EXHIBIT 10.11
AMENDMENT NO. 1 TO THE
CREDIT AGREEMENT
Dated as of November 27, 2002
AMENDMENT NO. 1 TO THE FIVE YEAR CREDIT AGREEMENT among HONEYWELL
INTERNATIONAL INC., a Delaware corporation (the "Company"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders") and Citibank, N.A., as agent
(the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders and the Agent have entered into a Five
Year Credit Agreement dated as of December 2, 1999 (the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement.
(2) The Company and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement . The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 4, hereby amended as follows:
(a) The definition of "Base Rate" in Section 1.01 is amended by adding
at the end of clause (b) the word "and", by inserting a period after the phrase
"Federal Funds Rate" in clause (c), deleting the word "and" at the end of clause
(c) and deleting clause (d).
(b) The parenthetical clause in the definition of "Business Day" in
Section 1.01 is amended in full to read "(or, in the case of an Advance
denominated in Euros, on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open)".
(c) The definition of "Change of Control" in Section 1.01 is amended
by deleting from clause (ii) the phrase "the effective time of the merger of
Honeywell Inc. and a wholly owned Subsidiary of the Company as contemplated by
the Merger Agreement" and substituting therefor the phrase "the Effective Date".
(d) Clause (a)(ii) of the definition of "ERISA Event" in Section 1.01
is amended in full to read as follows:
(ii) the requirements of subsection (1) of Section 4043(b) of
ERISA are met with respect to 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;
(e) The following new definitions are added to Section 1.01
immediately after the defined term "Escrow":
"EURIBO Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, the rate
per annum appearing on Page 248 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent
from time to time for purposes of providing quotations of interest rates
applicable to deposits in Euros by reference to the Banking Federation of
the European Union Settlement Rates for deposits in Euros) at approximately
10:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Euros with a maturity
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Euros are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Borrowing to be outstanding during such Interest
Period andfor a period equal to such Interest Period (subject, however, to
the provisions of Section 2.07).
"Euro" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European Community,
as such treaty may be amended from time to time and as referred to in the
EMU legislation.
(f) The definition of "Eurocurrency Rate" in Section 1.01 is amended
by (i) inserting immediately after the phrase "by dividing (a)" the phrase "(i)
in the case of any Advance denominated in Dollars or any Major Currency other
than Euros," and (ii) by inserting immediately before the phrase " by (b) a
percentage equal to 100%" the phrase " or (ii) in the case of any Advance
denominated in Euros, the EURIBO Rate".
(g) The definition of "LIBO Rate" in Section 1.01 is amended by (i)
inserting immediately after the phrase "by dividing (a)" the phrase "(i) in the
case of any Advance denominated in Dollars or any Foreign Currency other than
Euros," and (ii) by inserting immediately before the phrase " by (b) a
percentage equal to 100%" the phrase " or (ii) in the case of any Advance
denominated in Euros, the EURIBO Rate".
(h) The definition of "Major Currencies" in Section 1.01 is amended in
full to read as follows:
"Major Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of Japan and Euros.
(i) The definition of "Merger Agreement" in Section 1.01 is deleted in
full.
(j) The definition of "Reference Banks" in Section 1.01 is amended in
full to read as follows:
"Reference Banks" means Citibank, Bank of America, N.A., JPMorgan
Chase Bank and Deutsche Bank AG New York Branch.
(k) Section 2.13(e) is amended in by replacing the phrase "1001 or
4224" with the phrase "W-8ECI or W-8BEN" in both places where such phrase
appears.
(l) Section 4.01(o) is deleted in full.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the Agent
shall have received counterparts of this Amendment executed by the Company and
the Required Lenders or, as to any of the Lenders, advice satisfactory to the
Agent that such Lender has executed this Amendment. This Amendment is subject to
the provisions of Section 8.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Company . The Company
represents and warrants as follows:
(a) Each of the representations and warranties set forth in
Section 4.01 of the Credit Agreement (except the representations set forth
in the last sentence of subsection (e) thereof and in subsections (f),
(h)-(l) and (n) thereof), as amended hereby, are true and correct as of the
date hereof.
(b) The execution, delivery and performance by the Company of
this Amendment and the Credit Agreement and the Notes, as amended hereby,
to which it is or is to be a party are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do
not and will not cause or constitute a violation of any provision of law or
regulation or any provision of the Certificate of Incorporation or By-Laws
of the Company or result in the breach of, or constitute a default or
require any consent under, or result in the creation of any lien, charge or
encumbrance upon any of the properties, revenues, or assets of the Company
pursuant to, any indenture or other agreement or instrument to which the
Company is a party or by which the Company or its property may be bound or
affected.
(c) No authorization, consent or 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 Amendment or the Credit
Agreement or the Notes, as amended hereby, to which it is or is to be a
party.
(d) This Amendment has been duly executed and delivered by the
Company. This Amendment and each of the Credit Agreement and the Notes, as
amended hereby, to which the Company is a party are legal, valid and
binding obligations 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) There is no action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
pending or to the knowledge of the Company, threatened affecting the
Company or any of its Subsidiaries before any court, governmental agency or
arbitrator that purports to affect the legality, validity or enforceability
of this Amendment or the Credit Agreement or any Note or the consummation
of the transactions contemplated hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes to
"the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses The Company agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment 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 but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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
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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
BANK OF AMERICA, N.A.
By: /s/ John W. Pocalyko
-----------------------------------
Name: John W. Pocalyko
Title: Managing Director
JPMORGAN CHASE BANK
By: /s/ Randolph Cates
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Name: Randolph Cates
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH
By:
-----------------------------------
Name:
Title:
By:
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Name:
Title:
BARCLAYS BANK PLC
By: /s/ Douglas Bernegger
-----------------------------------
Name: Douglas Bernegger
Title: Director
BANCA NAZIONALE DE LAVORO S.p.A.-NEW
YORK BRANCH
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Spencer Hughes
-----------------------------------
Name: Spencer Hughes
Title: Vice President
BANK ONE, NA
By: /s/ Mahua Thakurta
-----------------------------------
Name: Mahua Thakurta
Title: Associate Director
HSBC BANK USA
By: /s/ Diane M. Zieske
-----------------------------------
Name: Diane M. Zieske
Title: First Vice President
MELLON BANK, N.A.
By:
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Name:
Title:
REVOLVING COMMITMENT VEHICLE
CORPORATION
By:
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Name:
Title:
ABN AMRO BANK N.V.
By: /s/ James S. Kreitler
-----------------------------------
Name: James S. Kreitler
Title: Senior Vice President
By: /s/ Todd J. Miller
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Name: Todd J. Miller
Title: Assistant Vice President
BANCA DI ROMA
By:
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Name:
Title:
By:
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Name:
Title:
BNP PARIBAS
By: /s/ Christopher Criswell
-----------------------------------
Name: Christopher Criswell
Title: Managing Director
By: /s/ Bruno Lavole
-----------------------------------
Name: Bruno Lavole
Title: Managing Director
NORTHERN TRUST COMPANY
By:
-----------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Robert H. Riley III
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Name: Robert H. Riley III
Title: Senior Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Peter M. Angelica
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Name: Peter M. Angelica
Title: Vice President
BANCO BILBAO VIZCAYA
By: /s/ Miguel Lara
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Name: Miguel Lara
Title: VP, Global Corporate Banking
By: /s/ Phillip Paddack
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Name: Phillip Paddack
Title: Senior VP, Branch Manager
BANK OF MONTREAL
By:
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Name:
Title:
THE FUJI BANK, LIMITED (see Mizuho)
By:
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN (see
Mizuho)
By:
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Name:
Title:
ROYAL BANK OF CANADA
By: /s/ Scott Umbs
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Name: Scott Umbs
Title: Manager
STANDARD CHARTERED
By:
-----------------------------------
Name:
Title:
UNICREDITO ITALIANO
By: /s/ Christopher Eldin
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Name: Christopher Eldin
Title: FVP & Deputy Manager
By: /s/ Charles Michael
-----------------------------------
Name: Charles Michael
Title: Vice President
MIZUHO CORPORATE BANK, LTD
By: /s/ Naoki Yamamori
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Name: Naoki Yamamori
Title: Deputy General Manager