Xxxxxx Phone: (000) 000-0000/9616
Phone: (000) 000-0000/9616 Fax: (000) 000-0000
Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Citicorp USA, Inc. 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxxxx Xxxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Credit Industriel et Commercial 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
-------------------------------------- --------------------------------------- ------------------------------------------
Danske Bank A/S, Cayman Islands 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Deutsche Bank AG New York Branch 00 Xxxxxx Xxxxxx, Xxxxx 1 00 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxx Xxxxxx Attn: Xxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
ING Capital LLC 1325 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
JPMorgan Chase Bank 000 Xxxxxx 00xx Xxxxx 000 Xxxxxx 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Mizuho Corporate Bank, Ltd. 1251 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
The Northern Trust Company 00 X. XxXxxxx Xxxxxx 00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Honda Attn: Xxxxx Honda
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Royal Bank of Canada Xxx Xxxxxxx Xxxxx, 0xx Xxxxx Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Karim Amr Attn: Karim Amr
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
with a copy to: with a copy to:
Attn: X. Xxxxx Attn: X. Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
The Royal Bank of Scotland plc 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Santander Central Hispano, S.A., New 00 Xxxx 00xx Xxxxxx 45 East 53rd Street
York Branch Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Ugla Xxxxxx Attn: Ugla Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
2
-------------------------------------- --------------------------------------- ------------------------------------------
Skandinaviska Enskilda Xxxxxx XX 106 40 Stockholm 000 00 Xxxxxxxxx
Xxxx. Xxxxxx Xxxxxx
Attn: Foreign Credit Administration Attn: Foreign Credit Administration
Phone: (00) 0 000-0000 Phone: (00) 0 000-0000
Fax: (00) 0 000-0000 Fax: (00) 0 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Societe Generale 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Sumitomo Mitsui Banking Corporation 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx XxXxxxx Attn: Xxxxxx XxXxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
UBS Loan Finance LLC 000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
0xx Xxxxx Xxxxx 0xx Xxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxxx Attn: Xxxxxxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Unicredito Italiano 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxxx Attn: Xxxxxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Wachovia Bank, N.A. 000 X. Xxxxxxx Xxxxxx 000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX Xxxxxxxxx, XX
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-------------------------------------- --------------------------------------- ------------------------------------------
Westpac Banking Corporation GMO Nightshift Operations GMO Nightshift Operations
000 Xxxxxxxxx Xx. 0xx Xxxxx 000 Xxxxxxxxx Xx. 0xx Xxxxx
Xxxxxx, XXX 0000 Xxxxxx, XXX 0000
Xxxxxxxxx Xxxxxxxxx
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Phone: 000 000 0000-0000 Phone: 000 000 0000-0000
Fax: 000 00 000 000 0000 Fax: 000 00 000 000 0000
-------------------------------------- --------------------------------------- ------------------------------------------
3
SCHEDULE 2.01(b)
EXISTING LETTERS OF CREDIT
None
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
--------------------
While not giving an opinion as to whether any item is "reasonably
likely to have a Material Adverse Effect," we hereby disclose the litigation
matters as stated in our Form 10-Q for the quarter ended June 30, 2004, under
the heading "Legal Proceedings," as follows.
Shareowner Litigation -- Honeywell and three of its former officers
are defendants in a class action lawsuit filed in the United States District
Court for the District of New Jersey. Plaintiffs allege, among other things,
that the defendants violated federal securities laws by purportedly making false
and misleading statements and by failing to disclose material information
concerning Honeywell's financial performance, thereby allegedly causing the
value of Honeywell's stock to be artificially inflated. The Court has certified
a class consisting of all purchasers of Honeywell stock between December 20,
1999 and June 19, 2000. On June 4, 2004 Honeywell and the lead plaintiffs agreed
to a settlement of this matter which requires a payment to the class of $100
million. Honeywell's contribution to the settlement is $15 million, which amount
had previously been fully reserved. Honeywell's insurance carriers will pay the
remainder of the settlement. The settlement is subject to court approval and
other contingencies. A court hearing on the terms of the settlement is scheduled
for August 16, 2004. Although members of the class may opt out of the
settlement, Honeywell believes that any such claims would be fully insured.
ERISA Class Action Lawsuit -- Honeywell and several of its current
and former officers and directors are defendants in a purported class action
lawsuit filed in the United States District Court for the District of New
Jersey. The complaint principally alleges that the defendants breached their
fiduciary duties to participants in the Honeywell Savings and Ownership Plan
(the "Savings Plan") by purportedly making false and misleading statements,
failing to disclose material information concerning Honeywell's financial
performance, and failing to diversify the Savings Plan's assets and monitor the
prudence of Honeywell stock as a Savings Plan investment. In September 2003,
Honeywell filed a motion to dismiss this matter.
Although it is not possible at this time to predict the outcome of
this matter, we believe that the allegations in this matter are without merit
and we expect to prevail. An adverse litigation outcome could, however, be
material to our consolidated financial position or results of operations. As a
result of the uncertainty regarding the outcome of this matter, no provision has
been made in our financial statements with respect to this contingent liability.
Environmental Matters - We are subject to various federal, state and
local government requirements relating to the protection of the environment. We
believe that, as a general matter, our policies, practices and procedures are
properly designed to prevent unreasonable risk of environmental damage and
personal injury and that our handling, manufacture, use and disposal of
hazardous or toxic substances are in accord with environmental and safety laws
and regulations. However, mainly because of past operations and operations of
predecessor companies, we, like other companies engaged in similar businesses,
have incurred remedial response and voluntary cleanup costs for site
contamination and are a party to lawsuits and claims associated with
environmental and safety matters, including past production of products
containing toxic substances. Additional lawsuits, claims and costs involving
environmental matters are likely to continue to arise in the future.
With respect to environmental matters involving site contamination,
we continually conduct studies, individually at our owned sites, and jointly as
a member of industry groups at non-owned sites, to determine the feasibility of
various remedial techniques to address environmental matters. It is our policy
to record appropriate liabilities for environmental matters when environmental
assessments are made or remedial efforts or damage claim payments are probable
and the costs can be reasonably estimated. With respect to site contamination,
the timing of these accruals is generally no later than the completion of
feasibility studies. We expect to fund expenditures for these matters from
operating cash flow. The timing of cash expenditures depends on a number of
factors, including the timing of litigation and settlements of personal injury
and property damage claims, regulatory approval of cleanup projects, remedial
techniques to be utilized and agreements with other parties.
Although we do not currently possess sufficient information to
reasonably estimate the amounts of liabilities to be recorded upon future
completion of studies, litigation or settlements, and neither the timing nor the
amount of the ultimate costs associated with environmental matters can be
determined, they could be material to our consolidated results of operations or
operating cash flows in the periods recognized or paid. However, considering our
past experience and existing reserves, we do not expect that these environmental
matters will have a material adverse effect on our consolidated financial
position.
In the matter entitled Interfaith Community Organization, et al. v.
Honeywell International Inc., et al., the United States District Court for the
District of New Jersey held in May 2003 that a predecessor Honeywell site
located in Jersey City, New Jersey constituted an imminent and substantial
endangerment and ordered Honeywell to conduct the excavation and transport for
offsite disposal of approximately one million tons of chromium residue present
at the site. Honeywell strongly disagrees with the Court's determinations and
has appealed the Court's decision to the Third Circuit Court of Appeals. In
October 2003, the District Court denied Honeywell's motion for a stay of certain
aspects of its May 2003 order, and we have appealed the ruling to the Third
Circuit. The site at issue is one of twenty-one sites located in Jersey City,
New Jersey which are the subject of an Administrative Consent Order (ACO)
entered into with the New Jersey Department of Environmental Protection (NJDEP)
in 1993. Under the ACO, Honeywell agreed to study and remediate these sites in
accordance with NJDEP's directions, provided that the total costs of such
studies and remediation do not exceed $60 million. Honeywell has cooperated with
the NJDEP under the ACO and believes that decisions regarding site cleanups
should be made by the NJDEP under the ACO. We are confident that proceeding
under the ACO will ensure a safe remediation and allow the property to be placed
back into productive use much faster and at a cost significantly less than the
remedies required by the Court's order. We have submitted a remedial action plan
for the excavation and offsite disposal directed under the Court's order to the
Special Master appointed by the Court, for which the estimated cost of
implementing such plan would be approximately $316 million. At trial,
plaintiff's expert testified that the excavation and offsite disposal cost might
be $400 million. However, there are significant variables in the implementation
of the Court's order and depending on the method of implementation chosen, the
estimate could increase or decrease. Provisions have been made in our financial
statements for remedial costs
2
consistent with the ACO, additional costs which are likely to be incurred during
the pendency of our appeal and a potential resolution of the principal issues in
dispute related to such matter. Such provisions do not assume excavation and
offsite removal of chromium. There are alternative outcomes and remedies beyond
the scope of the ACO that could result from the remanding, reversal or
replacement of the Court's decision and order. At this time, we can neither
identify a probable alternative outcome nor reasonably estimate the cost of an
alternative remedy. Although we expect the Court's decision and order to be
remanded, reversed or replaced, should the remedies prescribed in the Court's
decision and order ultimately be upheld, such outcome could have a material
adverse impact on our consolidated results of operations or operating cash flows
in the periods recognized or paid. We do not expect that this matter will have a
material adverse effect on our consolidated financial position.
In accordance with a 1992 consent decree with the State of New York,
Honeywell is studying environmental conditions in and around Onondaga Lake (the
Lake) in Syracuse, New York. The purpose of the study is to identify, evaluate
and propose remedial measures that can be taken to remedy historic industrial
contamination in the Lake. A predecessor company to Honeywell operated a
chemical plant which is alleged to have contributed mercury and other
contaminants to the Lake. In May 2003, Honeywell submitted to the New York State
Department of Environmental Conservation (DEC) a draft Feasibility Study for the
Lake. In November 2003, the DEC issued formal comments on the Feasibility Study.
Those comments included a request for further evaluation of remedies for the
Lake. Pursuant to the consent decree, Honeywell submitted a revised Feasibility
Study on May 3, 2004 (the May 2004 Feasibility Study). Provisions have been made
in our financial statements based on the remedy proposed by Honeywell in the May
2004 Feasibility Study. On July 30, 2004, the DEC requested that Honeywell
provide certain additional information regarding alternative remedial
approaches, site modeling and other technical questions raised by DEC, and
advised Honeywell that, upon receipt of such information, the May 2004
Feasibility Study would be sufficiently complete for DEC to prepare its proposed
remedial action plan for the Lake. When DEC issues its proposed remedial action
plan for the Lake, there will be a public comment period of at least sixty days
during which time Honeywell can also submit comments. Should Honeywell be
required to undertake a substantially more extensive remedy than that which we
proposed in the May 2004 Feasibility Study, such outcome could have a material
adverse impact on our consolidated results of operations and operating cash
flows in the periods recognized or paid. However, we do not expect that this
matter will have a material adverse effect on our consolidated financial
position.
Asbestos Matters -- Like many other industrial companies, Honeywell
is a defendant in personal injury actions related to asbestos. We did not mine
or produce asbestos, nor did we make or sell insulation products or other
construction materials that have been identified as the primary cause of
asbestos related disease in the vast majority of claimants. Products containing
asbestos previously manufactured by Honeywell or by previously owned
subsidiaries fall into two general categories; refractory products and friction
products.
Refractory Products -- Honeywell owned North American Refractories
Company (NARCO) from 1979 to 1986. NARCO produced refractory products (high
temperature bricks and cement) which were sold largely to the steel industry in
the East and Midwest. Less than 2 percent of NARCO's products contained
asbestos.
3
When we sold the NARCO business in 1986, we agreed to indemnify
NARCO with respect to personal injury claims for products that had been
discontinued prior to the sale (as defined in the sale agreement). NARCO
retained all liability for all other claims. NARCO had resolved approximately
176,000 claims through January 4, 2002, the date NARCO filed for reorganization
under Chapter 11 of the U.S. Bankruptcy Code, at an average cost per claim of
two thousand two hundred dollars. Of those claims, 43 percent were dismissed on
the ground that there was insufficient evidence that NARCO was responsible for
the claimant's asbestos exposure. As of the date of NARCO's bankruptcy filing,
there were approximately 116,000 remaining claims pending against NARCO,
including approximately 7 percent in which Honeywell was also named as a
defendant. Since 1983, Honeywell and our insurers have contributed to the
defense and settlement costs associated with NARCO claims.
As a result of the NARCO bankruptcy filing, all of the claims
pending against NARCO are automatically stayed pending the reorganization of
NARCO, except one claim which is not material as to which the stay was lifted in
August 2003. Because the claims pending against Honeywell necessarily will
impact the liabilities of NARCO, because the insurance policies held by
Honeywell are essential to a successful NARCO reorganization, and because
Honeywell has offered to commit the value of those policies to the
reorganization, the bankruptcy court has temporarily enjoined any claims against
Honeywell, current or future, related to NARCO. Although the stay has been
extended twenty-nine times since January 4, 2002, there is no assurance that
such stay will remain in effect. In connection with NARCO's bankruptcy filing,
we paid NARCO's parent company $40 million and agreed to provide NARCO with up
to $20 million in financing. We also agreed to pay $20 million to NARCO's parent
company upon the filing of a plan of reorganization for NARCO acceptable to
Honeywell, and to pay NARCO's parent company $40 million, and to forgive any
outstanding NARCO indebtedness, upon the confirmation and consummation of such a
plan.
As a result of negotiations with counsel representing NARCO related
asbestos claimants regarding settlement of all pending and potential NARCO
related asbestos claims against Honeywell, we have reached definitive agreements
with approximately 260,000 claimants, which represents in excess of 90 percent
of the approximately 275,000 current claimants who are now expected to file a
claim as part of the NARCO reorganization process. We are also in discussions
with the NARCO Committee of Asbestos Creditors on Trust Distribution Procedures
for NARCO. We believe that, as part of the NARCO plan of reorganization, a trust
will be established pursuant to these Trust Distribution Procedures for the
benefit of all asbestos claimants, current and future. If the trust is put in
place and approved by the Court as fair and equitable, Honeywell as well as
NARCO will be entitled to a permanent channeling injunction barring all present
and future individual actions in state or federal courts and requiring all
asbestos related claims based on exposure to NARCO products to be made against
the federally-supervised trust. We expect the NARCO plan of reorganization and
the NARCO trust to be approved by the Court in 2004. As part of its ongoing
settlement negotiations, Honeywell has reached agreement in principle with the
representative for future NARCO claimants to cap its annual contributions to the
trust with respect to future claims at a level that would not have a material
impact on Honeywell's operating cash flows. Given the substantial progress of
negotiations between Honeywell and NARCO related asbestos claimants and between
Honeywell and the Committee of Asbestos Creditors during the fourth quarter of
2002, Honeywell developed an estimated liability for settlement of pending and
future asbestos claims
4
and recorded a charge of $1.4 billion for NARCO related asbestos litigation
charges, net of insurance recoveries. This charge consisted of the estimated
liability to settle current asbestos related claims, the estimated liability
related to future asbestos related claims through 2018 and obligations to
NARCO's parent, net of insurance recoveries of $1.8 billion.
The estimated liability for current claims is based on terms and
conditions, including evidentiary requirements, in definitive agreements with in
excess of 90 percent of current claimants. Settlement payments with respect to
current claims are expected to be made through 2007.
The liability for future claims estimates the probable value of
future asbestos related bodily injury claims asserted against NARCO through 2018
and obligations to NARCO's parent as discussed above. The estimate is based upon
the disease criteria and payment values contained in the NARCO Trust
Distribution Procedures negotiated with the NARCO Committee of Asbestos
Creditors and the NARCO future claimants representative. In light of the
uncertainties inherent in making long-term projections we do not believe that we
have a reasonable basis for estimating asbestos claims beyond 2018 under
Statement of Financial Accounting Standards No. 5. Honeywell retained the expert
services of Xxxxxxxx, Xxxxxxxxxx and Xxxxxxxxx, Inc. (HR&A) to project the
probable number and value, including trust claim handling costs, of asbestos
related future liabilities based upon historical experience with similar trusts.
The methodology used to estimate the liability for future claims has been
commonly accepted by numerous courts and is the same methodology that is
utilized by an expert who is routinely retained by the asbestos claimants
committee in asbestos related bankruptcies. The valuation methodology includes
an analysis of the population likely to have been exposed to asbestos containing
products, epidemiological studies to estimate the number of people likely to
develop asbestos related diseases, NARCO claims filing history, the pending
inventory of NARCO asbestos related claims and payment rates expected to be
established by the NARCO trust.
Honeywell has approximately $1.4 billion in insurance limits
remaining that reimburses it for portions of the costs incurred to settle NARCO
related claims and court judgments as well as defense costs. This coverage is
provided by a large number of insurance policies written by dozens of insurance
companies in both the domestic insurance market and the London excess market. At
June 30, 2004, a significant portion of this coverage is with insurance
companies with whom we have agreements to pay full policy limits based on
corresponding Honeywell claims costs. This includes agreements with a
substantial majority of the London-based insurance companies entered into
primarily in the first quarter of 2004. We conduct analyses to determine the
amount of insurance that we estimate is probable that we will recover in
relation to payment of current and projected future claims. While the
substantial majority of our insurance carriers are solvent, some of our
individual carriers are insolvent, which has been considered in our analysis of
probable recoveries. In the second quarter of 2004, based on our ongoing
evaluation of our ability to enforce our rights under the various insurance
policies, we concluded that we had additional probable insurance recoveries of
$47 million, net of solvency reserves, which has been reflected in insurance
receivables. We made judgments concerning insurance coverage that we believe are
reasonable and consistent with our historical dealings with our insurers, our
knowledge of any pertinent solvency issues surrounding insurers and various
judicial determinations relevant to our insurance programs.
5
Projecting future events is subject to many uncertainties that could
cause the NARCO related asbestos liabilities to be higher or lower than those
projected and recorded. There is no assurance that a plan of reorganization will
be proposed or confirmed, that insurance recoveries will be timely or whether
there will be any NARCO related asbestos claims beyond 2018. Given the inherent
uncertainty in predicting future events, we review our estimates periodically,
and update them based on our experience and other relevant factors. Similarly we
will reevaluate our projections concerning our probable insurance recoveries in
light of any changes to the projected liability or other developments that may
impact insurance recoveries.
Friction Products -- Honeywell's Bendix Friction Materials (Bendix)
business manufactured automotive brake pads that contained chrysotile asbestos
in an encapsulated form. There is a group of existing and potential claimants
consisting largely of individuals that allege to have performed brake
replacements.
From 1981 through June 30, 2004, we have resolved approximately
69,000 Bendix related asbestos claims including trials covering 120 plaintiffs,
which resulted in 115 favorable verdicts. Trials covering five individuals
resulted in adverse verdicts; however, two of these verdicts were reversed on
appeal and the remaining three claims were settled.
Through the second quarter of 2002, Honeywell had no out-of-pocket
costs for Bendix related asbestos claims since its insurance deductible was
satisfied many years ago. Beginning with claim payments made in the third
quarter of 2002, Honeywell began advancing indemnity and defense claim costs.
During the first six months of 2004, those indemnity and defense costs were
approximately $72 million. During the years ended December 31, 2003 and 2002,
those indemnity and defense costs amounted to approximately $112 and $70
million, respectively. Approximately 50 percent of these amounts are deemed
probable to be reimbursed by insurance. During the year ended December 31, 2003
Honeywell collected $90 million in insurance reimbursements and settlements
related to asbestos claims. See further discussion of insurance coverage below.
The following tables present information regarding Bendix related
asbestos claims activity:
Years Ended
December 31,
------------
Claims Activity Six Months Ended 2003 2002
--------------- June 30, 2004 ---- ----
-------------
Claims Unresolved at the beginning of period 72,976 50,821 47,000
Claims Filed 5,999 25,765 10,000
Claims Resolved (4,797) (3,610) (6,179)
------- ------- -------
Claims Unresolved at the end of period 74,178 72,976 50,821
====== ====== ======
December 31,
------------
Disease Distribution of Unresolved Claims June 30, 2004 2003 2002
----------------------------------------- ------------- ---- ----
Mesothelioma and Other Cancer Claims 3,731 3,277 3,810
6
Other Claims 70,447 69,699 47,011
------ ------ ------
Total Claims 74,178 72,976 50,821
====== ====== ======
Approximately 30 percent of the 74,000 pending claims at June 30,
2004 are on the inactive, deferred, or similar dockets established in some
jurisdictions for claimants who allege minimal or no impairment. The
approximately 74,000 pending claims also include claims filed in jurisdictions
such as Texas, Virginia and Mississippi that allow for consolidated filings. In
these jurisdictions, plaintiffs are permitted to file complaints against a
pre-determined master list of defendants, regardless of whether they have claims
against each individual defendant. Many of these plaintiffs may not actually
have claims against Honeywell. Based on state rules and prior experience in
these jurisdictions, we anticipate that many of these claims will ultimately be
dismissed. During 2003, Honeywell was served with numerous complaints filed in
Mississippi in advance of the January 1, 2003 effective date for tort reform in
that state. Also during 2003, Honeywell experienced an increase in nonmalignancy
filings that we believe were in response to the possibility of federal
legislation. Based on prior experience, we anticipate that many of these claims
will be placed on deferred, inactive or similar dockets or be dismissed.
Honeywell has experienced average resolution values excluding legal costs for
malignant claims of approximately ninety five thousand and one hundred sixty six
thousand dollars in 2003 and 2002, respectively. Honeywell has experienced
average resolution values excluding legal costs for nonmalignant claims of
approximately three thousand five hundred and one thousand three hundred dollars
in 2003 and 2002, respectively. It is not possible to predict whether resolution
values for Bendix related asbestos claims will increase, decrease or stabilize
in the future.
We have accrued for the estimated cost of pending asbestos related
claims. The estimate is based on the number of pending claims at June 30, 2004,
disease classifications, expected settlement values and historic dismissal
rates. Honeywell retained the expert services of HR&A (see discussion of HR&A
under Refractory products above) to assist in developing the estimated expected
settlement values and historic dismissal rates. We cannot reasonably estimate
losses which could arise from future Bendix related asbestos claims because we
cannot predict how many additional claims may be brought against us, the
allegations in such claims or their probable outcomes and resulting settlement
values in the tort system.
Honeywell presently has approximately $1.9 billion of insurance
coverage remaining with respect to pending Bendix related asbestos claims as
well as claims which may be filed against us in the future. This coverage is
provided by a large number of insurance policies written by dozens of insurance
companies in both the domestic insurance market and the London excess market.
Although Honeywell has approximately $1.9 billion in insurance, there are gaps
in our coverage due to insurance company insolvencies, a comprehensive policy
buy-back settlement with Equitas in 2003 and certain uninsured periods. We
analyzed the amount of insurance that we estimate is probable that we will
recover in relation to payment of asbestos related claims and determined that
approximately 50 percent of expenditures for such claims are recoverable by
insurance. While the substantial majority of our insurance carriers are solvent,
some of our individual carriers are insolvent, which has been considered in our
analysis of probable recoveries. We made judgments concerning insurance coverage
that we believe are reasonable and consistent with our historical dealings with
our insurers, our knowledge of any pertinent solvency issues surrounding
insurers and various judicial determinations relevant to our
7
insurance programs. Based on our analysis, at June 30, 2004 we had amounts
receivable from our insurers of approximately $300 million representing probable
reimbursements associated with our liability for pending claims as well as
amounts due to us for previously settled and paid claims related to the
estimated liabilities for pending claims.
Honeywell believes it has sufficient insurance coverage and reserves
to cover all pending Bendix related asbestos claims. Although it is impossible
to predict the outcome of pending claims or to reasonably estimate losses which
could arise from future Bendix related asbestos claims, we do not believe that
such claims would have a material adverse effect on our consolidated financial
position in light of our insurance coverage and our prior experience in
resolving such claims. If the rate and types of claims filed, the average
indemnity cost of such claims and the period of time over which claim
settlements are paid (collectively, the "Variable Claims Factors") do not
substantially change, Honeywell would not expect future Bendix related asbestos
claims to have a material adverse effect on our results of operations or
operating cash flows in any fiscal year. No assurances can be given, however,
that the Variable Claims Factors will not substantially change.
Refractory and Friction Products -- NARCO and Bendix asbestos
related balances are included in the following balance sheet accounts:
June 30, December 31,
2004 2003
---- ----
Other current assets $ 145 $ 130
Insurance recoveries for asbestos related liabilities 1,401 1,317
----- -----
$1,546 $1,447
====== ======
Accrued liabilities $ 756 $ 730
----- -----
Asbestos related liabilities 2,096 2,279
----- -----
$2,852 $3,009
====== ======
During the first six months of 2004, we paid $323 million in
indemnity and defense costs related to NARCO and Bendix claims. Additionally, we
recognized a charge of $9 million for Bendix related asbestos claims filed and
defense costs incurred during the second quarter of 2004 including an update of
expected resolution values with respect to claims pending as of June 30, 2004.
The charge is net of probable Bendix related insurance recoveries and an
additional $47 million of NARCO insurance deemed probable of recovery.
We are monitoring proposals for federal asbestos legislation pending
in the United States Congress. Due to the uncertainty surrounding the proposed
legislation, it is not possible at this point in time to determine what impact
such legislation would have on the NARCO bankruptcy strategy or our asbestos
liabilities and related insurance recoveries.
8
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the aggregate principal amount of the Revolving
Credit Advances made by the Lender to the Borrower pursuant to the Five Year
Credit Agreement dated as of October 22, 2004 among Honeywell International
Inc., the Lender and certain other lenders parties thereto, and Citicorp USA,
Inc., as Agent for the Lender and such other lenders (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit
Advance (i) in Dollars are payable in lawful money of the United States of
America to Citicorp USA, Inc., as Agent, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, in same day funds and (ii) in any Major Currency are payable in
such currency at the applicable Payment Office in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned or
the Equivalent thereof in one or more Major Currencies, the indebtedness of the
Borrower resulting from each such Revolving Credit Advance being evidenced by
this Promissory Note, (ii) contains provisions for determining the Dollar
Equivalent of Revolving Credit Advances denominated in Major Currencies and
(iii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This promissory note shall be governed by, and construed in
accordance with the laws of the State of New York.
[NAME OF BORROWER]
By
------------------------
Name:
Title:
2
ADVANCES AND PAYMENTS OF PRINCIPAL
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Date Type of Amount of Interest Rate Amount of Unpaid Principal Notation
Advance Advance in Principal Paid Balance Made By
Relevant Currency or Prepaid
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Five Year Credit Agreement dated as
of October 22, 2004 among Honeywell International Inc., the Lender and certain
other lenders parties thereto, and Citicorp USA, Inc., as Agent for the Lender
and such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)), on
_______________, the principal amount of [U.S.$_______________] [for a
Competitive Bid Advance in a Foreign Currency, list currency and amount of such
Advance].
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: [____% per annum (calculated on the basis of a year
of _____ days for the actual number of days elapsed)].
Interest Payment Date or Dates: ______________
Both principal and interest are payable in lawful money of
________________ to Citicorp USA, Inc., as Agent, for the account of the Lender
at the office of __________________, at __________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
------------------------
Name:
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citicorp USA, Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of October 22, 2004 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto, and
Citicorp USA, Inc., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________] [for a Revolving Credit Borrowing in a
Major Currency, list currency and amount of Revolving Credit Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the conditions precedent to
this Revolving Credit Borrowing set forth in Section 3.04 of the Credit
Agreement have been satisfied and the applicable statements contained therein
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing.
Very truly yours,
[NAME OF BORROWER]
By
------------------------
Name:
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citicorp USA, Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of October 22, 2004 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Honeywell International Inc., certain Lenders parties
thereto and Citicorp USA, Inc., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing __________________
(B) Aggregate Amount of Competitive Bid Borrowing __________________
(C) [Maturity Date] [Interest Period] __________________
(D) Interest Rate Basis __________________
(E) Day Count Convention __________________
(F) Interest Payment Date(s) __________________
(G) [Currency] __________________
(H) Borrower's Account Location __________________
(I) ___________________ __________________
The undersigned hereby certifies that the conditions precedent to
this Competitive Bid Borrowing set forth in Section 3.05 of the Credit Agreement
have been satisfied and the applicable statements contained therein are true on
the date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing.
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
------------------------
Name:
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _____________
Reference is made to the Five Year Credit Agreement dated as of
October 22, 2004 (as amended or modified from time to time, the "Credit
Agreement") among Honeywell International Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), and Citicorp USA,
Inc., as agent (the "Agent") for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meaning.
____________ (the "Assignor") and ____________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of the
outstanding rights and obligations under the Credit Agreement (including, in the
case of an assignment of any Revolving Credit Commitment, participations in
Letters of Credit held by the Assignor on the date hereof) set forth on Schedule
1 hereto. After giving effect to such sale and assignment, the Assignee's
Revolving Credit Commitment and Letter of Credit Commitment and the amount of
the Revolving Credit Advances in each relevant currency owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by such Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; [and (iv) attaches the Revolving Credit
Note held by the Assignor and requests that the Agent obtain from the Borrower a
new Revolving Credit Note payable to the order of the Assignee with respect to
the aggregate principal amount of the Revolving Credit Advances assumed by such
Assignee pursuant hereto, substantially in the form of Exhibit A-1 to the Credit
Agreement].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement, provided, however,
that the Assignor's rights under Sections 2.11, 2.14 and 9.04 of the Credit
Agreement, and its obligations under Section 8.05 of the Credit Agreement, shall
survive the assignment pursuant to this Assignment and Acceptance as to matters
occurring prior to the Effective Date.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
and the Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and any
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Dated: ______________
Section 1.
Percentage interest assigned: _____%
Assignee's Revolving Credit Commitment: $_____________
Assignee's Letter of Credit Commitment: $_____________
Section 2.
(a) Assigned Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars assigned: $_____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland assigned: 'L'___________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned: 'Y'___________
Aggregate outstanding principal amount of Revolving Credit
Advances in Euros assigned: 'E'___________
(b) Retained Advances
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars retained: $_____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland retained: 'L'___________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan retained: 'Y'___________
Aggregate outstanding principal amount of Revolving Credit
Advances in Euros retained: 'E'___________
3
Effective Date(1): _______________
[NAME OF ASSIGNOR], as Assignor
By_____________________________
Title:
Dated:_________________________
[NAME OF ASSIGNEE], as Assignee
By_____________________________
Title:
Dated:_________________________
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Consented to this __________ day
of _______________
[NAME OF BORROWER]
By__________________________________________]
Name:
Title:
------------------------
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
4
EXHIBIT D - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the
Credit Agreement (as defined
below) and to Citicorp USA, Inc.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of
October 22, 2004 among Honeywell International Inc. (the "Company"), the Lenders
named therein, and Citicorp USA, Inc., as Agent for said Lenders (the "Credit
Agreement"). For convenience of reference, terms used herein and defined in the
Credit Agreement shall have the respective meanings ascribed to such terms in
the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of __________________
and is duly qualified to transact business in all jurisdictions in which
such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement, its Notes and
the consummation of the transactions contemplated thereby, are within the
Designated Subsidiary's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not cause or constitute a
violation of any provision of law or regulation or any provision of the
charter or by-laws of the Designated Subsidiary or result in the breach
of, or constitute a default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any of the properties,
revenues, or assets of the Designated Subsidiary pursuant to, any
indenture or other agreement or instrument to which the Designated
Subsidiary is a party or by which the Designated Subsidiary or its
property may be bound or affected.
3. This Designation Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will have been duly executed and
delivered, and this
Designation Letter, the Credit Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will constitute a legal, valid and
binding obligation of the Designated Subsidiary enforceable against the
Designated Subsidiary in accordance with their respective terms except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
4. There is no action, suit, investigation, litigation or proceeding
including, without limitation, any Environmental Action, pending or to the
knowledge of the Designated Subsidiary Threatened affecting the Designated
Subsidiary before any court, governmental agency or arbitration that (i)
is reasonably likely to have a Material Adverse Effect, or (ii) purports
to effect the legality, validity or enforceability of this Designation
Letter, the Credit Agreement, any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required in connection with the execution, delivery or performance by
the Designated Subsidiary of this Designation Letter, the Credit Agreement
or the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, licenses, filings or registrations as have heretofore
been made, obtained or effected and are in full force and effect.
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Advance
will not be, (a) an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (b) a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Very truly yours,
HONEYWELL INTERNATIONAL INC.
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
2
EXHIBIT E - FORM OF ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders parties
to the Credit
Agreement (as defined
below) and to Citicorp USA, Inc.,
as Agent for said Lenders
[Name of Designated Subsidiary]
-------------------------------
Ladies and Gentlemen:
Reference is made to (i) that certain Five Year Credit Agreement
dated as of October 22, 2004 among Honeywell International Inc., the Lenders
named therein, and Citicorp USA, Inc., as Agent (such Credit Agreement as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement"; the terms defined therein being used herein as
therein defined), and (ii) to the Designation Letter, dated _________, pursuant
to which __________ has become a Borrower.
Pursuant to Section 9.12 of the Credit Agreement to which __________
has become subject pursuant to its Designation Letter, __________ has appointed
the undersigned (with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Xxxxxx Xxxxxx) as Process Agent to receive on behalf of
______________ and its property service of copies of the summons and complaint
and any other process which may be served in any action or proceeding in any New
York State or Federal court sitting in New York City arising out of or relating
to the Credit Agreement.
The undersigned hereby accepts such appointment as Process Agent and
agrees with each of you that (i) the undersigned will not terminate or abandon
the undersigned agency as such Process Agent without at least six months prior
notice to the Agent (and hereby acknowledges that the undersigned has been
retained for its services as Process Agent through __________ __, 2009), (ii)
the undersigned will maintain an office in New York City through such date and
will give the Agent prompt notice of any change of address of the undersigned,
(iii) the undersigned will perform its duties as Process Agent to receive on
behalf of ______________ and its property service of copies of the summons and
complaint and any other process which may be served in any action or proceeding
in any New York State or Federal court sitting in New York City arising out of
or relating to the Credit Agreement and (iv) the undersigned will forward
forthwith to ______________ at its address at ________________ or, if different,
its then current address, copies of any summons, complaint and other process
which the undersigned receives in connection with its appointment as Process
Agent.
This acceptance and agreement shall be binding upon the undersigned
and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_____________________
2
EXHIBIT F - FORM OF OPINION
OF XXXX X. XXXXXX,
ASSISTANT GENERAL COUNSEL FOR THE COMPANY
__________ __, 2004
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citicorp USA, Inc.,
as Agent for said Lenders
Honeywell International Inc.
----------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iv) of
the Five Year Credit Agreement dated as of October 22, 2004 among Honeywell
International Inc. (the "Company"), the Lenders parties thereto, and Citicorp
USA, Inc., as Agent for said Lenders (the "Credit Agreement"). Terms defined in
the Credit Agreement are, unless otherwise defined herein, used herein as
therein defined.
I have acted as counsel for the Company in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company pursuant to Article III
of the Credit Agreement, including the Certificate of Incorporation of the
Company and all amendments thereto (the "Charter") and the By-laws of the
Company and all amendments thereto (the "By-laws").
(3) A certificate of the Secretary of State of the State of
Delaware, dated ____________, 2004, attesting to the continued corporate
existence and good standing of the Company in that State.
I have also examined the originals, or copies certified to my satisfaction, of
such corporate records of the Company (including resolutions adopted by the
Board of Directors of the Company), certificates of public officials and of
officers of the Company, and agreements, instruments and documents, as I have
deemed necessary as a basis for the opinions hereinafter expressed. As to
questions of fact material to such opinions, I have, when relevant facts were
not
independently established by me, relied upon certificates of the Company or its
officers or of public officials. I have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the Initial Lenders
and the Agent.
I am qualified to practice law in the State of New York, and I do
not purport to be expert in, or to express any opinion herein concerning, any
laws other than the laws of the State of New York, the General Corporation Law
of the State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Company (a) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, (b) is duly
qualified as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires
it to so qualify or be licensed and (c) has all requisite corporate power
and authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes of the Company, and the consummation of the
transactions contemplated thereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and
do not (i) contravene the Charter or the By-laws or (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934 and
the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or any material order, writ, judgment, decree, determination or
award or (iii) conflict with or result in the breach of, or constitute a
default under, any material indenture, loan or credit agreement, lease,
mortgage, security agreement, bond, note or any similar document. The
Credit Agreement and the Notes of the Company have been duly executed and
delivered on behalf of the Company.
3. No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority, administrative agency or
regulatory body, or any third party is required for the due execution,
delivery and performance by the Company of the Credit Agreement or the
Notes of the Company, or for the consummation of the transactions
contemplated thereby.
4. The Credit Agreement is, and each Note of the Company when
delivered under the Credit Agreement will be, the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally or
by the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and
2
except that I express no opinion as to (i) the subject matter jurisdiction
of the District Courts of the United States of America to adjudicate any
controversy relating to the Credit Agreement or the Notes of the Company
or (ii) the effect of the law of any jurisdiction (other than the State of
New York) wherein any Lender or Applicable Lending Office may be located
or wherein enforcement of the Credit Agreement or the Notes of the Company
may be sought which limits rates of interest which may be charged or
collected by such Lender.
5. There is no action, suit, investigation, litigation or proceeding
against the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator now pending or, to the best of my
knowledge, Threatened that is reasonably likely to have a Material Adverse
Effect (other than the Disclosed Litigation) or that purports to affect
the legality, validity or enforceability of the Credit Agreement or any
Note of the Company or the consummation of the transactions contemplated
thereby, and there has been no adverse change in the status, or financial
effect on the Company or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) of the Credit
Agreement.
6. The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
7. The Company is not a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
In connection with the opinions expressed by me above in paragraph
4, I wish to point out that (i) provisions of the Credit Agreement that permit
the Agent or any Lender to take action or make determinations may be subject to
a requirement that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) that a party to whom an advance is owed
may, under certain circumstances, be called upon to prove the outstanding amount
of the Advances evidenced thereby and (iii) the rights of the Agent and the
Lenders provided for in Section 9.04(b) of the Credit Agreement may be limited
in certain circumstances.
Very truly yours,
3
EXHIBIT G - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
____________, 20__
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citicorp USA, Inc., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________ ("Designated
Subsidiary"), I have reviewed that certain Five Year Credit Agreement dated as
of October 22, 2004 among Honeywell International Inc., the Lenders named
therein, and Citicorp USA, Inc., as Agent for such Lenders (the "Credit
Agreement"). In connection therewith, I have also examined the following
documents:
(i) The Designation Letter (as defined in the Credit Agreement)
executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the original,
certified, conformed or photographic copies of such other documents, records,
agreements and certificates as I have considered relevant hereto.
Except as expressly specified herein all terms used herein and
defined in the Credit Agreement shall have the respective meanings ascribed to
them in the Credit Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Designated Subsidiary (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of
_________________________, (b) is duly qualified in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed and (c) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted.
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its Notes,
and the consummation of the transactions contemplated thereby, are within
the Designated Subsidiary's corporate powers, have been duly authorized by
all necessary corporate action, and do not and will
not cause or constitute a violation of any provision of law or regulation
or any material order, writ, judgment, decree, determination or award or
any provision of the charter or by-laws or other constituent documents of
the Designated Subsidiary or result in the breach of, or constitute a
default or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any of the properties, revenues, or
assets of the Designated Subsidiary pursuant to, any material indenture or
other agreement or instrument to which the Designated Subsidiary is a
party or by which the Designated Subsidiary or its property may be bound
or affected. The Designation Letter and each Note of the Designated
Subsidiary has been duly executed and delivered on behalf of the
Designated Subsidiary.
3. The Credit Agreement and the Designation Letter of the Designated
Subsidiary are, and each Note of the Designated Subsidiary when delivered
under the Credit Agreement will be, the legal, valid and binding
obligation of the Designated Subsidiary enforceable in accordance with
their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally or
by the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except that I express no opinion as to (i) the subject matter
jurisdiction of the District Courts of the United States of America to
adjudicate any controversy relating to the Credit Agreement, the
Designation Letter of the Designated Subsidiary or the Notes of the
Designated Subsidiary or (ii) the effect of the law of any jurisdiction
(other than the State of New York) wherein any Lender or Applicable
Lending Office may be located or wherein enforcement of the Credit
Agreement, the Designation Letter of the Designated Subsidiary or the
Notes of the Designated Subsidiary may be sought which limits rates of
interest which may be charged or collected by such Lender.
4. There is no action, suit, investigation, litigation or proceeding
at law or in equity before any court, governmental agency or arbitration
now pending or, to the best of my knowledge and belief, Threatened against
the Designated Subsidiary that is reasonably likely to have a Material
Adverse Effect or that purports to affect the legality, validity or
enforceability of the Designation Letter of the Designated Subsidiary, the
Credit Agreement or any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative body
are required for the due execution, delivery and performance by the
Designated Subsidiary of its Designation Letter, the Credit Agreement or
the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, licenses, filings or registrations as have heretofore
been made, obtained or affected and are in full force and effect.
6. The Designated Subsidiary is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
2
7. The Designated Subsidiary is not a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
In connection with the opinions expressed by me above in paragraph
3, I wish to point out that (i) provisions of the Credit Agreement which permit
the Agent or any Lender to take action or make determinations may be subject to
a requirement that such action be taken or such determinations be made on a
reasonable basis and in good faith, (ii) a party to whom an advance is owed may,
under certain circumstances, be called upon to prove the outstanding amount of
the Advances evidenced thereby and (iii) the rights of the Agent and the Lenders
provided for in Section 9.04(b) of the Credit Agreement may be limited in
certain circumstances.
Very truly yours,
3
EXHIBIT H - FORM OF OPINION
OF SHEARMAN & STERLING LLP,
COUNSEL TO THE AGENT
[S&S LETTERHEAD]
__________ __, 2004
To the Initial Lenders party to the Credit
Agreement referred to below and to
Citicorp USA, Inc., as Agent
Honeywell International Inc.
----------------------------
Ladies and Gentlemen:
We have acted as counsel to Citicorp USA, Inc., as Agent (the
"Agent"), in connection with the Credit Agreement, dated as of October 22, 2004
(the "Credit Agreement"), among Honeywell International Inc., a Delaware
corporation (the "Borrower"), and each of you. Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as therein defined.
In that connection, we have reviewed originals or copies of the
following documents:
(a) The Credit Agreement.
(b) The Notes executed by the Borrower and delivered on the date
hereof.
The documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the "Opinion Documents."
We have also reviewed originals or copies of such other agreements
and documents as we have deemed necessary as a basis for the opinion expressed
below.
In our review of the Opinion Documents and other documents, we have
assumed:
(A) The genuineness of all signatures.
(B) The authenticity of the originals of the documents
submitted to us.
(C) The conformity to authentic originals of any documents
submitted to us as copies.
(D) As to matters of fact, the truthfulness of the
representations made in the Credit Agreement.
(E) That each of the Opinion Documents is the legal, valid
and binding obligation of each party thereto, other than
the Borrower, enforceable against each such party in
accordance with its terms.
(F) That:
(1) The Borrower is an entity duly organized and validly
existing under the laws of the jurisdiction of its
organization.
(2) The Borrower has full power to execute, deliver and
perform, and has duly executed and delivered, the Opinion
Documents.
(3) The execution, delivery and performance by the
Borrower of the Opinion Documents have been duly authorized by
all necessary action (corporate or otherwise) and do not:
(a) contravene its certificate or articles of
incorporation, by-laws or other organizational
documents;
(b) except with respect to Generally Applicable
Law, violate any law, rule or regulation applicable to
it; or
(c) result in any conflict with or breach of any
agreement or document binding on it.
(4) Except with respect to Generally Applicable Law, no
authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body
or (to the extent the same is required under any agreement or
document binding on it of which an addressee hereof has
knowledge, has received notice or has reason to know) any
other third party is required for the due execution, delivery
or performance by the Borrower of any Opinion Document or, if
any such authorization, approval, action, notice or filing is
required, it has been duly obtained, taken, given or made and
is in full force and effect.
We have not independently established the validity of the foregoing
assumptions.
"Generally Applicable Law" means the federal law of the United
States of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Borrower, the Opinion Documents or the
transactions governed by the Opinion Documents. Without limiting the generality
of the foregoing definition of Generally Applicable Law, the term "Generally
Applicable Law" does not include any law, rule or regulation that is applicable
to the Borrower,
2
the Opinion Documents or such transactions solely because such law, rule or
regulation is part of a regulatory regime applicable to the specific assets or
business of any party to any of the Opinion Documents or any of its affiliates.
Based upon the foregoing and upon such other investigation as we
have deemed necessary and subject to the qualifications set forth below, we are
of the opinion that each Opinion Document is the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
Our opinion expressed above is subject to the following
qualifications:
(a) Our opinion is subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including without limitation all laws relating to
fraudulent transfers).
(b) Our opinion is subject to the effect of general principles of
equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(c) We express no opinion with respect to the enforceability of
indemnification provisions, or of release or exculpation provisions,
contained in the Opinion Documents to the extent that enforcement thereof
is contrary to public policy regarding the indemnification against or
release or exculpation of criminal violations, intentional harm or
violations of securities laws.
(d) We express no opinion with respect to the enforceability of any
indemnity against loss in converting into a specified currency the
proceeds or amount of a court judgment in another currency.
(e) Our opinion is limited to Generally Applicable Law.
A copy of this opinion letter may be delivered by any of you to any
person that becomes a Lender in accordance with the provisions of the Credit
Agreement. Any such person may rely on the opinion expressed above as if this
opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the
transactions contemplated by the Opinion Documents. This opinion letter may not
be relied upon by you or any person entitled to rely on this opinion pursuant to
the preceding paragraph for any other purpose without our prior written consent.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinion expressed herein.
Very truly yours,
3
EXECUTION COPY
U.S. $1,000,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of October 22, 2004
Among
HONEYWELL INTERNATIONAL INC.,
as Borrower,
------------
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
-------------------
and
CITICORP USA, INC.,
as Administrative Agent
-----------------------
and
JPMORGAN CHASE BANK
as Syndication Agent
--------------------
and
BANK OF AMERICA, N.A.
BARCLAYS BANK PLC
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS SECURITIES LLC
as Documentation Agents
-----------------------
and
CITIGROUP GLOBAL MARKETS INC.
and
X.X.XXXXXX SECURITIES INC.
as Joint Lead Arrangers and Co-Book Managers
--------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.01. Certain Defined Terms .............................................. 1
SECTION 1.02. Computation of Time Periods ........................................ 18
SECTION 1.03. Accounting Terms ................................................... 18
ARTICLE II
SECTION 2.01. The Revolving Credit Advances and Letters of Credit ................ 18
SECTION 2.02. Making the Revolving Credit Advances ............................... 19
SECTION 2.03. The Competitive Bid Advances ....................................... 21
SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of Credit . 26
SECTION 2.05. Fees ............................................................... 28
SECTION 2.06. Termination or Reduction of the Commitments ........................ 29
SECTION 2.07. Repayment of Advances .............................................. 31
SECTION 2.08. Interest on Revolving Credit Advances .............................. 32
SECTION 2.09. Interest Rate Determination ........................................ 33
SECTION 2.10. Prepayments of Revolving Credit Advances ........................... 34
SECTION 2.11. Increased Costs .................................................... 36
SECTION 2.12. Illegality ......................................................... 37
SECTION 2.13. Payments and Computations .......................................... 37
SECTION 2.14. Taxes .............................................................. 38
SECTION 2.15. Sharing of Payments, Etc ........................................... 41
SECTION 2.16. Use of Proceeds .................................................... 41
SECTION 2.17. Evidence of Debt ................................................... 41
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 .... 42
SECTION 3.02. Conditions Precedent to Initial Borrowing .......................... 43
SECTION 3.03. Initial Loan to Each Designated Subsidiary ......................... 44
SECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing and Issuance 44
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing ............. 45
SECTION 3.06. Determinations Under Section 3.01 .................................. 46
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company ...................... 46
ARTICLE V
SECTION 5.01. Affirmative Covenants .............................................. 49
SECTION 5.02. Negative Covenants ................................................. 52
ARTICLE VI
SECTION 6.01. Events of Default .................................................. 54
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default ........... 58
ARTICLE VII
SECTION 7.01. Unconditional Guarantee ............................................ 58
SECTION 7.02. Guarantee Absolute ................................................. 59
SECTION 7.03. Waivers ............................................................ 59
SECTION 7.04. Remedies ........................................................... 60
SECTION 7.05. No Stay ............................................................ 60
SECTION 7.06. Survival ........................................................... 60
ARTICLE VIII
SECTION 8.01. Authorization and Action ........................................... 61
SECTION 8.02. Agent's Reliance, Etc .............................................. 61
SECTION 8.03. CUSA and Affiliates ................................................ 61
SECTION 8.04. Lender Credit Decision ............................................. 62
SECTION 8.05. Indemnification .................................................... 62
SECTION 8.06. Successor Agent .................................................... 63
SECTION 8.07. Sub-Agent .......................................................... 63
SECTION 8.08. Other Agents ....................................................... 63
ARTICLE IX
SECTION 9.01. Amendments, Etc .................................................... 64
SECTION 9.02. Notices, Etc ....................................................... 64
SECTION 9.03. No Waiver; Remedies ................................................ 65
SECTION 9.04. Costs and Expenses ................................................. 65
SECTION 9.05. Binding Effect ..................................................... 66
SECTION 9.06. Assignments and Participations ..................................... 67
SECTION 9.07. Designated Subsidiaries ............................................ 69
SECTION 9.08. Confidentiality .................................................... 70
SECTION 9.09. Mitigation of Yield Protection ..................................... 70
SECTION 9.10. Governing Law ...................................................... 71
SECTION 9.11. Execution in Counterparts .......................................... 71
SECTION 9.12. Jurisdiction, Etc .................................................. 71
SECTION 9.13. Substitution of Currency ........................................... 72
SECTION 9.14. Final Agreement .................................................... 72
SECTION 9.15. Judgment ........................................................... 72
SECTION 9.16. No Liability of the Issuing Banks .................................. 73
SECTION 9.17. Patriot Act Notice ................................................. 73
SECTION 9.18. Waiver of Jury Trial ............................................... 74
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Letter
Exhibit E - Form of Acceptance by Process Agent
Exhibit F - Form of Opinion of Xxxx X Xxxxxx, Assistant General Counsel of
the Company
Exhibit G - Form of Opinion of Counsel to a Designated Subsidiary
Exhibit H - Form of Opinion of Shearman & Sterling LLP, Counsel to the
Agent
