EXECUTION COPY
U.S. $2,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of December 2, 1999
Among
HONEYWELL INTERNATIONAL INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent
and
THE CHASE MANHATTAN BANK
DEUTSCHE BANK AG
BANK OF AMERICA, N.A.
as Syndication Agents
and
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ..............................................1
SECTION 1.02. Computation of Time Periods .......................................15
SECTION 1.03. Accounting Terms ..................................................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances .....................................15
SECTION 2.02. Making the Revolving Credit Advances ..............................16
SECTION 2.03. The Competitive Bid Advances ......................................18
SECTION 2.04. Fees ..............................................................23
SECTION 2.05. Termination or Reduction of the Commitments .......................24
SECTION 2.06. Repayment of Advances .............................................26
SECTION 2.07. Interest on Revolving Credit Advances .............................26
SECTION 2.08. Interest Rate Determination .......................................27
SECTION 2.09. Prepayments of Revolving Credit Advances ..........................29
SECTION 2.10. Increased Costs ...................................................30
SECTION 2.11. Illegality ........................................................31
SECTION 2.12. Payments and Computations .........................................31
SECTION 2.13. Taxes .............................................................33
SECTION 2.14. Sharing of Payments, Etc. .........................................36
SECTION 2.15. Use of Proceeds ...................................................36
SECTION 2.16. Extension of Termination Date .....................................36
SECTION 2.17. Evidence of Debt ..................................................38
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 ...39
SECTION 3.02. Conditions Precedent to Initial Borrowing .........................41
SECTION 3.03. Initial Loan to Each Designated Subsidiary ........................41
Page
SECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing ...........42
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing ............43
SECTION 3.06. Determinations Under Section 3.01 .................................44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company .....................44
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants .............................................48
SECTION 5.02. Negative Covenants ................................................51
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default .................................................53
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee ...........................................58
SECTION 7.02. Guarantee Absolute ................................................58
SECTION 7.03. Waivers ...........................................................59
SECTION 7.04. Remedies ..........................................................59
SECTION 7.05. No Stay ...........................................................60
SECTION 7.06. Survival ..........................................................60
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action ..........................................60
SECTION 8.02. Agent's Reliance, Etc. ............................................60
SECTION 8.03. Citibank and Affiliates ...........................................61
Page
SECTION 8.04. Lender Credit Decision ............................................61
SECTION 8.05. Indemnification ...................................................61
SECTION 8.06. Successor Agent ...................................................62
SECTION 8.07. Sub-Agent .........................................................62
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. ..................................................63
SECTION 9.02. Notices, Etc. .....................................................63
SECTION 9.03. No Waiver; Remedies ...............................................64
SECTION 9.04. Costs and Expenses ................................................64
SECTION 9.05. Right of Set-off ..................................................65
SECTION 9.06. Binding Effect ....................................................65
SECTION 9.07. Assignments and Participations ....................................65
SECTION 9.08. Designated Subsidiaries ...........................................68
SECTION 9.09. Confidentiality ...................................................69
SECTION 9.10. Mitigation of Yield Protection ....................................69
SECTION 9.11. Governing Law. ....................................................70
SECTION 9.12. Execution in Counterparts .........................................70
SECTION 9.13. Jurisdiction, Etc. ................................................70
SECTION 9.14. Substitution of Currency ..........................................71
SECTION 9.15. Final Agreement ...................................................71
SECTION 9.16. Judgment ..........................................................71
SECTION 9.17. Waiver of Jury Trial ..............................................73
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of J. Edward Smith, Assistant General Counsel
of the Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
Exhibit I - Form of Opinion of Shearman & Sterling, Counsel to the Agent
364-DAY CREDIT AGREEMENT
Dated as of December 2, 1999
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the "Company"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"),
as administrative agent (the "Agent") for the Lenders (as hereinafter defined),
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 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Janet Wallace, (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.
2
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, as of any date, 0.145% per annum.
"Applicable Percentage" means, as of any date, a 0.055% per
annum.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.16.
"Assumption Agreement" means an agreement in substantially the
form of Exhibit D hereto by which an Eligible Assignee agrees to become
a Lender hereunder pursuant to Section 2.16, in each case agreeing to
be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/32 of 1% or,
if there is no nearest 1/32 of 1%, to the next higher 1/32 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month 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
3
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;
(c) 1/2 of one percent per annum above the Federal
Funds Rate; and
(d) for the period from December 15, 1999 through
January 15, 2000, two percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
denominated in Dollars that bears interest as provided in Section
2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as
the context requires.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advance or
LIBO Rate Advance, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, in the case of an Advance denominated in the
euro, in Frankfurt, Germany) 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 time of the merger of Honeywell Inc. and a wholly owned
Subsidiary of the Company as contemplated by the
4
Merger Agreement, individuals who at the beginning of such twelve-month
period were directors of the Company shall cease to constitute a
majority of the Board of Directors of the Company.
"Commitment" means as to any Lender (i) the Dollar amount set
forth opposite its name on the signature pages hereof, (ii) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth as its Commitment in such
Assumption Agreement or (iii) if such Lender has entered into any
Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d), in each case as the same may be terminated or reduced,
as the case may be, pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance (each
of which shall be a "Type" of Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender to such Borrower.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Consenting Lenders" has the meaning specified in Section
2.16(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Subsidiary" means, at any time, any Subsidiary
the accounts of which are required at that time to be included on a
Consolidated basis in the Consolidated financial statements of the
Company, assuming that such financial statements are prepared in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.11.
5
"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 9.08.
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each mean lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose operations
are conducted primarily in the United States excluding any Subsidiary
whose assets consist primarily of the stock of Subsidiaries whose
operations are conducted outside the United States of America.
"Effective Date" has the meaning specified in Section 3.01.
6
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$10,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having a net worth of at least $500,000,000, calculated in
accordance with GAAP; (v) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $10,000,000,000, so long
as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described
in this clause (v); and (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date
means the equivalent in Dollars of such Foreign Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London
7
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) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan of such Person or
any of its ERISA Affiliates, and 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 such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan of such Person or any of its ERISA Affiliates; (c) the provision
by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan in a distress
termination pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of such Person
or any of its ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of
its ERISA Affiliates from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any
Plan of such Person or any of its ERISA Affiliates; (g) the adoption of
an amendment to a Plan of such Person or any of its ERISA Affiliates
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such
Plan.
"Escrow" means an escrow established with an independent
escrow agent pursuant to an escrow agreement reasonably satisfactory in
form and substance to the Person or Persons asserting the obligation of
one or more Borrowers to make a payment to it or them hereunder.
8
"Eurocurrency Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto
and, with respect to any other Lender, the office of such Lender
specified as its "Eurocurrency Lending Office" in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on the applicable
Telerate Page as the London interbank offered rate for deposits in
Dollars or in the relevant Major Currency at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/32 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in Dollars or
in the relevant Major Currency are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period. If the Telerate Page is unavailable, the
Eurocurrency Rate for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Major Currency that bears interest as
provided in Section 2.07(a)(ii).
"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,
9
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurocurrency Rate Advances or LIBO Rate Advances
is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.16(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advance" has the meaning specified in Section
2.03(a)(i), which Advance shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Major Currency or any Alternate
Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurocurrency Rate Advance and ending on the last day of the
period
10
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 calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means, collectively, (i) Initial Lenders, (ii) each
Assuming Lender that shall become a party hereto pursuant to Section
2.16 and (iii) each Eligible Assignee that shall become a party hereto
pursuant to Section 9.07(a), (b) and (c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) 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
11
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 by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Telerate Page is unavailable, the LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance
denominated in Dollars or in any Foreign Currency and bearing interest
based on the LIBO Rate.
"Lien" means any lien, mortgage, pledge, security interest or
other charge or encumbrance of any kind.
"Local Rate Advance" means a Competitive Bid Advance
denominated in any Foreign Currency sourced from the jurisdiction of
issuance of such Foreign Currency and bearing interest at a fixed rate.
"Major Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of Japan, lawful currency of the
Republic of France and lawful currency of the European Economic and
Monetary Union.
"Majority Lenders" means at any time Lenders holding at least
51% of the then aggregate principal amount (based on the Equivalent in
Dollars at such time) of the Revolving Credit Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments.
"Material Adverse Change" means any material adverse change in
the financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole.
12
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrowers to perform their obligations under
this Agreement or any Note.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of June 4, 1999 among Honeywell Inc., the Company and Blossom
Acquisition Corp, a wholly owned Subsidiary of the Company.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan,
as defined in Section 4001(a)(3) of ERISA, to which such Person or any
of its ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and at least one Person other than such Person or any of its ERISA
Affiliates or (b) was so maintained and in respect of which such Person
or any of its ERISA Affiliates could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Tangible Assets of the Company and its Consolidated
Subsidiaries", as at any particular date of determination, means the
total amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible or renewable
at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangible assets, as set forth in
the most recent balance sheet of the Company and its Consolidated
Subsidiaries and computed in accordance with GAAP.
"Non-Consenting Lender" has the meaning specified in Section
2.16(b).
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
13
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01(b).
"Payment Office" means, for any Foreign Currency, such office
of Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Process Agent" has the meaning specified in Section 9.13(a).
"Rating Condition" has the meaning specified in Section
2.05(c)(ii).
"Rating Condition Notice" has the meaning specified in Section
2.05(c)(ii).
"Reference Banks" means Citibank, Bank of America, N.A., The
Chase Manhattan Bank and Deutsche Bank AG.
"Register" has the meaning specified in Section 9.07(d).
"Restricted Property" means (a) any property of the Company
located within the United States of America that, in the opinion of the
Company's Board of Directors, is a principal manufacturing property or
(b) any shares of capital stock or Debt of any Subsidiary owning any
such property.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
14
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, delivered pursuant to a
request made under Section 2.17 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of such Borrower to
such Lender resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"Sale and Leaseback Transaction" means any arrangement with
any Person (other than the Company or a Subsidiary of the Company), or
to which any such Person is a party, providing for the leasing to the
Company or to a Subsidiary of the Company owning Restricted Property
for a period of more than three years of any Restricted Property that
has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, or to any other Person (other than the
Company or a Subsidiary of the Company) to which funds have been or are
to be advanced by such Person on the security of the leased property.
It is understood that arrangements pursuant to Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended, or any successor provision
having similar effect, are not included within this definition of "Sale
and Leaseback Transaction".
"Single Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and no Person other than such Person and its ERISA Affiliates or (b)
was so maintained and in respect of which such Person or any of its
ERISA Affiliates could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Telerate Page" means, as applicable, page 3740 or 3750 (or
any successor pages, respectively) of Telerate Service of Bridge
Information Services.
15
"Termination Date" means the earlier of (a) November 30, 2000,
or such later date to which it may be extended pursuant to Section
2.16, and (b) the date of termination in whole of the Commitments
pursuant to Section 2.05(a) or Section 6.01 or, if all Lenders elect to
terminate their Commitments as provided therein, Section 2.05(d).
"Threatened" means, with respect to any action, suit,
investigation, litigation or proceeding, a written communication to the
Company or a Designated Subsidiary, as the case may be, expressing an
intention to immediately bring such action, suit, investigation,
litigation or proceeding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed, and all financial computations
and determinations pursuant hereto shall be made, in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"); provided,
however, that, if any changes in accounting principles from those used in the
preparation of such financial statements have been required by the rules,
regulations, pronouncements or opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and have been adopted by the Company
with the agreement of its independent certified public accountants, the Lenders
agree to consider a request by the Company to amend this Agreement to take
account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to any Borrower
16
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount (based in respect of any
Revolving Credit Advance denominated in a Major Currency on the Equivalent in
Dollars determined on the date of delivery of the applicable Notice of Revolving
Credit Borrowing), not to exceed at any time outstanding such Lender's
Commitment, provided that the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount
(based in respect of any Competitive Bid Advance denominated in a Foreign
Currency on the Equivalent in Dollars at such time) of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount not less than $10,000,000 (or the
Equivalent thereof in any Major Currency determined on the date of delivery of
the applicable Notice of Revolving Credit Borrowing) or an integral multiple of
$1,000,000 (or the Equivalent thereof in any Major Currency determined on the
date of delivery of the applicable Notice of Revolving Credit Borrowing) in
excess thereof and shall consist of Revolving Credit Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments; provided, however, that if there is no unused portion of the
Commitment of one or more Lenders at the time of any requested Revolving Credit
Borrowing such Borrowing shall consist of Revolving Credit Advances of the same
Type made on the same day by the Lender or Lenders who do then have an unused
portion of their Commitments ratably according to the unused portion of such
Commitments. Notwithstanding anything herein to the contrary, no Revolving
Credit Borrowing may be made in a Major Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Revolving Credit Advances denominated in Major
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Competitive Bid Advances denominated in Foreign Currencies, would
exceed $500,000,000. Within the limits of each Lender's Commitment, any Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
10:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in any Major
Currency, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars
or (z) 9:00 A.M. (New York City time) on the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by any Borrower to the Agent (and the Agent shall, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
immediately relay such notice to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit
17
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, initial Interest Period and
currency for each such Revolving Credit Advance. Each Lender shall, before 11:00
A.M. (New York City time) on the date of such Revolving Credit Borrowing, in the
case of a Revolving Credit Borrowing consisting of Advances denominated in
Dollars, and before 11:00 A.M. (London time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in any Major Currency, make available for
the account of its Applicable Lending Office to the Agent at the applicable
Agent's account, in same day funds, such Lender's ratable portion (as determined
in accordance with Section 2.01) of such Revolving Credit Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower requesting the Revolving Credit Borrowing at the Agent's aforesaid
address or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, a Borrower may not select Eurocurrency Rate Advances for any
proposed Revolving Credit Borrowing if the obligation of the Lenders to make
Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.08 or
2.11.
(c) Each Notice of Revolving Credit Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower proposing such
Revolving Credit Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made
18
such ratable portion available to the Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the case of such Borrower, the higher of (A) the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (B) the cost of funds incurred by the Agent in respect of
such amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in
the case of Advances denominated in Dollars or (B) the cost of funds incurred by
the Agent in respect of such amount in the case of Advances denominated in any
Major Currency. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may request Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring seven days prior to the Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount (based in respect of any Advance
denominated in a Foreign Currency on the Equivalent in Dollars on such Business
Day) of the Advances then outstanding shall not exceed the aggregate amount of
the Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction). Notwithstanding anything herein to the contrary, no Competitive Bid
Borrowing may be made in a Foreign Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Competitive Bid Advances denominated in Foreign
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Revolving Credit Advances denominated in Major Currencies, would
exceed $500,000,000.
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and the Agent shall, in
the case of a Competitive Bid Borrowing not consisting of Fixed Rate
Advances or LIBO Rate Advances to be denominated in Dollars,
immediately notify the Sub-Agent), by telecopier or telex, a notice of
a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"),
in substantially the form of Exhibit B-2 hereto, specifying therein the
requested (A) date of such proposed Competitive Bid Borrowing, (B)
aggregate amount of such proposed Competitive Bid Borrowing, (C)
interest rate basis and day count convention to be offered by the
Lenders,
19
(D) currency of such proposed Competitive Bid Borrowing, (E) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period of each Competitive Bid Advance to be made as part of
such Competitive Bid Borrowing, or in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances or Local Rate Advances,
maturity date for repayment of each Fixed Rate Advance or Local Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring five days
after the date of such Competitive Bid Borrowing or later than the
Termination Date), (F) interest payment date or dates relating thereto,
(G) location of such Borrower's account to which funds are to be
advanced, and (H) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
time) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in its Notice
of Competitive Bid Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum (each Advance comprising
any such Competitive Bid Borrowing being referred to herein as a "Fixed
Rate Advance") and that the Advances comprising such proposed
Competitive Bid Borrowing shall be denominated in Dollars, (x) 10:00
A.M. (New York City time) at 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,
20
in the case of a Competitive Bid Borrowing consisting of either Fixed
Rate Advances denominated in any Foreign Currency or Local Rate
Advances denominated in any Foreign Currency and (D) before 10:00 A.M.
(New York City time) four Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances denominated in any Foreign
Currency, of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts, or the Equivalent
thereof in Dollars, as the case may be, may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify
such Borrower of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given to the Agent,
by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent, 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:
21
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent (and the Agent
shall give notice to the Sub-Agent, if applicable) of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to such Borrower by the
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Agent notice to that effect;
provided, however, that such Borrower shall not accept any
offer in excess of the requested bid amount for any maturity.
Such Borrower shall accept the offers made by any Lender or
Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that such Competitive Bid Borrowing is canceled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(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
22
when such Lender shall have received notice from the Agent pursuant to
clause (C) of the preceding sentence, make available for the account of
its Applicable Lending Office to the Agent (x) in the case of a
Competitive Bid Borrowing denominated in Dollars, at its address
referred to in Section 9.02, in same day funds, such Lender's portion
of such Competitive Bid Borrowing in Dollars, and (y) in the case of a
Competitive Bid Borrowing in a Foreign Currency, at the Payment Office
for such Foreign Currency as shall have been notified by the Agent to
the Lenders prior thereto, in same day funds, such Lender's portion of
such Competitive Bid Borrowing in such Foreign Currency. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to such Borrower's account at the location specified by
such Borrower in its Notice of Competitive Bid Borrowing. Promptly
after each Competitive Bid Borrowing the Agent will notify each Lender
of the amount of such Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that it accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(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.
23
(d) Any Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the Competitive
Bid Note evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. Such Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance comprising such Competitive Bid Borrowing from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default under Section 6.01(a), such Borrower
shall pay interest on the amount of unpaid principal of and interest on each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 1999, and on the Termination Date.
24
(b) Agent's Fees. The Company shall pay to the Agent for its
own account such fees, and at such times, as the Company and the Agent may
separately agree.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional Ratable Termination or Reduction. The Company shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in an aggregate amount
not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the sum of the
aggregate principal amount of the Competitive Bid Advances denominated in
Dollars then outstanding plus the Equivalent in Dollars (determined as of the
date of the notice of prepayment) of the aggregate principal amount of the
Competitive Bid Advances denominated in Foreign Currencies then outstanding. The
aggregate amount of the Commitments, once reduced as provided in this Section
2.05(a), may not be reinstated.
(b) Non-Ratable Termination by Assignment. The Company shall
have the right, upon at least ten Business Days' written notice to the Agent
(which shall then give prompt notice thereof to the relevant Lender), to require
any Lender to assign, pursuant to and in accordance with the provisions of
Section 9.07, all of its rights and obligations under this Agreement and under
the Notes to an Eligible Assignee selected by the Company; provided, however,
that (i) no Event of Default shall have occurred and be continuing at the time
of such request and at the time of such assignment; (ii) the assignee shall have
paid to the assigning Lender the aggregate principal amount of, and any interest
accrued and unpaid to the date of such assignment on, the Note or Notes of such
Lender; (iii) the Company shall have paid to the assigning Lender any and all
facility fees and other fees payable to such Lender and all other accrued and
unpaid amounts owing to such Lender under any provision of this Agreement
(including, but not limited to, any increased costs or other additional amounts
owing under Section 2.10 and any indemnification for Taxes under Section 2.13)
as of the effective date of such assignment; and (iv) if the assignee selected
by the Company is not an existing Lender, such assignee or the Company shall
have paid the processing and recordation fee required under Section 9.07(a) for
such assignment; provided further that the Company shall have no right to
replace more than three Lenders in any calendar year pursuant to this Section
2.05(b); and provided further that the assigning Lender's rights under Sections
2.10, 2.13 and 9.04, and its obligations under Section 8.05, shall survive such
assignment as to matters occurring prior to the date of assignment.
(c) Non-Ratable Reduction. (i) The Company shall have the
right, at any time other than during any Rating Condition, upon at least ten
Business Days' notice to a Lender (with a copy to the Agent), to terminate in
whole such Lender's Commitment (determined without giving effect to any
Competitive Bid Reduction). Such termination shall be effective, (i) with
respect to such Lender's unused Commitment, on the date set forth in such
notice, provided, however, that such date shall be no earlier than ten Business
Days after receipt of such notice and (ii) with respect to
25
each Advance outstanding to such Lender, on the last day of the then current
Interest Period relating to such Advance; provided further, however, that such
termination shall not be effective, if, after giving effect to such termination,
the Company would, under this Section 2.05(c), reduce the Lenders' Commitments
in any calendar year by an amount in excess of the Commitments of any three
Lenders or $480,000,000, whichever is greater on the date of such termination.
Notwithstanding the preceding proviso, the Company may terminate in whole the
Commitment of any Lender in accordance with the terms and conditions set forth
in Section 2.05(b) or 2.16(b). Upon termination of a Lender's Commitment under
this Section 2.05(c), the Company will pay or cause to be paid all principal of,
and interest accrued to the date of such payment on, Advances owing to such
Lender and pay any facility fees or other fees payable to such Lender pursuant
to the provisions of Section 2.04, and all other amounts payable to such Lender
hereunder (including, but not limited to, any increased costs or other amounts
owing under Section 2.10 and any indemnification for Taxes under Section 2.13);
and upon such payments, the obligations of such Lender hereunder shall, by the
provisions hereof, be released and discharged; provided, however, that such
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05 shall survive such release and discharge as to matters occurring
prior to such date. The aggregate amount of the Commitments of the Lenders once
reduced pursuant to this Section 2.05(c) may not be reinstated.
(ii) For purposes of this Section 2.05(c) only, the term
"Rating Condition" shall mean a period commencing with notice (a "Rating
Condition Notice") by the Agent to the Company and the Lenders to the effect
that the Agent has been informed that the rating of the senior public Debt of
the Company is unsatisfactory under the standard set forth in the next sentence,
and ending with notice by the Agent to the Company and the Lenders to the effect
that such condition no longer exists. The Agent shall give a Rating Condition
Notice promptly upon receipt from the Company or any Lender of notice stating,
in effect, that both of S&P and Moody's (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.
(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
26
such Change of Control, terminate its Commitment, which Commitment shall be
terminated effective as of the later of (i) the date that is 60 calendar days
after such Change of Control or (ii) the end of the Interest Period for any
Advance outstanding at the time of such Change of Control or for any Advance
made pursuant to the next sentence of this Section 2.05(d). Upon the occurrence
of a Change of Control, each Borrower's right to make a Borrowing under this
Agreement shall be suspended for a period of 60 calendar days, except for
Advances having an interest period ending not later than 90 calendar days after
such Change of Control. A notice of termination pursuant to this Section 2.05(d)
shall not have the effect of accelerating any outstanding Advance of such Lender
and the Notes of such Lender.
(e) Mandatory Reduction. To the extent that the Company has
not on or prior to March 31, 2000 reduced the aggregate Commitments to
$1,000,000,000 or less, on March 31, 2000 the aggregate Commitments shall be
reduced to $1,000,000,000 and the Commitment of each Lender shall be reduced
ratably.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall repay to the Administrative Agent, for the ratable
account of the Lenders, on the Termination Date the aggregate principal amount
of all Revolving Credit Advances made to it outstanding on such date.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing by such Borrower to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(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 Base Rate 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, payable in arrears on
the last day of such Interest Period and, if
27
such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on (i) the unpaid principal amount of each Revolving Credit Advance
owing by such Borrower to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
1% per annum above the rate per annum required to be paid on such Revolving
Credit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder by such Borrower that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 1% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurocurrency Rate and each LIBO Rate if the applicable Telerate
Page is unavailable. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Company and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Majority Lenders notify the Agent that (i) they are unable to obtain matching
deposits in the London interbank market at or about 11:00 A.M. (London time) on
the second Business Day before the making of a Borrowing in sufficient amounts
to fund their respective Revolving Credit Advances as part of such Borrowing
during its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Majority Lenders
of making, funding or maintaining their respective Eurocurrency Rate Advances
for such Interest Period, the Agent shall forthwith so notify each Borrower and
the Lenders, whereupon (A) the Borrower will, on the last day of the then
existing Interest Period therefor, (1) if such Eurocurrency Rate Advances are
denominated in Dollars, either (x) prepay such Advances or (y) Convert such
Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are
denominated in any Major Currency, either (x) prepay such Advances or (y)
redenominate such Advances into an Equivalent amount of Dollars and Convert such
Advances into Base Rate Advances, and (B) the obligation of the Lenders to make
Eurocurrency Rate Advances in the same currency as such Eurocurrency Rate
Advances
28
shall be suspended until the Agent shall notify each Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit
Borrowing comprised of Eurocurrency Rate Advances, shall fail to select the
duration of the Interest Period for such Eurocurrency Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
and such Advances will (to the extent such Eurocurrency Rate Advances remain
outstanding on such day) automatically, on the last day of the then existing
Interest Period therefor, (i) if such Eurocurrency Rate Advances are denominated
in Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in any Major Currency, be redenominated into an
Equivalent amount of Dollars and be Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
(to the extent such Eurocurrency Rate Advance remains outstanding on such day)
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Major Currency, be redenominated into an Equivalent amount of
Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make Eurocurrency Rate Advances shall be suspended.
(e) If the applicable Telerate Page is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will (to the extent such Eurocurrency Rate Advance remains
outstanding on such day) automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, be prepaid by the applicable
Borrower or be automatically Converted into a Base Rate Advance and (B)
if such Eurocurrency Rate Advance is denominated in any Major Currency,
be prepaid by the applicable Borrower or be automatically redenominated
into an Equivalent amount of 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
29
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances shall be suspended until the Agent shall
notify the Borrowers and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
Optional Prepayments. Each Borrower may, upon notice to the Agent stating the
proposed date and aggregate principal amount of the prepayment, given not later
than 11:00 A.M. (New York City time) on the second Business Day prior to the
date of such proposed prepayment, in the case of Eurocurrency Rate Advances, and
not later than 11:00 A.M. (New York City time) on the day of such proposed
prepayment, in the case of Base Rate Advances, and, if such notice is given,
such Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or the Equivalent thereof in a Major Currency (determined on the
date notice of prepayment is given) or an integral multiple of $1,000,000 or the
Equivalent thereof in a Major Currency (determined on the date notice of
prepayment is given) in excess thereof and (y) in the event of any such
prepayment of a Eurocurrency Rate Advance other than on the last day of the
Interest Period therefor, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c). Each notice of
prepayment by a Designated Subsidiary shall be given to the Administrative Agent
through the Company.
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A)
the aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such date) of the aggregate principal amount of all Advances
denominated in Foreign Currencies then outstanding exceeds 103% of the aggregate
Commitments of the Lenders on such date, the Company and each other Borrower, if
any, shall thereupon promptly prepay the outstanding principal amount of any
Advances owing by such Borrower in an aggregate amount sufficient to reduce such
sum to an amount not to exceed 100% of the aggregate Commitments of the Lenders
on such date, together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date
other than the last day of an Interest Period or at its maturity, any additional
amounts which such Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall give prompt notice
of any prepayment required under this Section 2.09(b)(i) to the Borrowers and
the Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in Dollars
of the aggregate principal amount of all Eurocurrency Rate Advances denominated
in Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
aggregate principal amount of all Competitive Bid Advances denominated in
Foreign Currencies then outstanding, shall exceed 110% of
30
$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 sufficient to reduce such sum
to an amount not to exceed $500,000,000, together with any interest accrued to
the date of such prepayment on the principal amounts prepaid. The Agent shall
give prompt notice of any prepayment required under this Section 2.09(b)(ii) to
the Borrowers and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances (excluding for purposes of this Section 2.10 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.13 shall govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower of such Advances shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to such Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the Agent), the
Company shall pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable
pursuant to this Section 2.10 shall, upon the written request of the Company
delivered to such Lender and the Agent, assign, pursuant to and in accordance
with the provisions of Section 9.07, all of its rights and obligations
31
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 2.10, and any
indemnification for Taxes under Section 2.13) as of the effective date of such
assignment and (iv) if the assignee selected by the Company is not an existing
Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.07(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any Major
Currency or LIBO Rate Advances in Dollars or in any Foreign Currency or to fund
or maintain Eurocurrency Rate Advances in Dollars or in any Major Currency or
LIBO Rate Advances in Dollars or in any Foreign Currency hereunder, (a) each
such Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be,
will automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Foreign Currency, be redenominated into
an Equivalent amount of Dollars and Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the
case may be, and (b) the obligation of the Lenders to make such Eurocurrency
Rate Advances or such LIBO Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under any Notes, except with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in a Foreign Currency, not later than 11:00 A.M. (New York City time) on the day
when due in Dollars to the Agent at the applicable Agent's Account in same day
funds. Each Borrower shall make each payment hereunder and under any Notes with
respect to principal of, interest on, and other amounts relating to Advances
denominated in a Foreign Currency not later than 12:00 Noon (at the Payment
Office for such Foreign Currency) on the day when due in such Foreign Currency
to the Agent in same day funds by deposit of such funds to the
32
applicable Agent's Account. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.05(b), 2.05(c), 2.10, 2.13, 2.16 or 9.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(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. Upon any Assuming Lender becoming a Lender hereunder as a
result of the effectiveness of an extension of the Termination Date pursuant to
Section 2.16, and upon the Agent's receipt of such Lender's Assumption Agreement
and recording the information contained therein in the Register, from and after
the Increase Date or the Extension Date, as the case may be, the Agent shall
make all payments hereunder and under any Notes in respect of the interest
assumed thereby to the Assuming Lender.
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, all computations of interest based on the Eurocurrency
Rate or the Federal Funds Rate shall be made by the Agent on the basis of a year
of 360 days and all computations in respect of Competitive Bid Advances shall be
made by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(d) Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed
33
to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such payment
in full to the Agent, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at (i) the Federal Funds Rate in the
case of Advances denominated in Dollars or (ii) the cost of funds incurred by
the Agent in respect of such amount in the case of Advances denominated in
Foreign Currencies.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
(including the Company in its capacity as a guarantor under Article VII hereof)
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes imposed by the United States 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 by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.13)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto; provided, however, that a Borrower shall not be obligated to
pay any amounts in respect of penalties, interest or expenses pursuant to this
paragraph that are payable solely as a result
34
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,
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.
(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 and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as requested in writing by any Borrower (but only so
long as such Lender remains lawfully able to do so), shall provide the Agent and
each Borrower with two original Internal Revenue Service forms 1001 or 4224, 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 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. If the forms provided by a Lender at
the time such Lender first becomes a party to this Agreement indicates 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
35
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance or the Assumption Agreement, as the case
may be, pursuant to which a Lender becomes a party to this Agreement, such
Lender was entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, 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 with respect to such Lender on such
date. 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 1001 or 4224, that a Lender reasonably considers to be confidential, such
Lender shall give notice thereof to each Borrower and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed
to provide each Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, each Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) If any Borrower is required to pay any additional amount
to any Lender or to the Agent or on behalf of any of them to any taxing
authority pursuant to this Section 2.13, such Lender shall, upon the written
request of the Company delivered to such Lender and the Agent, assign, pursuant
to and in accordance with the provisions of Section 9.07, all of its rights and
obligations under this Agreement and under the Notes to an Eligible Assignee
selected by the Company; provided, however, that (i) no Default shall have
occurred and be continuing at the time of such request and at the time of such
assignment; (ii) the assignee shall have paid to the assigning Lender the
aggregate principal amount of, and any interest accrued and unpaid to the date
of such assignment on, the Note or Notes of such Lender; (iii) the Company shall
have paid to the assigning Lender any and all facility fees and other fees
payable to such Lender and all other accrued and unpaid amounts owing to such
Lender under any provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section 2.10, and any
indemnification for Taxes under this Section 2.13) as of the effective date of
such assignment; and (iv) if the assignee selected by the Company is not an
existing Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.07(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
36
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Revolving Credit Advances owing
to it (other than pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16
or 9.04(c)) in excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Revolving
Credit Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
for general corporate purposes of such Borrower and its Subsidiaries, including,
without limitation, backstop of commercial paper.
SECTION 2.16. Extension of Termination Date. (a) At least 45
(but no earlier than 60) days prior to the Termination Date then in effect and
provided all representations and warranties are true and correct in all material
respects and no Event of Default has occurred and is continuing, the Company
may, at its option, by written notice to the Agent, request that the Lenders
extend the Termination Date for an additional 364 days from the Termination Date
then in effect. Each Lender, in its sole discretion, shall consent or not
consent to such extension and shall notify the Agent of its consent or
nonconsent to such extension within 20 Business Days of notice of such request
from the Agent. If all of the Lenders consent in writing, the then applicable
Termination Date shall, effective as at such Termination Date (the "Extension
Date"), be extended for a period of 364 days from such Extension Date.
(b) If not all of the Lenders consent, pursuant to subsection
(a) of this Section 2.16, to an extension of the Termination Date then in effect
(the Lenders so consenting in writing being the "Consenting Lenders", and any
Lender not so consenting being a "Non-Consenting Lender"), the Company may:
(i) arrange for one or more Consenting Lenders or other
Eligible Assignees as Assuming Lenders to assume, effective on the
Extension Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Lender under this Agreement thereafter
37
arising, and effective on such Extension Date, each such Consenting
Lender or such Assuming Lender will be substituted for such
Non-Consenting Lender under this Agreement; provided, however, that the
amount of the Commitment of any such Assuming Lender as a result of
such substitution shall in no event be less than $10,000,000; provided
further that (i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender the aggregate principal amount
of, and any interest accrued and unpaid to the date of the assignment
on, the Advances of such Non-Consenting Lender; (ii) the Company shall
have paid to such Non-Consenting Lender any and all facility fees and
other fees payable to such Non-Consenting Lender and all other accrued
and unpaid amounts owing to such Non-Consenting Lender under any
provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section 2.10,
and any indemnification for Taxes under this Section 2.13) as of the
effective date of such assignment; and (iii) with respect to any such
Assuming Lender, such Assuming Lender or the Company shall have paid
the applicable processing and recordation fee required under Section
9.07(a) for such assignment; provided further that such Non-Consenting
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations
under Section 8.05, shall survive such substitution as to matters
occurring prior to the date of substitution; provided further that, on
or prior to the tenth day prior to the Extension Date, (x) any such
Assuming Lender shall have delivered to the Company and the Agent an
Assumption Agreement in substantially the form of Exhibit D hereto,
duly executed by such Assuming Lender, such Non-Consenting Lender and
the Company, (y) any such Consenting Bank shall have delivered
confirmation in writing satisfactory to the Agent as to its increased
Commitment and (z) each Non-Consenting Lender being replaced pursuant
to this clause (i) shall have delivered to the Agent any Revolving
Credit Note or Notes held by such Non-Consenting Lender; and provided
further that, if requested by any Assuming Lender, each Borrower, at
its own expense, shall have executed and delivered to the Agent no
later than 10:00 A.M. (New York City time) on the Extension Date,
Revolving Credit Notes payable to the order of each such Assuming
Lender, if any, dated as of the Extension Date and substantially in the
form of Exhibit A-1 hereto; or
(ii) subject to the giving of notice to such Non-Consenting
Lender at least four days prior to the Extension Date, pay, prepay or
cause to be prepaid, on and effective as of the Extension Date, all
principal of, and interest accrued to the date of such payment on,
Advances and all other amounts owing to such Non-Consenting Lender
hereunder (including, but not limited to, any increased costs or other
additional amounts owing under Section 2.10 and any indemnification for
Taxes under Section 2.13) and terminate in whole any Non-Consenting
Lender's Commitment, notwithstanding the provisions of Section 2.05;
and, upon such payment or prepayment, the obligations of such
Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged; provided, however, that such Non-Consenting
Lender's rights under Sections 2.10, 2.13 and 9.04, and its
38
obligations under Section 8.05 shall survive such release and discharge
as to matters occurring prior to the Extension Date.
(c) In the event that, on or prior to the then applicable
Extension Date, all NonConsenting Lenders shall have been superseded by
Consenting Lenders or Assuming Lenders or shall have had their Commitments
terminated pursuant to subsection (b)(i) or (b)(ii) above, the Termination Date
then in effect shall be extended for the additional one-year period as described
in subsection (a) above, each Non-Consenting Lender shall have no further
Commitment hereunder, and each Assuming Lender, if any, shall thereafter be
substituted as a party to this Agreement and be a Lender for the purposes of
this Agreement, without any further acknowledgment by or the consent of the
Lenders. The Agent shall thereupon promptly deliver the new Revolving Credit
Notes to the respective Assuming Lenders requesting such Notes and record in the
Register the relevant information with respect to each Consenting Lender and
each such Assuming Lender.
(d) In the event that (x) as to a Non-Consenting Lender,
neither procedure contemplated by subsection (b)(i) or (b)(ii) above is
implemented in a timely basis or (y) the Company shall, by written notice to the
Agent at least four days prior to the Extension Date, withdraw its request for
the extension of the Termination Date then in effect, such request by the
Company shall be deemed not to have been made, all actions theretofore taken
under subsection (b)(i) or (b)(ii) above shall be deemed to be of no effect, the
Agent shall return any Revolving Credit Notes received from any Non-Consenting
Lender to such Non-Consenting Lender and all the rights and obligations of the
parties shall continue as if no such request had been made.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon request of any Lender to such Borrower (with a copy of such notice to the
Agent) that such Lender receive a Revolving Credit Note to evidence (whether for
purposes of pledge, enforcement or otherwise) the Revolving Credit Advances
owing to, or to be made by, such Lender, such Borrower shall promptly execute
and deliver to such Lender a Revolving Credit Note payable to the order of such
Lender in a principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and
39
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, 1998.
(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.
(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:
40
(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 J. Edward Smith,
Assistant General Counsel of the Company, substantially in the
form of Exhibit G hereto and as to such other matters as any
Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, substantially in the form of Exhibit I
hereto.
(vi) Such other approvals, opinions or documents as
any Lender, through the Agent, may reasonably request.
(f) The Company shall have terminated the commitments, and
paid in full all Debt, interest, fees and other amounts outstanding,
under (i) the $750,000,000 Credit Agreement dated as of June 30, 1995
(the "$750,000,000 Credit Agreement") among the Company, the lenders
and arrangers parties thereto and Citibank, as administrative agent,
(ii) the $900,000,000 364 Day Backstop Credit Agreement dated as of
October 9, 1998 (the "Backstop Credit Agreement") among the Borrower,
as borrower, the lenders and arrangers parties thereto and Citibank, as
administrative agent, and (iii) the $1,325,000,000 Credit Agreement
dated as of April 15, 1997 (the "Honeywell Credit Agreement") among
Honeywell Inc., as borrower, Morgan Guaranty Trust Company of New York,
as documentation agent, Citicorp USA, Inc., as syndication agent, Chase
Securities Inc. and J.P.
41
Morgan Securities Inc., as co-arrangers, and The Chase Manhattan Bank,
as administrative agent, and each of the Lenders that is a party to
each such credit facility hereby waives, upon execution of this
Agreement, the three Business Days' notice required by Section 2.05 of
the $750,000,000 Credit Agreement, Section 2.05 of the Backstop Credit
Agreement and Section 2.12 of the Honeywell Credit Agreement,
respectively, relating to the termination of commitments thereunder.
(g) All of the conditions precedent to the Merger Agreement
(or as amended in a manner satisfactory to the Lenders) shall have been
satisfied, including, without limitation, expiration or termination of
the applicable waiting period under the Hart-Scott-Rodino Act and
receipt of all applicable approvals, and the merger contemplated
thereby shall have been effected.
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 all outstanding
commitments of lenders (and paid in full all outstanding debt under the
related credit agreements) which backstop commercial paper issuance,
other than commitments made by parties which are not Lenders hereunder.
(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 9.08 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
42
corporate action and governmental approvals, if any, with respect to
this Agreement and such Notes.
(c) A certificate of the Secretary or an Assistant Secretary
of such Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
Notes of such Borrower and the other documents to be delivered
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control
approvals) and licenses required under applicable laws and regulations
necessary for such Borrower to execute and deliver this Agreement and
the Notes and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit E hereto.
(f) Evidence of the Process Agent's acceptance of its
appointment pursuant to Section 9.13(a) as the agent of such Borrower,
substantially in the form of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated
Subsidiary, dated the date of such initial Advance, substantially in
the form of Exhibit H hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.04. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Borrower requesting such Revolving Credit Borrowing of
the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties of the Company
contained in Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
and (n) thereof) are correct on and as of the date of such Revolving
Credit Borrowing, before and after giving effect to such Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, and
43
additionally, if such Revolving Credit Borrowing shall have been
requested by a Designated Subsidiary, the representations and
warranties of such Designated Subsidiary contained in its Designation
Letter are correct on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.05. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender and substantially in the form of Exhibit A-2
hereto for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties of the Company
contained in Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
and (n) thereof) are correct on and as of the date of such Competitive
Bid Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and, if such Competitive Bid Borrowing
shall have been requested by a 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,
44
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading,
and (iv) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.06. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of
this Agreement and the Notes of the Company, and the consummation of
the transactions contemplated hereby, are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not cause or constitute a violation of any
provision of law or regulation or any provision of the Certificate of
Incorporation or By-Laws of the Company or result in the breach of, or
constitute a default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any of the properties,
revenues, or assets of the Company pursuant to, any indenture or other
agreement or
45
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, 1998, 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, 1999, and the related
Consolidated statements of income and cash flows of the Company and its
Consolidated Subsidiaries for the six 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, 1999, and said statements of income and cash flows for the six
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. Since December 31, 1998,
there has been no Material Adverse Change.
(f) There is no action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
pending or to the knowledge of the Company
46
Threatened affecting the Company or any of its Subsidiaries before any
court, governmental agency or arbitrator that (i) is reasonably likely
to have a Material Adverse Effect (other than the Disclosed
Litigation), or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there has been no adverse change
in the status, or financial effect on the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(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 1998 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.
47
(l) Neither the Company nor any of its ERISA Affiliates has
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA. No such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA, in a reorganization or termination
which might reasonably be expected to result in a liability of the
Company in an amount in excess of $5,000,000.
(m) The Company is not, and immediately after the application
by the Company of the proceeds of each Loan will not be, (a) an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or (b) a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(n) To the best of the Company's knowledge, the operations and
properties of the Company and its Subsidiaries taken as a whole comply
in all material respects with all Environmental Laws, all necessary
Environmental Permits have been applied for or have been obtained and
are in effect for the operations and properties of the Company and its
Subsidiaries and the Company and its Subsidiaries are in compliance in
all 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.
(i) The Company has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the risk that computer
applications used by the Company or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and
perform properly date sensitive functions involving certain dates prior
to and any date after December 31, 1999 (the "Year 2000 Problem"), (ii)
developed a plan and timetable for addressing the Year 2000 Problem on
a timely basis and (iii) to date, implemented that plan in accordance
with such timetable. Based on the foregoing, the Company believes that
all computer applications (including those of its suppliers, vendors
and customers) that are material to its or any of its Subsidiaries'
business and operations are reasonably expected on a timely basis to be
able to perform properly date-sensitive functions for all dates before,
on and after January 1, 2000, except to the extent that a failure to do
so could not reasonably be expected to have a Material Adverse Effect.
48
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, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Company and any Designated Subsidiary, and to discuss the affairs,
finances and accounts of the Company and any Designated Subsidiary with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each Designated
Subsidiary to keep, proper books of record and account, in which full
and correct entries shall be made of all
49
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
51
Withdrawal Liability in an aggregate amount in excess of
$25,000,000 within any one calendar year and (B) the amount of
liability incurred, or that may be incurred, by the Company or
any of its ERISA Affiliates in connection with any event
described in such subclause (x) or (y);
(xi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any Designated
Subsidiary of the type described in Section 4.01(f); and
(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:
52
(a) Liens, Etc. Issue, assume or guarantee, or permit any of
its Subsidiaries owning Restricted Property to issue, assume or
guarantee, any Debt secured by Liens on or with respect to any
Restricted Property without effectively providing that its obligations
to the Lenders under this Agreement and any of the Notes shall be
secured equally and ratably with such Debt so long as such Debt shall
be so secured, except that the foregoing shall not apply to:
(i) Liens affecting property of the Company or any of
its Subsidiaries existing on the Effective Date in effect as
of the date hereof or of any corporation existing at the time
it becomes a Subsidiary of the Company or at the time it is
merged into or consolidated with the Company or a Subsidiary
of the Company;
(ii) Liens on property of the Company or its
Subsidiaries existing at the time of acquisition thereof or
incurred to secure the payment of all or part of 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
53
which secured the Lien extended, renewed or replaced (plus
improvements on such property);
provided, however, that, the Company and any one or more Subsidiaries
owning Restricted Property may issue, assume or guarantee Debt secured
by Liens which would otherwise be subject to the foregoing restrictions
in an aggregate principal amount which, together with the aggregate
outstanding principal amount of all other Debt of the Company and its
Subsidiaries owning Restricted Property that would otherwise be subject
to the foregoing restrictions (not including Debt permitted to be
secured under clause (i) through (vi) above) and the aggregate value of
the Sale and Leaseback Transactions in existence at such time, does not
at any one time exceed 10% of the Net Tangible Assets of the Company
and its Consolidated Subsidiaries; and provided further that the
following type of transaction, among others, shall not be deemed to
create Debt secured by Liens: Liens required by any contract or statute
in order to permit the Company or any of its Subsidiaries to perform
any contract or subcontract made by it with or at the request of the
United States of America, any foreign country or any department, agency
or instrumentality of any of the foregoing jurisdictions.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or 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
54
(b) Any representation or warranty made (or deemed made) by
any Borrower (or any of its officers) in connection with this Agreement
or by any Designated Subsidiary in the Designation Letter pursuant to
which such Designated Subsidiary became a Borrower hereunder shall
prove to have been incorrect in any material respect when made (or
deemed made); or
(c) The Company shall repudiate its obligations under, or
shall default in the due performance or observance of, any term,
covenant or agreement contained in Article VII of this Agreement; or
(d) (i) The Company shall fail to perform or observe any other
term, covenant or agreement contained in Section 5.02(a) and such
failure shall remain unremedied for a period of 30 days after any
Lender shall have given notice thereof to the Company (through the
Agent), or (ii) the Company or any other Borrower shall fail to perform
or to observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed and such failure
shall remain unremedied for a period of 30 days after any Lender shall
have given notice thereof to the relevant Borrower or, in the case of
the Company, any of the principal financial officer, the principal
accounting officer, the Vice-President and Treasurer or an Assistant
Treasurer of the Company, and in the case of any other Borrower, a
responsible officer of such Borrower, first has knowledge of such
failure; or
(e) (i) The Company or any of its Consolidated or Designated
Subsidiaries shall fail to pay any principal of or premium or interest
on any Debt (other than Debt owed to the Company or its Subsidiaries or
Affiliates) that is outstanding in a principal amount of at least
$150,000,000 in the aggregate (but excluding Debt outstanding 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
55
Consolidated Subsidiaries) which the Company has guaranteed and (y)
Debt of Persons (other than the Company or one of its Consolidated
Subsidiaries) the payment of which is secured by a Lien on property of
the Company or such Subsidiary, such Debt shall be deemed to have not
been paid when due or to have been declared to be due and payable only
when the Company or such Subsidiary, as the case may be, shall have
failed to pay when due any amount which it shall be obligated to pay
with respect to such Debt; provided further, however, that any event or
occurrence described in this subsection (e) shall not be an Event of
Default if (A) such event or occurrence relates to the Debt of any
Subsidiary of the Company located in China, India, the Commonwealth of
Independent States or Turkey (collectively, the "Exempt Countries"),
(B) such Debt is not guaranteed or supported in any legally enforceable
manner by any Borrower or by any Subsidiary or Affiliate of the Company
located outside the Exempt Countries, (C) such event or occurrence is
due to the direct or indirect action of any government entity or agency
in any Exempt Country and (D) as of the last day of the calendar
quarter immediately preceding such event or occurrence, the book value
of the assets of such Subsidiary does not exceed $150,000,000 and the
aggregate book value of the assets of all Subsidiaries of the Company
located in Exempt Countries the Debt of which would cause an Event of
Default to occur but for the effect of this proviso does not exceed
$500,000,000; or
(f) The Company or any of its Designated or Consolidated
Subsidiaries shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Company or any such Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
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
56
or occurrence, the book value of the assets of such Subsidiary does not
exceed $150,000,000 and the aggregate book value of the assets of all
Subsidiaries of the Company located in Exempt Countries with respect to
which the happening of the events or occurrences described in this
subsection (f) would cause an Event of Default to occur but for the
effect of this proviso does not exceed $500,000,000; or
(g) Any judgment or order for the payment of money in excess
of $150,000,000 shall be rendered against the Company or any of its
Subsidiaries and enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and there shall be any period
of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order
shall not be an Event of Default under this Section 6.01(g) if (A) such
judgment or order is rendered against any Subsidiary of the Company
located in an Exempt Country, (B) the Debt of such Subsidiary is not
guaranteed or supported in any legally enforceable manner by any
Borrower or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such judgment or order is due to the
direct or indirect action of any government entity or agency in any
Exempt Country and (D) as of the last day of the calendar quarter
immediately preceding the tenth consecutive day of the stay period
referred to above, the book value of the assets of such Subsidiary does
not exceed $150,000,000 and the aggregate book value of the assets of
all Subsidiaries of the Company located in Exempt Countries the
judgments and orders against which would cause an Event of Default to
occur but for the effect of this proviso does not exceed $500,000,000;
or
(h) Any non-monetary judgment or order shall be rendered
against the Company or any of its Subsidiaries that is reasonably
likely to have a Material Adverse Effect, and enforcement proceedings
shall have been commenced by any Person upon such judgment or order and
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(i) Any license, consent, authorization or approval (including
exchange control approvals) now or hereafter necessary to enable the
Company or any Designated Subsidiary to comply with its obligations
herein or under any Notes of such Borrower shall be modified, revoked,
withdrawn, withheld or suspended; or
(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
57
their ERISA Affiliates related to such ERISA Event) exceeds
$150,000,000; or (ii) any Borrower or any of its ERISA Affiliates shall
be in default, as defined in Section 4219(c)(5) of ERISA, with respect
to any payment of Withdrawal Liability and the sum of the outstanding
balance of such Withdrawal Liability and the outstanding balance of any
other Withdrawal Liability that any Borrower or any of its ERISA
Affiliates has incurred exceeds 6% of Net Tangible Assets of the
Company and its Consolidated Subsidiaries; or (iii) any Borrower or any
of its ERISA Affiliates shall have been notified by the sponsor of a
Multiemployer Plan of such Borrower or any of its ERISA Affiliates that
such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of the
Borrowers and their ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding $150,000,000; or
then, and (i) in any such event (except as provided in clause (ii) below), the
Agent (A) shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Company, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and (B)
shall at the request, or may with the consent, of the Majority Lenders, by
notice to the Company, declare the Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Advances, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers
and (ii) in the case of the occurrence of any Event of Default described in
clause (i) or (ii) of Section 6.01(a), the Agent shall, at the request, or may
with the consent, of the Lenders which have made or assumed under this Agreement
at least 66-2/3% of the aggregate principal amount (based in respect of
Competitive Bid Advances denominated in Foreign Currencies on the Equivalent in
Dollars on the date of such request) of Competitive Bid Advances then
outstanding and to whom such Advances are owed, by notice to the Company,
declare the full unpaid principal of and accrued interest on all Competitive Bid
Advances hereunder and all other obligations of the Borrowers hereunder to be
immediately due and payable, whereupon such Advances and such obligations shall
be immediately due and payable, without presentment, demand, protest or other
further notice of any kind, all of which are hereby expressly waived by the
Borrowers; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Borrower under the United States
Bankruptcy Code of 1978, as amended, (x) the obligation of each Lender to make
Advances shall automatically be terminated and (y) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrowers.
58
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to induce each Lender
to make Advances to the Designated Subsidiaries and to induce the Agent to act
hereunder, the Company hereby unconditionally and irrevocably guarantees to each
Lender and the Agent that:
(a) the principal of and interest on each Advance to each
Designated Subsidiary shall be promptly paid in full when due (whether
at stated maturity, by acceleration or otherwise) in accordance with
the terms hereof, and, in case of any extension of time of payment, in
whole or in part, of such Advance, that all such sums shall be promptly
paid when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms of such extension; and
(b) all other amounts payable hereunder by any Designated
Subsidiary to any Lender or the Agent or the Sub-Agent, as the case may
be, shall be promptly paid in full when due in accordance with the
terms hereof (the obligations of the Designated Subsidiaries under
these subsections (a) and (b) of this Section 7.01 being the
"Obligations").
In addition, the Company hereby unconditionally and irrevocably agrees that upon
default in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal of, or interest on, any Advance to any Designated
Subsidiary or such other amounts payable by any Designated Subsidiary to any
Lender or the Agent, the Company will forthwith pay the same, without further
notice or demand.
SECTION 7.02. Guarantee Absolute. The Company guarantees that
the Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Agent with respect thereto. The liability of the Company under this
guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement
(including, without limitation, any extension of the Termination Date
pursuant to Section 2.16);
59
(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.
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.
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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 Assuming Lender and each assignee Lender pursuant to Section
9.07) and the Agent and their respective successors, transferees and assigns and
(d) shall be reinstated if at any time any payment to a Lender or the Agent
hereunder is required to be restored by such Lender or the Agent. Without
limiting the generality of the foregoing clause (c), each Lender may assign or
otherwise transfer its interest in any Advance to any other person or entity,
and such other person or entity shall thereupon become vested with all the
rights in respect thereof granted to such Lender herein or otherwise.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
61
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 9.07; (b) may consult with legal counsel
(including counsel for the Company), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of any Borrower or to inspect the property (including the
books and records) of any Borrower; (e) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (f) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs,
62
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Company and may be
removed at any time with or without cause by the Majority Lenders. The Company
may at any time, by notice to the Agent, propose a successor Agent (which shall
meet the criteria described below) specified in such notice and request that the
Lenders be notified thereof by the Agent with a view to their removal of the
Agent and their appointment of such successor Agent; the Agent agrees to forward
any such notice to the Lenders promptly upon its receipt by the Agent. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated
under this Agreement to carry out duties of the Agent. The Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by the
Sub-Agent, and each of the Borrowers and the Lenders agrees that the Sub-Agent
shall be entitled to exercise each of the rights and shall be entitled to each
of the benefits of the Agent under this Agreement as relate to the performance
of its obligations hereunder.
63
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations, (b) reduce the principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (c)
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder (other
than as permitted by Section 2.16 to the extent any Lender consents thereunder),
(d) release the Company from any of its obligations under Article VII, (e)
require the duration of an Interest Period to be nine months if such period is
not available to all Lenders or (f) amend this section 9.01; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. 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 101 Columbia Road,
Morristown, New Jersey 07962-1219, 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 Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender; and if to the Agent, at its address at Two Penns
Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department,
with a copy to 399 Park Avenue, New York, New York 10043, Attention: Carolyn
Sheridan; 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. 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.
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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 costs and expenses of the Agent in connection with the
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (i)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (ii) the reasonable fees and expenses of counsel for the
Agent with respect thereto. The Company further agrees to pay on demand all
costs and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) Each Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent any such claim, damage, loss,
liability or expense has resulted from such Indemnified Party's gross negligence
or willful misconduct. The Company also agrees not to assert any claim against
any Indemnified Party on any theory of liability for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.03(d), 2.05(b), 2.09(a) or (b), 2.11 or 2.16, acceleration of the maturity of
the
65
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 2.10, 2.13 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes
and the termination in whole of any Commitment hereunder.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Borrower against any and
all of the obligations of such Borrower now or hereafter existing under this
Agreement and the Note of such Borrower held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
relevant Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, the Agent and each Lender and their respective successors and assigns,
except that no Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may at any time, with notice to the Company prior to making any proposal to any
potential assignee and with the consent of the Company, which consent shall not
be unreasonably withheld (and shall at any time, if requested to do so by the
Company pursuant to Section 2.05(b), 2.10 or 2.13) assign to one or
66
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) the Company's consent shall not be
required (A) in the case of an assignment to an Affiliate of such Lender,
provided that notice thereof shall have been given to the Company and the Agent,
or (B) in the case of an assignment of the type described in subsection (g)
below; (ii) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than any
right to make Competitive Bid Advances, Competitive Bid Advances owing to it and
Competitive Bid Notes); (iii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof; (iv) each such assignment
shall be to an Eligible Assignee, (v) each such assignment made as a result of a
demand by the Company pursuant to this Section 9.07(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 9.07(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 obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto, provided, however, that such assigning
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05, shall survive such assignment as to matters occurring prior to the
effective date of such assignment).
67
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other instrument or document furnished pursuant hereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by such Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company and to each other
Borrower.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company, each other Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Company, any other Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
68
(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
9.07, 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 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such designation
by the Company and the identity of the respective Subsidiary.
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 9.09. 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 9.07(f) or (viii) to any Affiliate of the Agent or any
Lender or to such Affiliate's officers, directors, employees, agents and
advisors, provided that, prior to any such disclosure, such Affiliate or such
Affiliate's officers, directors, employees, agents or advisors, as the case may
be, shall agree to preserve the confidentiality of any confidential information
relating to the Company received by it; a determination by a Lender or the Agent
as to the application of the circumstances described in the foregoing clauses
(i)-(viii) being conclusive if made in good faith; and each of the Lenders and
the Agent agrees that it will follow procedures which are intended to put any
transferee of such confidential information on notice that such information is
confidential.
SECTION 9.10. Mitigation of Yield Protection. Each Lender
hereby agrees that, commencing as promptly as practicable after it becomes aware
of the occurrence of any event giving rise to the operation of Section 2.10(a),
2.11 or 2.13 with respect to such Lender, such Lender will give notice thereof
through the Agent to the respective Borrower. A Borrower may at any time, by
notice through the Agent to any Lender, request that such Lender change its
Applicable Lending Office as to any Advance or Type of Advance or that it
specify a new Applicable Lending Office with respect to its Commitment and any
Advance held by it or that it rebook any such Advance with a view to avoiding or
mitigating the consequences of an occurrence such as described in the preceding
sentence, and such Lender will use reasonable efforts to comply with such
request unless, in the opinion of such Lender, such change or specification or
rebooking is inadvisable or might have an adverse effect, economic or otherwise,
upon it, including its reputation. In addition, each Lender
70
agrees that, except for changes or specifications or rebookings required by law
or effected pursuant to the preceding sentence, if the result of any change or
change of specification of Applicable Lending Office or rebooking would, but for
this sentence, be to impose additional costs or requirements upon the respective
Borrower pursuant to Section 2.10(a), Section 2.11 or Section 2.13 (which would
not be imposed absent such change or change of specification or rebooking) by
reason of legal or regulatory requirements in effect at the time thereof and of
which such Lender is aware at such time, then such costs or requirements shall
not be imposed upon such Borrower but shall be borne by such Lender. All
expenses incurred by any Bank in changing an Applicable Lending Office or
specifying another Applicable Lending Office of such Lender or rebooking any
Advance in response to a request from a Borrower shall be paid by such Borrower.
Nothing in this Section 9.10 (including, without limitation, any failure by a
Lender to give any notice contemplated in the first sentence hereof) shall
limit, reduce or postpone any obligations of the respective Borrower under
Section 2.10(a), Section 2.11 or Section 2.13, including any obligations payable
in respect of any period prior to the date of any change or specification of a
new Applicable Lending Office or any rebooking of any Advance.
SECTION 9.11. 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 9.12. 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 9.13. 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 1633 Broadway, New York, New York 10019
(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,
71
to such Borrower at its address specified pursuant to Section 9.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to serve legal process in any
other manner permitted by law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction. To the extent
that each Designated Subsidiary has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, each Designated Subsidiary
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.14. 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 9.15. 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 9.16. 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
72
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.
73
SECTION 9.17. 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/ James V. Gelly
-------------------------------
Name: James V. Gelly
Title: Vice President and Treasurer
CITIBANK, N.A., as Agent
By: /s/ Carolyn A. Kee
-------------------------------
Name: Carolyn A. Kee
Title: Vice President
COMMITMENT ARRANGER AND ADMINISTRATIVE AGENT
- ---------- ---------------------------------
$213,333,333.33 CITIBANK, N.A.
By: /s/ Carolyn A. Kee
-------------------------------
Name: Carolyn A. Kee
Title: Vice President
74
CO-SYNDICATION AGENTS
---------------------
$160,000,000.00 BANK OF AMERICA, N.A.
By: /s/ John W. Pocalyko
-------------------------------
Name: John W. Pocalyko
Title: Managing Director
$160,000,000.00 THE CHASE MANHATTAN BANK
By: /s/ John C. Riordan
-------------------------------
Name: John C. Riordan
Title: Vice President
$160,000,000.00 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Jean M. Hannigan
-------------------------------
Name: Jean M. Hannigan
Title: Vice President
By: /s/ Iain Stewart
-------------------------------
Name: Iain Stewart
Title: Vice President
AGENT
$160,000,000.00 BARCLAYS BANK PLC
By: /s/ Paul Kavanagh
-------------------------------
Name: Paul Kavanagh
Title: Director
75
SENIOR MANAGING AGENTS
----------------------
$100,000,000.00 BANCA NAZIONALE DE LAVORO S.p.A.-NEW
YORK BRANCH
By: /s/ Miguel J. Medida
-------------------------------
Name: Miguel J. Medida
Title: Vice President
By: /s/ Leonardo Valentini
-------------------------------
Name: Leonardo Valentini
Title: First Vice President
$100,000,000.00 THE BANK OF NEW YORK
By: /s/ Ernest Fung
-------------------------------
Name: Ernest Fung
Title: Vice President
$100,000,000.00 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ W. A. DiNicola
-------------------------------
Name: W. A. DiNicola
Title: Vice President
$100,000,000.00 BANK ONE, NA
By: /s/ Stephen E. McDonald
-------------------------------
Name: Stephen E. McDonald
Title: Senior Vice President
$100,000,000.00 HSBC BANK USA
By: /s/ Rochelle Forster
-------------------------------
Name: Rochelle Forster
Title: Vice President
76
$100,000,000.00 MELLON BANK, N.A.
By: /s/ Donald G. Cassidy
-------------------------------
Name: Donald G. Cassidy
Title: First Vice President
$100,000,000.00 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Dennis Wilczek
-------------------------------
Name: Dennis Wilczek
Title: Associate
CO-AGENTS
---------
$43,333,333.33 ABN AMRO BANK N.V.
By: /s/ Peter L. Eaton
-------------------------------
Name: Peter L. Eaton
Title: Group Vice President
By: /s/ John P. Richardson
-------------------------------
Name: John P. Richardson
Title: Vice President
$43,333,333.33 BANCA DI ROMA
By: /s/ Steven Paley
-------------------------------
Name: Steven Paley
Title: Vice President
By: /s/ Alessandro Paoli
-------------------------------
Name: Alessandro Paoli
Title: Asst. Treasurer
77
$43,333,333.33 BANQUE NATIONALE DE PARIS
By: /s/ Richard L. Sted
-------------------------------
Name: Richard L. Sted
Title: Senior Vice President
By: /s/ Thomas George
-------------------------------
Name: Thomas George
Title: Vice President,
Corp. Banking Division
$43,333,333.33 NORTHERN TRUST COMPANY
By: /s/ Eric Strickland
-------------------------------
Name: Eric Strickland
Title: Vice President
$43,333,333.33 THE SUMITOMO BANK, LIMITED
By: /s/ P.R.C. Knight
-------------------------------
Name: P.R.C. Knight
Title: Sr. Vice President
$43,333,333.33 WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Molly S. Van Metre
-------------------------------
Name: Molly S. Van Metre
Title: Vice President
78
LENDERS
-------
$26,666,666.6 BANCO BILBAO VIZCAYA
By: /s/ John Martini
-------------------------------
Name: John Martini
Title: Vice President, Corporate Banking
By: /s/ Alejandro Lorca
-------------------------------
Name: Alejandro Lorca
Title: Vice President, Corporate Banking
$26,666,666.67 BANK OF MONTREAL
By: /s/ Brian L. Banke
-------------------------------
Name: Brian L. Banke
Title: Director
$26,666,666.67 FUJI BANK
By: /s/ Raymond Ventura
-------------------------------
Name: Raymond Venture
Title: Vice President & Manager
$26,666,666.67 THE INDUSTRIAL BANK OF JAPAN
By: /s/ J. Kenneth Biegen
-------------------------------
Name: J. Kenneth Biegen
Title: Senior Vice President
$26,666,666.67 ROYAL BANK OF CANADA
By: /s/ Lynne M. Letterini
-------------------------------
Name: Lynne M. Letterini
Title: Manager
79
$26,666,666.67 STANDARD CHARTERED
By: /s/ Jacob H. Yahiayan
-------------------------------
Name: Jacob H. Yahiayan
Title: Vice President
By: /s/ Lalita Vadhri
-------------------------------
Name: Lalita Vadhri
Title: Assistant Vice President
$26,666,666.67 UNICREDITO ITALIANO
By: /s/ Christopher J. Eldin
-------------------------------
Name: Christopher J. Eldin
Title: First Vice President &
Deputy Manager
By: /s/ Saiyed A. Abbas
-------------------------------
Name: Saiyed A. Abbas
Title: Vice President
$2,000,000,000 TOTAL OF COMMITMENTS