\nSECTION 8.04. Lender Credit Decision ……………………………………..61
\nSECTION 8.05. Indemnification ……………………………………………61
\nSECTION 8.06. Successor Agent ……………………………………………62
\nSECTION 8.07. Sub-Agent …………………………………………………62<\/p>\n ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 9.01. Amendments, Etc. …………………………………………..63
\nSECTION 9.02. Notices, Etc. ……………………………………………..63
\nSECTION 9.03. No Waiver; Remedies ………………………………………..64
\nSECTION 9.04. Costs and Expenses …………………………………………64
\nSECTION 9.05. Right of Set-off …………………………………………..65
\nSECTION 9.06. Binding Effect …………………………………………….65
\nSECTION 9.07. Assignments and Participations ………………………………65
\nSECTION 9.08. Designated Subsidiaries …………………………………….68
\nSECTION 9.09. Confidentiality ……………………………………………69
\nSECTION 9.10. Mitigation of Yield Protection ………………………………69
\nSECTION 9.11. Governing Law. …………………………………………….70
\nSECTION 9.12. Execution in Counterparts …………………………………..70
\nSECTION 9.13. Jurisdiction, Etc. …………………………………………70
\nSECTION 9.14. Substitution of Currency ……………………………………71
\nSECTION 9.15. Final Agreement ……………………………………………71
\nSECTION 9.16. Judgment ………………………………………………….71
\nSECTION 9.17. Waiver of Jury Trial ……………………………………….73<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
SCHEDULES<\/p>\n
Schedule I – List of Applicable Lending Offices<\/p>\n
Schedule 3.01(b) – Disclosed Litigation<\/p>\n
EXHIBITS<\/p>\n
Exhibit A-1 – Form of Revolving Credit Note<\/p>\n
Exhibit A-2 – Form of Competitive Bid Note<\/p>\n
Exhibit B-1 – Form of Notice of Revolving Credit Borrowing<\/p>\n
Exhibit B-2 – Form of Notice of Competitive Bid Borrowing<\/p>\n
Exhibit C – Form of Assignment and Acceptance<\/p>\n
Exhibit D – Form of Assumption Agreement<\/p>\n
Exhibit E – Form of Designation Letter<\/p>\n
Exhibit F – Form of Acceptance by Process Agent<\/p>\n
Exhibit G – Form of Opinion of J. Edward Smith, Assistant General Counsel
\n of the Company<\/p>\n
Exhibit H – Form of Opinion of Counsel to a Designated Subsidiary<\/p>\n
Exhibit I – Form of Opinion of Shearman & Sterling, Counsel to the Agent<\/p>\n
364-DAY CREDIT AGREEMENT<\/p>\n
Dated as of December 2, 1999<\/p>\n
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the “Company”),
\nthe banks, financial institutions and other institutional lenders (the “Initial
\nLenders”) listed on the signature pages hereof, and CITIBANK, N.A. (“Citibank”),
\nas administrative agent (the “Agent”) for the Lenders (as hereinafter defined),
\nagree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS AND ACCOUNTING TERMS<\/p>\n
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
\nfollowing terms shall have the following meanings (such meanings to be equally
\napplicable to both the singular and plural forms of the terms defined):<\/p>\n
“Advance” means a Revolving Credit Advance or a Competitive
\n Bid Advance.<\/p>\n
“Affiliate” means, as to any Person, any other Person that,
\n directly or indirectly, controls, is controlled by or is under common
\n control with such Person or is a director or officer of such Person.
\n For purposes of this definition, the term “control” (including the
\n terms “controlling”, “controlled by” and “under common control with”)
\n of a Person means the possession, direct or indirect, of the power to
\n direct or cause the direction of the management and policies of such
\n Person, whether through the ownership of Voting Stock, by contract or
\n otherwise.<\/p>\n
“Agent’s Account” means (a) in the case of Advances
\n denominated in Dollars, the account of the Agent maintained by the
\n Agent at Citibank at its office at 399 Park Avenue, New York, New York
\n 10043, Account No. 36852248, Attention: Janet Wallace, (b) in the case
\n of Advances denominated in any Foreign Currency, the account of the
\n Sub-Agent designated in writing from time to time by the Agent to the
\n Company and the Lenders for such purpose and (c) in any such case, such
\n other account of the Agent as is designated in writing from time to
\n time by the Agent to the Company and the Lenders for such purpose.<\/p>\n
“Alternate Currency” means any lawful currency other than
\n Dollars and the Major Currencies that is freely transferrable and
\n convertible into Dollars.<\/p>\n
2<\/p>\n
“Applicable Lending Office” means, with respect to each
\n Lender, such Lender’s Domestic Lending Office in the case of a Base
\n Rate Advance and such Lender’s Eurocurrency Lending Office in the case
\n of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
\n Advance, the office of such Lender notified by such Lender to the Agent
\n as its Applicable Lending Office with respect to such Competitive Bid
\n Advance.<\/p>\n
“Applicable Margin” means, as of any date, 0.145% per annum.<\/p>\n
“Applicable Percentage” means, as of any date, a 0.055% per
\n annum.<\/p>\n
“Assignment and Acceptance” means an assignment and acceptance
\n entered into by a Lender and an Eligible Assignee, and accepted by the
\n Agent, in substantially the form of Exhibit C hereto.<\/p>\n
“Assuming Lender” means an Eligible Assignee not previously a
\n Lender that becomes a Lender hereunder pursuant to Section 2.16.<\/p>\n
“Assumption Agreement” means an agreement in substantially the
\n form of Exhibit D hereto by which an Eligible Assignee agrees to become
\n a Lender hereunder pursuant to Section 2.16, in each case agreeing to
\n be bound by all obligations of a Lender hereunder.<\/p>\n
“Base Rate” means a fluctuating interest rate per annum in
\n effect from time to time, which rate per annum shall at all times be
\n equal to the highest of:<\/p>\n
(a) the rate of interest announced publicly by
\n Citibank in New York, New York, from time to time, as
\n Citibank’s base rate;<\/p>\n
(b) the sum (adjusted to the nearest 1\/32 of 1% or,
\n if there is no nearest 1\/32 of 1%, to the next higher 1\/32 of
\n 1%) of (i) 1\/2 of 1% per annum, plus (ii) the rate obtained by
\n dividing (A) the latest three-week moving average of secondary
\n market morning offering rates in the United States for
\n three-month certificates of deposit of major United States
\n money market banks, such three-week moving average (adjusted
\n to the basis of a year of 360 days) being determined weekly on
\n each Monday (or, if such day is not a Business Day, on the
\n next succeeding Business Day) for the three-week period ending
\n on the previous Friday by Citibank on the basis of such rates
\n reported by certificate of deposit dealers to and published by
\n the Federal Reserve Bank of New York or, if such publication
\n shall be suspended or terminated, on the basis of quotations
\n for such rates received by Citibank from three New York
\n certificate of deposit dealers of recognized standing selected
\n by Citibank, by (B) a percentage equal to 100% minus the
\n average of the daily percentages specified during such
\n three-week period by the Board of Governors of the Federal<\/p>\n
3<\/p>\n
Reserve System (or any successor) for determining the maximum
\n reserve requirement (including, but not limited to, any
\n emergency, supplemental or other marginal reserve requirement)
\n for Citibank with respect to liabilities consisting of or
\n including (among other liabilities) three-month Dollar
\n non-personal time deposits in the United States, plus (iii)
\n the average during such three-week period of the annual
\n assessment rates estimated by Citibank for determining the
\n then current annual assessment payable by Citibank to the
\n Federal Deposit Insurance Corporation (or any successor) for
\n insuring Dollar deposits of Citibank in the United States;<\/p>\n
(c) 1\/2 of one percent per annum above the Federal
\n Funds Rate; and<\/p>\n
(d) for the period from December 15, 1999 through
\n January 15, 2000, two percent per annum above the Federal
\n Funds Rate.<\/p>\n
“Base Rate Advance” means a Revolving Credit Advance
\n denominated in Dollars that bears interest as provided in Section
\n 2.07(a)(i).<\/p>\n
“Borrower” means the Company or any Designated Subsidiary, as
\n the context requires.<\/p>\n
“Borrowing” means a Revolving Credit Borrowing or a
\n Competitive Bid Borrowing.<\/p>\n
“Business Day” means a day of the year on which banks are not
\n required or authorized by law to close in New York City and, if the
\n applicable Business Day relates to any Eurocurrency Rate Advance or
\n LIBO Rate Advance, on which dealings are carried on in the London
\n interbank market and banks are open for business in London and in the
\n country of issue of the currency of such Eurocurrency Rate Advance or
\n LIBO Rate Advance (or, in the case of an Advance denominated in the
\n euro, in Frankfurt, Germany) and, if the applicable Business Day
\n relates to any Local Rate Advance, on which banks are open for business
\n in the country of issue of the currency of such Local Rate Advance.<\/p>\n
“Change of Control” means that (i) any Person or group of
\n Persons (within the meaning of Section 13 or 14 of the Securities
\n Exchange Act of 1934, as amended (the “Act”)) (other than the Company,
\n any Subsidiary of the Company or any savings, pension or other benefit
\n plan for the benefit of employees of the Company or its Subsidiaries)
\n which theretofore beneficially owned less than 30% of the Voting Stock
\n of the Company then outstanding shall have acquired beneficial
\n ownership (within the meaning of Rule 13d-3 promulgated by the
\n Securities and Exchange Commission under the Act) of 30% or more in
\n voting power of the outstanding Voting Stock of the Company or (ii)
\n during any period of twelve consecutive calendar months commencing at
\n the effective time of the merger of Honeywell Inc. and a wholly owned
\n Subsidiary of the Company as contemplated by the<\/p>\n
4<\/p>\n
Merger Agreement, individuals who at the beginning of such twelve-month
\n period were directors of the Company shall cease to constitute a
\n majority of the Board of Directors of the Company.<\/p>\n
“Commitment” means as to any Lender (i) the Dollar amount set
\n forth opposite its name on the signature pages hereof, (ii) if such
\n Lender has become a Lender hereunder pursuant to an Assumption
\n Agreement, the Dollar amount set forth as its Commitment in such
\n Assumption Agreement or (iii) if such Lender has entered into any
\n Assignment and Acceptance, the Dollar amount set forth for such Lender
\n in the Register maintained by the Administrative Agent pursuant to
\n Section 9.07(d), in each case as the same may be terminated or reduced,
\n as the case may be, pursuant to Section 2.05.<\/p>\n
“Competitive Bid Advance” means an advance by a Lender to any
\n Borrower as part of a Competitive Bid Borrowing resulting from the
\n competitive bidding procedure described in Section 2.03 and refers to a
\n Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance (each
\n of which shall be a “Type” of Competitive Bid Advance).<\/p>\n
“Competitive Bid Borrowing” means a borrowing consisting of
\n simultaneous Competitive Bid Advances from each of the Lenders whose
\n offer to make one or more Competitive Bid Advances as part of such
\n borrowing has been accepted under the competitive bidding procedure
\n described in Section 2.03.<\/p>\n
“Competitive Bid Note” means a promissory note of any Borrower
\n payable to the order of any Lender, in substantially the form of
\n Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
\n such Lender resulting from a Competitive Bid Advance made by such
\n Lender to such Borrower.<\/p>\n
“Competitive Bid Reduction” has the meaning specified in
\n Section 2.01.<\/p>\n
“Consenting Lenders” has the meaning specified in Section
\n 2.16(b).<\/p>\n
“Consolidated” refers to the consolidation of accounts in
\n accordance with GAAP.<\/p>\n
“Consolidated Subsidiary” means, at any time, any Subsidiary
\n the accounts of which are required at that time to be included on a
\n Consolidated basis in the Consolidated financial statements of the
\n Company, assuming that such financial statements are prepared in
\n accordance with GAAP.<\/p>\n
“Convert”, “Conversion” and “Converted” each refers to a
\n conversion of Revolving Credit Advances of one Type into Revolving
\n Credit Advances of the other Type pursuant to Section 2.08 or 2.11.<\/p>\n
5<\/p>\n
“Debt” means, with respect to any Person: (i) indebtedness of
\n such Person, which is not limited as to recourse to such Person, for
\n borrowed money (whether by loan or the issuance and sale of debt
\n securities) or for the deferred (for 90 days or more) purchase or
\n acquisition price of property or services; (ii) indebtedness or
\n obligations of others which such Person has assumed or guaranteed;
\n (iii) indebtedness or obligations of others secured by a lien, charge
\n or encumbrance on property of such Person whether or not such Person
\n shall have assumed such indebtedness or obligations; (iv) obligations
\n of such Person in respect of letters of credit (other than performance
\n letters of credit, except to the extent backing an obligation of any
\n Person which would be Debt of such Person), acceptance facilities, or
\n drafts or similar instruments issued or accepted by banks and other
\n financial institutions for the account of such Person; and (v)
\n obligations of such Person under leases which are required to be
\n capitalized on a balance sheet of such Person in accordance with GAAP.<\/p>\n
“Default” means any Event of Default or any event that would
\n constitute an Event of Default but for the requirement that notice be
\n given or time elapse or both.<\/p>\n
“Designated Subsidiary” means any corporate Subsidiary of the
\n Company designated for borrowing privileges under this Agreement
\n pursuant to Section 9.08.<\/p>\n
“Designation Letter” means, with respect to any Designated
\n Subsidiary, a letter in the form of Exhibit E hereto signed by such
\n Designated Subsidiary and the Company.<\/p>\n
“Disclosed Litigation” has the meaning specified in Section
\n 3.01(b).<\/p>\n
“Dollars” and the “$” sign each mean lawful money of the
\n United States of America.<\/p>\n
“Domestic Lending Office” means, with respect to any Initial
\n Lender, the office of such Lender specified as its “Domestic Lending
\n Office” opposite its name on Schedule I hereto and, with respect to any
\n other Lender, the office of such Lender specified as its “Domestic
\n Lending Office” in the Assumption Agreement or in the Assignment and
\n Acceptance pursuant to which it became a Lender, or such other office
\n of such Lender as such Lender may from time to time specify to the
\n Company and the Agent.<\/p>\n
“Domestic Subsidiary” means any Subsidiary whose operations
\n are conducted primarily in the United States excluding any Subsidiary
\n whose assets consist primarily of the stock of Subsidiaries whose
\n operations are conducted outside the United States of America.<\/p>\n
“Effective Date” has the meaning specified in Section 3.01.<\/p>\n
6<\/p>\n
“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a
\n Lender; (iii) a commercial bank organized under the laws of the United
\n States, or any State thereof, and having total assets in excess of
\n $10,000,000,000; (iv) a savings and loan association or savings bank
\n organized under the laws of the United States, or any State thereof,
\n and having a net worth of at least $500,000,000, calculated in
\n accordance with GAAP; (v) a commercial bank organized under the laws of
\n any other country that is a member of the Organization for Economic
\n Cooperation and Development or has concluded special lending
\n arrangements with the International Monetary Fund associated with its
\n General Arrangements to Borrow, or a political subdivision of any such
\n country, and having total assets in excess of $10,000,000,000, so long
\n as such bank is acting through a branch or agency located in the
\n country in which it is organized or another country that is described
\n in this clause (v); and (vi) the central bank of any country that is a
\n member of the Organization for Economic Cooperation and Development.<\/p>\n
“Environmental Action” means any action, suit, demand, demand
\n letter, claim, notice of non-compliance or violation, notice of
\n liability or potential liability, investigation, proceeding, consent
\n order or consent agreement relating in any way to any Environmental
\n Law, Environmental Permit or Hazardous Materials or arising from
\n alleged injury or threat of injury to health, safety or the
\n environment, including, without limitation, (a) by any governmental or
\n regulatory authority for enforcement, cleanup, removal, response,
\n remedial or other actions or damages and (b) by any governmental or
\n regulatory authority or any third party for damages, contribution,
\n indemnification, cost recovery, compensation or injunctive relief.<\/p>\n
“Environmental Law” means any federal, state, local or foreign
\n statute, law, ordinance, rule, regulation, code, order, judgment,
\n decree or judicial or agency interpretation, policy or guidance
\n relating to pollution or protection of the environment, health, safety
\n or natural resources, including, without limitation, those relating to
\n the use, handling, transportation, treatment, storage, disposal,
\n release or discharge of Hazardous Materials.<\/p>\n
“Environmental Permit” means any permit, approval,
\n identification number, license or other authorization required under
\n any Environmental Law.<\/p>\n
“Equivalent” in Dollars of any Foreign Currency on any date
\n means the equivalent in Dollars of such Foreign Currency determined by
\n using the quoted spot rate at which the Sub-Agent’s principal office in
\n London offers to exchange Dollars for such Foreign Currency in London
\n prior to 4:00 P.M. (London time) (unless otherwise indicated by the
\n terms of this Agreement) on such date as is required pursuant to the
\n terms of this Agreement, and the “Equivalent” in any Foreign Currency
\n of Dollars means the equivalent in such Foreign Currency of Dollars
\n determined by using the quoted spot rate at which the Sub-Agent’s
\n principal office in London offers to exchange such Foreign Currency for
\n Dollars in London<\/p>\n
7<\/p>\n
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
\n terms of this Agreement) on such date as is required pursuant to the
\n terms of this Agreement.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of
\n 1974, as amended from time to time, and the regulations promulgated and
\n rulings issued thereunder.<\/p>\n
“ERISA Affiliate” of any Person means any other Person that
\n for purposes of Title IV of ERISA is a member of such Person’s
\n controlled group, or under common control with such Person, within the
\n meaning of Section 414 of the Internal Revenue Code.<\/p>\n
“ERISA Event” with respect to any Person means (a) (i) the
\n occurrence of a reportable event, within the meaning of Section 4043 of
\n ERISA, with respect to any Plan of such Person or any of its ERISA
\n Affiliates unless the 30-day notice requirement with respect to such
\n event has been waived by the PBGC, or (ii) the requirements of
\n subsection (1) of Section 4043(b) of ERISA (without regard to
\n subsection (2) of such Section) are met with a contributing sponsor, as
\n defined in Section 4001(a)(13) of ERISA, of a Plan of such Person or
\n any of its ERISA Affiliates, and an event described in paragraph (9),
\n (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
\n expected to occur with respect to such Plan within the following 30
\n days; (b) the application for a minimum funding waiver with respect to
\n a Plan of such Person or any of its ERISA Affiliates; (c) the provision
\n by the administrator of any Plan of such Person or any of its ERISA
\n Affiliates of a notice of intent to terminate such Plan in a distress
\n termination pursuant to Section 4041(a)(2) of ERISA (including any such
\n notice with respect to a plan amendment referred to in Section 4041(e)
\n of ERISA); (d) the cessation of operations at a facility of such Person
\n or any of its ERISA Affiliates in the circumstances described in
\n Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of
\n its ERISA Affiliates from a Multiple Employer Plan during a plan year
\n for which it was a substantial employer, as defined in Section
\n 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
\n under Section 302(f) of ERISA shall have been met with respect to any
\n Plan of such Person or any of its ERISA Affiliates; (g) the adoption of
\n an amendment to a Plan of such Person or any of its ERISA Affiliates
\n requiring the provision of security to such Plan pursuant to Section
\n 307 of ERISA; or (h) the institution by the PBGC of proceedings to
\n terminate a Plan of such Person or any of its ERISA Affiliates pursuant
\n to Section 4042 of ERISA, or the occurrence of any event or condition
\n described in Section 4042 of ERISA that constitutes grounds for the
\n termination of, or the appointment of a trustee to administer, such
\n Plan.<\/p>\n
“Escrow” means an escrow established with an independent
\n escrow agent pursuant to an escrow agreement reasonably satisfactory in
\n form and substance to the Person or Persons asserting the obligation of
\n one or more Borrowers to make a payment to it or them hereunder.<\/p>\n
8<\/p>\n
“Eurocurrency Lending Office” means, with respect to any
\n Initial Lender, the office of such Lender specified as its
\n “Eurocurrency Lending Office” opposite its name on Schedule I hereto
\n and, with respect to any other Lender, the office of such Lender
\n specified as its “Eurocurrency Lending Office” in the Assumption
\n Agreement or in the Assignment and Acceptance pursuant to which it
\n became a Lender (or, if no such office is specified, its Domestic
\n Lending Office), or such other office of such Lender as such Lender may
\n from time to time specify to the Company and the Agent.<\/p>\n
“Eurocurrency Liabilities” has the meaning assigned to that
\n term in Regulation D of the Board of Governors of the Federal Reserve
\n System, as in effect from time to time.<\/p>\n
“Eurocurrency Rate” means, for any Interest Period for each
\n Eurocurrency Rate Advance comprising part of the same Revolving Credit
\n Borrowing, an interest rate per annum equal to the rate per annum
\n obtained by dividing (a) the rate per annum (rounded upwards, if
\n necessary, to the nearest 1\/100 of 1%) appearing on the applicable
\n Telerate Page as the London interbank offered rate for deposits in
\n Dollars or in the relevant Major Currency at approximately 11:00 A.M.
\n (London time) two Business Days prior to the first day of such Interest
\n Period for a term comparable to such Interest Period or, if for any
\n reason such rate is not available, the average (rounded upward to the
\n nearest whole multiple of 1\/32 of 1% per annum, if such average is not
\n such a multiple) of the rate per annum at which deposits in Dollars or
\n in the relevant Major Currency are offered by the principal office of
\n each of the Reference Banks in London, England to prime banks in the
\n London interbank market at 11:00 A.M. (London time) two Business Days
\n before the first day of such Interest Period in an amount substantially
\n equal to such Reference Bank’s Eurocurrency Rate Advance comprising
\n part of such Revolving Credit Borrowing to be outstanding during such
\n Interest Period and for a period equal to such Interest Period by (b) a
\n percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
\n for such Interest Period. If the Telerate Page is unavailable, the
\n Eurocurrency Rate for any Interest Period for each Eurocurrency Rate
\n Advance comprising part of the same Revolving Credit Borrowing shall be
\n determined by the Agent on the basis of applicable rates furnished to
\n and received by the Agent from the Reference Banks two Business Days
\n before the first day of such Interest Period, subject, however, to the
\n provisions of Section 2.08.<\/p>\n
“Eurocurrency Rate Advance” means a Revolving Credit Advance
\n denominated in Dollars or in a Major Currency that bears interest as
\n provided in Section 2.07(a)(ii).<\/p>\n
“Eurocurrency Rate Reserve Percentage” for any Interest Period
\n for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
\n part of the same Borrowing means the reserve percentage applicable two
\n Business Days before the first day of such Interest Period under
\n regulations issued from time to time by the Board of Governors of the
\n Federal Reserve System (or any successor) for determining the maximum
\n reserve requirement (including,<\/p>\n
9<\/p>\n
without limitation, any emergency, supplemental or other marginal
\n reserve requirement) for a member bank of the Federal Reserve System in
\n New York City with respect to liabilities or assets consisting of or
\n including Eurocurrency Liabilities (or with respect to any other
\n category of liabilities that includes deposits by reference to which
\n the interest rate on Eurocurrency Rate Advances or LIBO Rate Advances
\n is determined) having a term equal to such Interest Period.<\/p>\n
“Events of Default” has the meaning specified in Section 6.01.<\/p>\n
“Extension Date” has the meaning specified in Section 2.16(a).<\/p>\n
“Federal Funds Rate” means, for any period, a fluctuating
\n interest rate per annum equal for each day during such period to the
\n weighted average of the rates on overnight Federal funds transactions
\n with members of the Federal Reserve System arranged by Federal funds
\n brokers, as published for such day (or, if such day is not a Business
\n Day, for the next preceding Business Day) by the Federal Reserve Bank
\n of New York, or, if such rate is not so published for any day that is a
\n Business Day, the average of the quotations for such day on such
\n transactions received by the Agent from three Federal funds brokers of
\n recognized standing selected by it.<\/p>\n
“Fixed Rate Advance” has the meaning specified in Section
\n 2.03(a)(i), which Advance shall be denominated in Dollars or in any
\n Foreign Currency.<\/p>\n
“Foreign Currency” means any Major Currency or any Alternate
\n Currency.<\/p>\n
“GAAP” has the meaning specified in Section 1.03.<\/p>\n
“Hazardous Materials” means (a) petroleum and petroleum
\n products, byproducts or breakdown products, radioactive materials,
\n asbestos-containing materials, polychlorinated biphenyls and radon gas
\n and (b) any other chemicals, materials or substances designated,
\n classified or regulated as hazardous or toxic or as a pollutant or
\n contaminant under any Environmental Law.<\/p>\n
“Insufficiency” means, with respect to any Plan, the amount,
\n if any, of its unfunded benefit liabilities, as defined in Section
\n 4001(a)(18) of ERISA.<\/p>\n
“Interest Period” means, for each Eurocurrency Rate Advance
\n comprising part of the same Revolving Credit Borrowing and each LIBO
\n Rate Advance comprising part of the same Competitive Bid Borrowing, the
\n period commencing on the date of such Eurocurrency Rate Advance or LIBO
\n Rate Advance or the date of the Conversion of any Base Rate Advance
\n into such Eurocurrency Rate Advance and ending on the last day of the
\n period<\/p>\n
10<\/p>\n
selected by the Borrower requesting such Borrowing pursuant to the
\n provisions below and, thereafter, with respect to Eurocurrency Rate
\n Advances, each subsequent period commencing on the last day of the
\n immediately preceding Interest Period and ending on the last day of the
\n period selected by such Borrower pursuant to the provisions below. The
\n duration of each such Interest Period shall be one, two, three or six
\n months and, if available to all Lenders, nine months, as the Borrower
\n requesting the Borrowing may, upon notice received by the Agent not
\n later than 11:00 A.M. (New York City time) on the third Business Day
\n prior to the first day of such Interest Period, select; provided,
\n however, that:<\/p>\n
(i) such Borrower may not select any Interest Period
\n that ends after the scheduled Termination Date;<\/p>\n
(ii) Interest Periods commencing on the same date for
\n Eurocurrency Rate Advances comprising part of the same
\n Revolving Credit Borrowing or for LIBO Rate Advances
\n comprising part of the same Competitive Bid Borrowing shall be
\n of the same duration;<\/p>\n
(iii) whenever the last day of any Interest Period
\n would otherwise occur on a day other than a Business Day, the
\n last day of such Interest Period shall be extended to occur on
\n the next succeeding Business Day, provided, however, that, if
\n such extension would cause the last day of such Interest
\n Period to occur in the next following calendar month, the last
\n day of such Interest Period shall occur on the next preceding
\n Business Day; and<\/p>\n
(iv) whenever the first day of any Interest Period
\n occurs on a day of an initial calendar month for which there
\n is no numerically corresponding day in the calendar month that
\n succeeds such initial calendar month by the number of months
\n equal to the number of months in such Interest Period, such
\n Interest Period shall end on the last Business Day of such
\n succeeding calendar month.<\/p>\n
“Internal Revenue Code” means the Internal Revenue Code of
\n 1986, as amended from time to time, and the regulations promulgated and
\n rulings issued thereunder.<\/p>\n
“Lenders” means, collectively, (i) Initial Lenders, (ii) each
\n Assuming Lender that shall become a party hereto pursuant to Section
\n 2.16 and (iii) each Eligible Assignee that shall become a party hereto
\n pursuant to Section 9.07(a), (b) and (c).<\/p>\n
“LIBO Rate” means, for any Interest Period for all LIBO Rate
\n Advances comprising part of the same Competitive Bid Borrowing, an
\n interest rate per annum equal to the rate per annum obtained by
\n dividing (a) the rate per annum (rounded upwards, if necessary, to the
\n nearest 1\/100 of 1%) appearing on the applicable Telerate Page as the
\n London interbank<\/p>\n
11<\/p>\n
offered rate for deposits in Dollars or in the relevant Foreign
\n Currency at approximately 11:00 A.M. (London time) two Business Days
\n prior to the first day of such Interest Period or, if for any reason
\n such rate is not available, the average (rounded upward to the nearest
\n whole multiple of 1\/32 of 1% per annum, if such average is not such a
\n multiple) of the rate per annum at which deposits in Dollars or in the
\n relevant Foreign Currency are offered by the principal office of each
\n of the Reference Banks in London, England to prime banks in the London
\n interbank market at 11:00 A.M. (London time) two Business Days before
\n the first day of such Interest Period in an amount substantially equal
\n to the amount that would be the Reference Banks’ respective ratable
\n shares of such Borrowing if such Borrowing were to be a Revolving
\n Credit Borrowing to be outstanding during such Interest Period and for
\n a period equal to such Interest Period by (b) a percentage equal to
\n 100% minus the Eurocurrency Rate Reserve Percentage for such Interest
\n Period. If the Telerate Page is unavailable, the LIBO Rate for any
\n Interest Period for each LIBO Rate Advance comprising part of the same
\n Competitive Bid Borrowing shall be determined by the Agent on the basis
\n of applicable rates furnished to and received by the Agent from the
\n Reference Banks two Business Days before the first day of such Interest
\n Period, subject, however, to the provisions of Section 2.08.<\/p>\n
“LIBO Rate Advance” means a Competitive Bid Advance
\n denominated in Dollars or in any Foreign Currency and bearing interest
\n based on the LIBO Rate.<\/p>\n
“Lien” means any lien, mortgage, pledge, security interest or
\n other charge or encumbrance of any kind.<\/p>\n
“Local Rate Advance” means a Competitive Bid Advance
\n denominated in any Foreign Currency sourced from the jurisdiction of
\n issuance of such Foreign Currency and bearing interest at a fixed rate.<\/p>\n
“Major Currencies” means lawful currency of the United Kingdom
\n of Great Britain and Northern Ireland, lawful currency of the Federal
\n Republic of Germany, lawful currency of Japan, lawful currency of the
\n Republic of France and lawful currency of the European Economic and
\n Monetary Union.<\/p>\n
“Majority Lenders” means at any time Lenders holding at least
\n 51% of the then aggregate principal amount (based on the Equivalent in
\n Dollars at such time) of the Revolving Credit Advances owing to
\n Lenders, or, if no such principal amount is then outstanding, Lenders
\n having at least 51% of the Commitments.<\/p>\n
“Material Adverse Change” means any material adverse change in
\n the financial condition or results of operations of the Company and its
\n Consolidated Subsidiaries taken as a whole.<\/p>\n
12<\/p>\n
“Material Adverse Effect” means a material adverse effect on
\n (a) the financial condition or results of operations of the Company and
\n its Consolidated Subsidiaries taken as a whole, (b) the rights and
\n remedies of the Agent or any Lender under this Agreement or any Note or
\n (c) the ability of the Borrowers to perform their obligations under
\n this Agreement or any Note.<\/p>\n
“Merger Agreement” means the Agreement and Plan of Merger
\n dated as of June 4, 1999 among Honeywell Inc., the Company and Blossom
\n Acquisition Corp, a wholly owned Subsidiary of the Company.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc.<\/p>\n
“Multiemployer Plan” of any Person means a multiemployer plan,
\n as defined in Section 4001(a)(3) of ERISA, to which such Person or any
\n of its ERISA Affiliates is making or accruing an obligation to make
\n contributions, or has within any of the preceding five plan years made
\n or accrued an obligation to make contributions.<\/p>\n
“Multiple Employer Plan” of any Person means a single employer
\n plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
\n maintained for employees of such Person or any of its ERISA Affiliates
\n and at least one Person other than such Person or any of its ERISA
\n Affiliates or (b) was so maintained and in respect of which such Person
\n or any of its ERISA Affiliates could have liability under Section 4064
\n or 4069 of ERISA in the event such plan has been or were to be
\n terminated.<\/p>\n
“Net Tangible Assets of the Company and its Consolidated
\n Subsidiaries”, as at any particular date of determination, means the
\n total amount of assets (less applicable reserves and other properly
\n deductible items) after deducting therefrom (a) all current liabilities
\n (excluding any thereof which are by their terms extendible or renewable
\n at the option of the obligor thereon to a time more than 12 months
\n after the time as of which the amount thereof is being computed) and
\n (b) all goodwill, trade names, trademarks, patents, unamortized debt
\n discount and expense and other like intangible assets, as set forth in
\n the most recent balance sheet of the Company and its Consolidated
\n Subsidiaries and computed in accordance with GAAP.<\/p>\n
“Non-Consenting Lender” has the meaning specified in Section
\n 2.16(b).<\/p>\n
“Note” means a Revolving Credit Note or a Competitive Bid
\n Note.<\/p>\n
“Notice of Competitive Bid Borrowing” has the meaning
\n specified in Section 2.03(a).<\/p>\n
13<\/p>\n
“Notice of Revolving Credit Borrowing” has the meaning
\n specified in Section 2.02(a).<\/p>\n
“Obligations” has the meaning specified in Section 7.01(b).<\/p>\n
“Payment Office” means, for any Foreign Currency, such office
\n of Citibank as shall be from time to time selected by the Agent and
\n notified by the Agent to the Borrowers and the Lenders.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation (or any
\n successor).<\/p>\n
“Person” means an individual, partnership, corporation
\n (including a business trust), joint stock company, trust,
\n unincorporated association, joint venture, limited liability company or
\n other entity, or a government or any political subdivision or agency
\n thereof.<\/p>\n
“Plan” means a Single Employer Plan or a Multiple Employer
\n Plan.<\/p>\n
“Process Agent” has the meaning specified in Section 9.13(a).<\/p>\n
“Rating Condition” has the meaning specified in Section
\n 2.05(c)(ii).<\/p>\n
“Rating Condition Notice” has the meaning specified in Section
\n 2.05(c)(ii).<\/p>\n
“Reference Banks” means Citibank, Bank of America, N.A., The
\n Chase Manhattan Bank and Deutsche Bank AG.<\/p>\n
“Register” has the meaning specified in Section 9.07(d).<\/p>\n
“Restricted Property” means (a) any property of the Company
\n located within the United States of America that, in the opinion of the
\n Company’s Board of Directors, is a principal manufacturing property or
\n (b) any shares of capital stock or Debt of any Subsidiary owning any
\n such property.<\/p>\n
“Revolving Credit Advance” means an advance by a Lender to any
\n Borrower as part of a Revolving Credit Borrowing and refers to a Base
\n Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
\n “Type” of Revolving Credit Advance).<\/p>\n
“Revolving Credit Borrowing” means a borrowing consisting of
\n simultaneous Revolving Credit Advances of the same Type made by each of
\n the Lenders pursuant to Section 2.01.<\/p>\n
14<\/p>\n
“Revolving Credit Note” means a promissory note of any
\n Borrower payable to the order of any Lender, delivered pursuant to a
\n request made under Section 2.17 in substantially the form of Exhibit
\n A-1 hereto, evidencing the aggregate indebtedness of such Borrower to
\n such Lender resulting from the Revolving Credit Advances made by such
\n Lender to such Borrower.<\/p>\n
“Sale and Leaseback Transaction” means any arrangement with
\n any Person (other than the Company or a Subsidiary of the Company), or
\n to which any such Person is a party, providing for the leasing to the
\n Company or to a Subsidiary of the Company owning Restricted Property
\n for a period of more than three years of any Restricted Property that
\n has been or is to be sold or transferred by the Company or such
\n Subsidiary to such Person, or to any other Person (other than the
\n Company or a Subsidiary of the Company) to which funds have been or are
\n to be advanced by such Person on the security of the leased property.
\n It is understood that arrangements pursuant to Section 168(f)(8) of the
\n Internal Revenue Code of 1954, as amended, or any successor provision
\n having similar effect, are not included within this definition of “Sale
\n and Leaseback Transaction”.<\/p>\n
“Single Employer Plan” of any Person means a single employer
\n plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
\n maintained for employees of such Person or any of its ERISA Affiliates
\n and no Person other than such Person and its ERISA Affiliates or (b)
\n was so maintained and in respect of which such Person or any of its
\n ERISA Affiliates could have liability under Section 4069 of ERISA in
\n the event such plan has been or were to be terminated.<\/p>\n
“S&P” means Standard & Poor’s Ratings Group, a division of The
\n McGraw Hill Companies, Inc.<\/p>\n
“Sub-Agent” means Citibank International plc.<\/p>\n
“Subsidiary” of any Person means any corporation, partnership,
\n joint venture, limited liability company, trust or estate of which (or
\n in which) more than 50% of (a) the issued and outstanding capital stock
\n having ordinary voting power to elect a majority of the Board of
\n Directors of such corporation (irrespective of whether at the time
\n capital stock of any other class or classes of such corporation shall
\n or might have voting power upon the occurrence of any contingency), (b)
\n the interest in the capital or profits of such limited liability
\n company, partnership or joint venture or (c) the beneficial interest in
\n such trust or estate is at the time directly or indirectly owned or
\n controlled by such Person, by such Person and one or more of its other
\n Subsidiaries or by one or more of such Person’s other Subsidiaries.<\/p>\n
“Telerate Page” means, as applicable, page 3740 or 3750 (or
\n any successor pages, respectively) of Telerate Service of Bridge
\n Information Services.<\/p>\n
15<\/p>\n
“Termination Date” means the earlier of (a) November 30, 2000,
\n or such later date to which it may be extended pursuant to Section
\n 2.16, and (b) the date of termination in whole of the Commitments
\n pursuant to Section 2.05(a) or Section 6.01 or, if all Lenders elect to
\n terminate their Commitments as provided therein, Section 2.05(d).<\/p>\n
“Threatened” means, with respect to any action, suit,
\n investigation, litigation or proceeding, a written communication to the
\n Company or a Designated Subsidiary, as the case may be, expressing an
\n intention to immediately bring such action, suit, investigation,
\n litigation or proceeding.<\/p>\n
“Voting Stock” means capital stock issued by a corporation, or
\n equivalent interests in any other Person, the holders of which are
\n ordinarily, in the absence of contingencies, entitled to vote for the
\n election of directors (or persons performing similar functions) of such
\n Person, even if the right so to vote has been suspended by the
\n happening of such a contingency.<\/p>\n
“Withdrawal Liability” has the meaning specified in Part I of
\n Subtitle E of Title IV of ERISA.<\/p>\n
SECTION 1.02. Computation of Time Periods. In this Agreement
\nin the computation of periods of time from a specified date to a later specified
\ndate, the word “from” means “from and including” and the words “to” and “until”
\neach mean “to but excluding”.<\/p>\n
SECTION 1.03. Accounting Terms. All accounting terms not
\nspecifically defined herein shall be construed, and all financial computations
\nand determinations pursuant hereto shall be made, in accordance with generally
\naccepted accounting principles consistent with those applied in the preparation
\nof the financial statements referred to in Section 4.01(e) (“GAAP”); provided,
\nhowever, that, if any changes in accounting principles from those used in the
\npreparation of such financial statements have been required by the rules,
\nregulations, pronouncements or opinions of the Financial Accounting Standards
\nBoard or the American Institute of Certified Public Accountants (or successors
\nthereto or agencies with similar functions) and have been adopted by the Company
\nwith the agreement of its independent certified public accountants, the Lenders
\nagree to consider a request by the Company to amend this Agreement to take
\naccount of such changes.<\/p>\n
ARTICLE II<\/p>\n
AMOUNTS AND TERMS OF THE ADVANCES<\/p>\n
SECTION 2.01. The Revolving Credit Advances. Each Lender
\nseverally agrees, on the terms and conditions hereinafter set forth, to make
\nRevolving Credit Advances to any Borrower<\/p>\n
16<\/p>\n
from time to time on any Business Day during the period from the Effective Date
\nuntil the Termination Date in an aggregate amount (based in respect of any
\nRevolving Credit Advance denominated in a Major Currency on the Equivalent in
\nDollars determined on the date of delivery of the applicable Notice of Revolving
\nCredit Borrowing), not to exceed at any time outstanding such Lender’s
\nCommitment, provided that the aggregate amount of the Commitments of the Lenders
\nshall be deemed used from time to time to the extent of the aggregate amount
\n(based in respect of any Competitive Bid Advance denominated in a Foreign
\nCurrency on the Equivalent in Dollars at such time) of the Competitive Bid
\nAdvances then outstanding and such deemed use of the aggregate amount of the
\nCommitments shall be allocated among the Lenders ratably according to their
\nrespective Commitments (such deemed use of the aggregate amount of the
\nCommitments being a “Competitive Bid Reduction”). Each Revolving Credit
\nBorrowing shall be in an aggregate amount not less than $10,000,000 (or the
\nEquivalent thereof in any Major Currency determined on the date of delivery of
\nthe applicable Notice of Revolving Credit Borrowing) or an integral multiple of
\n$1,000,000 (or the Equivalent thereof in any Major Currency determined on the
\ndate of delivery of the applicable Notice of Revolving Credit Borrowing) in
\nexcess thereof and shall consist of Revolving Credit Advances of the same Type
\nmade on the same day by the Lenders ratably according to their respective
\nCommitments; provided, however, that if there is no unused portion of the
\nCommitment of one or more Lenders at the time of any requested Revolving Credit
\nBorrowing such Borrowing shall consist of Revolving Credit Advances of the same
\nType made on the same day by the Lender or Lenders who do then have an unused
\nportion of their Commitments ratably according to the unused portion of such
\nCommitments. Notwithstanding anything herein to the contrary, no Revolving
\nCredit Borrowing may be made in a Major Currency if, after giving effect to the
\nmaking of such Revolving Credit Borrowing, the Equivalent in Dollars of the
\naggregate amount of outstanding Revolving Credit Advances denominated in Major
\nCurrencies, together with the Equivalent in Dollars of the aggregate amount of
\noutstanding Competitive Bid Advances denominated in Foreign Currencies, would
\nexceed $500,000,000. Within the limits of each Lender’s Commitment, any Borrower
\nmay borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
\nunder this Section 2.01.<\/p>\n
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
\nRevolving Credit Borrowing shall be made on notice, given not later than (x)
\n10:00 A.M. (New York City time) on the third Business Day prior to the date of
\nthe proposed Revolving Credit Borrowing in the case of a Revolving Credit
\nBorrowing consisting of Eurocurrency Rate Advances denominated in any Major
\nCurrency, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
\nthe date of the proposed Revolving Credit Borrowing in the case of a Revolving
\nCredit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars
\nor (z) 9:00 A.M. (New York City time) on the day of the proposed Revolving
\nCredit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
\nRate Advances, by any Borrower to the Agent (and the Agent shall, in the case of
\na Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
\nimmediately relay such notice to the Sub-Agent), which shall give to each Lender
\nprompt notice thereof by telecopier or telex. Each such notice of a Revolving
\nCredit Borrowing (a “Notice of Revolving Credit<\/p>\n
17<\/p>\n
Borrowing”) shall be by telephone, confirmed immediately in writing, or
\ntelecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
\ntherein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
\nAdvances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
\nsuch Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
\nBorrowing consisting of Eurocurrency Rate Advances, initial Interest Period and
\ncurrency for each such Revolving Credit Advance. Each Lender shall, before 11:00
\nA.M. (New York City time) on the date of such Revolving Credit Borrowing, in the
\ncase of a Revolving Credit Borrowing consisting of Advances denominated in
\nDollars, and before 11:00 A.M. (London time) on the date of such Revolving
\nCredit Borrowing, in the case of a Revolving Credit Borrowing consisting of
\nEurocurrency Rate Advances denominated in any Major Currency, make available for
\nthe account of its Applicable Lending Office to the Agent at the applicable
\nAgent’s account, in same day funds, such Lender’s ratable portion (as determined
\nin accordance with Section 2.01) of such Revolving Credit Borrowing. After the
\nAgent’s receipt of such funds and upon fulfillment of the applicable conditions
\nset forth in Article III, the Agent will make such funds available to the
\nBorrower requesting the Revolving Credit Borrowing at the Agent’s aforesaid
\naddress or at the applicable Payment Office, as the case may be.<\/p>\n
(b) Anything in subsection (a) above to the contrary
\nnotwithstanding, a Borrower may not select Eurocurrency Rate Advances for any
\nproposed Revolving Credit Borrowing if the obligation of the Lenders to make
\nEurocurrency Rate Advances shall then be suspended pursuant to Section 2.08 or
\n2.11.<\/p>\n
(c) Each Notice of Revolving Credit Borrowing of any Borrower
\nshall be irrevocable and binding on such Borrower. In the case of any Revolving
\nCredit Borrowing that the related Notice of Revolving Credit Borrowing specifies
\nis to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
\nRevolving Credit Borrowing shall indemnify each Lender against any loss, cost or
\nexpense incurred by such Lender as a result of any failure by such Borrower to
\nfulfill on or before the date specified in such Notice of Revolving Credit
\nBorrowing for such Revolving Credit Borrowing the applicable conditions set
\nforth in Article III, including, without limitation, any loss (including loss of
\nanticipated profits), cost or expense incurred by reason of the liquidation or
\nreemployment of deposits or other funds acquired by such Lender to fund the
\nRevolving Credit Advance to be made by such Lender as part of such Revolving
\nCredit Borrowing when such Revolving Credit Advance, as a result of such
\nfailure, is not made on such date.<\/p>\n
(d) Unless the Agent shall have received notice from a Lender
\nprior to the date of any Revolving Credit Borrowing that such Lender will not
\nmake available to the Agent such Lender’s ratable portion of such Revolving
\nCredit Borrowing, the Agent may assume that such Lender has made such portion
\navailable to the Agent on the date of such Revolving Credit Borrowing in
\naccordance with subsection (a) of this Section 2.02 and the Agent may, in
\nreliance upon such assumption, make available to the Borrower proposing such
\nRevolving Credit Borrowing on such date a corresponding amount. If and to the
\nextent that such Lender shall not have so made<\/p>\n
18<\/p>\n
such ratable portion available to the Agent, such Lender and such Borrower
\nseverally agree to repay to the Agent forthwith on demand such corresponding
\namount together with interest thereon, for each day from the date such amount is
\nmade available to such Borrower until the date such amount is repaid to the
\nAgent, at (i) in the case of such Borrower, the higher of (A) the interest rate
\napplicable at the time to Revolving Credit Advances comprising such Revolving
\nCredit Borrowing and (B) the cost of funds incurred by the Agent in respect of
\nsuch amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in
\nthe case of Advances denominated in Dollars or (B) the cost of funds incurred by
\nthe Agent in respect of such amount in the case of Advances denominated in any
\nMajor Currency. If such Lender shall repay to the Agent such corresponding
\namount, such amount so repaid shall constitute such Lender’s Revolving Credit
\nAdvance as part of such Revolving Credit Borrowing for purposes of this
\nAgreement.<\/p>\n
(e) The failure of any Lender to make the Revolving Credit
\nAdvance to be made by it as part of any Revolving Credit Borrowing shall not
\nrelieve any other Lender of its obligation, if any, hereunder to make its
\nRevolving Credit Advance on the date of such Revolving Credit Borrowing, but no
\nLender shall be responsible for the failure of any other Lender to make the
\nRevolving Credit Advance to be made by such other Lender on the date of any
\nRevolving Credit Borrowing.<\/p>\n
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
\nseverally agrees that any Borrower may request Competitive Bid Borrowings under
\nthis Section 2.03 from time to time on any Business Day during the period from
\nthe date hereof until the date occurring seven days prior to the Termination
\nDate in the manner set forth below; provided that, following the making of each
\nCompetitive Bid Borrowing, the aggregate amount (based in respect of any Advance
\ndenominated in a Foreign Currency on the Equivalent in Dollars on such Business
\nDay) of the Advances then outstanding shall not exceed the aggregate amount of
\nthe Commitments of the Lenders (computed without regard to any Competitive Bid
\nReduction). Notwithstanding anything herein to the contrary, no Competitive Bid
\nBorrowing may be made in a Foreign Currency if, after giving effect to the
\nmaking of such Revolving Credit Borrowing, the Equivalent in Dollars of the
\naggregate amount of outstanding Competitive Bid Advances denominated in Foreign
\nCurrencies, together with the Equivalent in Dollars of the aggregate amount of
\noutstanding Revolving Credit Advances denominated in Major Currencies, would
\nexceed $500,000,000.<\/p>\n
(i) Any Borrower may request a Competitive Bid Borrowing under
\n this Section 2.03 by delivering to the Agent (and the Agent shall, in
\n the case of a Competitive Bid Borrowing not consisting of Fixed Rate
\n Advances or LIBO Rate Advances to be denominated in Dollars,
\n immediately notify the Sub-Agent), by telecopier or telex, a notice of
\n a Competitive Bid Borrowing (a “Notice of Competitive Bid Borrowing”),
\n in substantially the form of Exhibit B-2 hereto, specifying therein the
\n requested (A) date of such proposed Competitive Bid Borrowing, (B)
\n aggregate amount of such proposed Competitive Bid Borrowing, (C)
\n interest rate basis and day count convention to be offered by the
\n Lenders,<\/p>\n
19<\/p>\n
(D) currency of such proposed Competitive Bid Borrowing, (E) in the
\n case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
\n Interest Period of each Competitive Bid Advance to be made as part of
\n such Competitive Bid Borrowing, or in the case of a Competitive Bid
\n Borrowing consisting of Fixed Rate Advances or Local Rate Advances,
\n maturity date for repayment of each Fixed Rate Advance or Local Rate
\n Advance to be made as part of such Competitive Bid Borrowing (which
\n maturity date may not be earlier than the date occurring five days
\n after the date of such Competitive Bid Borrowing or later than the
\n Termination Date), (F) interest payment date or dates relating thereto,
\n (G) location of such Borrower’s account to which funds are to be
\n advanced, and (H) other terms (if any) to be applicable to such
\n Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
\n time) at least one Business Day prior to the date of the proposed
\n Competitive Bid Borrowing, if such Borrower shall specify in its Notice
\n of Competitive Bid Borrowing that the rates of interest to be offered
\n by the Lenders shall be fixed rates per annum (each Advance comprising
\n any such Competitive Bid Borrowing being referred to herein as a “Fixed
\n Rate Advance”) and that the Advances comprising such proposed
\n Competitive Bid Borrowing shall be denominated in Dollars, (x) 10:00
\n A.M. (New York City time) at least four Business Days prior to the date
\n of the proposed Competitive Bid Borrowing, if such Borrower shall
\n instead specify in its Notice of Competitive Bid Borrowing that the
\n Advances comprising such Competitive Bid Borrowing shall be LIBO Rate
\n Advances denominated in Dollars, (y) 3:00 P.M. (New York City time) at
\n least three Business Days prior to the date of the proposed Competitive
\n Bid Borrowing, if such Borrower shall specify in the Notice of
\n Competitive Bid Borrowing that the Advances comprising such proposed
\n Competitive Bid Borrowing shall be either Fixed Rate Advances
\n denominated in any Foreign Currency or Local Rate Advances denominated
\n in any Foreign Currency and (z) 3:00 P.M. (New York City time) at least
\n five Business Days prior to the date of the proposed Competitive Bid
\n Borrowing, if such Borrower shall instead specify in its Notice of
\n Competitive Bid Borrowing that the Advances comprising such Competitive
\n Bid Borrowing shall be LIBO Rate Advances denominated in any Foreign
\n Currency. Each Notice of Competitive Bid Borrowing shall be irrevocable
\n and binding on such Borrower. Any Notice of Competitive Bid Borrowing
\n by a Designated Subsidiary shall be given to the Agent in accordance
\n with the preceding sentence through the Company on behalf of such
\n Designated Subsidiary. The Agent shall in turn promptly notify each
\n Lender of each request for a Competitive Bid Borrowing received by it
\n from such Borrower by sending such Lender a copy of the related Notice
\n of Competitive Bid Borrowing.<\/p>\n
(ii) Each Lender may, if, in its sole discretion, it elects to
\n do so, irrevocably offer to make one or more Competitive Bid Advances
\n to the Borrower proposing the Competitive Bid Borrowing as part of such
\n proposed Competitive Bid Borrowing at a rate or rates of interest
\n specified by such Lender in its sole discretion, by notifying the Agent
\n (which shall give prompt notice thereof to such Borrower and to the
\n Sub-Agent, if applicable), (A) before 9:30 A.M. (New York City time) on
\n the date of such proposed Competitive Bid Borrowing, in the case of a
\n Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
\n in Dollars, (B) before 10:00 A.M. (New York City time) three Business
\n Days before the date of such proposed Competitive Bid Borrowing, in the
\n case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
\n denominated in Dollars, (C) before 10:00 A.M. (New York City time) on
\n the second Business Day prior to the date of such proposed Competitive
\n Bid Borrowing,<\/p>\n
20<\/p>\n
in the case of a Competitive Bid Borrowing consisting of either Fixed
\n Rate Advances denominated in any Foreign Currency or Local Rate
\n Advances denominated in any Foreign Currency and (D) before 10:00 A.M.
\n (New York City time) four Business Days before the date of such
\n proposed Competitive Bid Borrowing, in the case of a Competitive Bid
\n Borrowing consisting of LIBO Rate Advances denominated in any Foreign
\n Currency, of the minimum amount and maximum amount of each Competitive
\n Bid Advance which such Lender would be willing to make as part of such
\n proposed Competitive Bid Borrowing (which amounts, or the Equivalent
\n thereof in Dollars, as the case may be, may, subject to the proviso to
\n the first sentence of this Section 2.03(a), exceed such Lender’s
\n Commitment, if any), the rate or rates of interest therefor and such
\n Lender’s Applicable Lending Office with respect to such Competitive Bid
\n Advance; provided that if the Agent in its capacity as a Lender shall,
\n in its sole discretion, elect to make any such offer, it shall notify
\n such Borrower of such offer at least 30 minutes before the time and on
\n the date on which notice of such election is to be given to the Agent,
\n by the other Lenders. If any Lender shall elect not to make such an
\n offer, such Lender shall so notify the Agent, before 10:00 A.M. (New
\n York City time) (and the Agent shall notify the Sub-Agent, if
\n applicable) on the date on which notice of such election is to be given
\n to the Agent by the other Lenders, and such Lender shall not be
\n obligated to, and shall not, make any Competitive Bid Advance as part
\n of such Competitive Bid Borrowing; provided that the failure by any
\n Lender to give such notice shall not cause such Lender to be obligated
\n to make any Competitive Bid Advance as part of such proposed
\n Competitive Bid Borrowing.<\/p>\n
(iii) The Borrower proposing the Competitive Bid Advance
\n shall, in turn, (A) before 10:30 A.M. (New York City time) on the date
\n of such proposed Competitive Bid Borrowing, in the case of a
\n Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
\n in Dollars, (B) before 11:00 A.M. (New York City time) three Business
\n Days before the date of such proposed Competitive Bid Borrowing, in the
\n case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
\n denominated in Dollars, (C) before 10:00 A.M. (New York City time) on
\n the Business Day prior to the date of such Competitive Bid Borrowing,
\n in the case of a Competitive Bid Borrowing consisting of either Fixed
\n Rate Advances denominated in any Foreign Currency or Local Rate
\n Advances denominated in any Foreign Currency and (D) before 10:00 A.M.
\n (New York City time) three Business Days before the date of such
\n proposed Competitive Bid Borrowing, in the case of a Competitive Bid
\n Borrowing consisting of LIBO Rate Advances denominated in any Foreign
\n Currency, either:<\/p>\n
21<\/p>\n
(x) cancel such Competitive Bid Borrowing by giving
\n the Agent notice to that effect, or<\/p>\n
(y) accept one or more of the offers made by any
\n Lender or Lenders pursuant to paragraph (ii) above, in its
\n sole discretion, by giving notice to the Agent (and the Agent
\n shall give notice to the Sub-Agent, if applicable) of the
\n amount of each Competitive Bid Advance (which amount shall be
\n equal to or greater than the minimum amount, and equal to or
\n less than the maximum amount, notified to such Borrower by the
\n Agent on behalf of such Lender for such Competitive Bid
\n Advance pursuant to paragraph (ii) above) to be made by each
\n Lender as part of such Competitive Bid Borrowing, and reject
\n any remaining offers made by Lenders pursuant to paragraph
\n (ii) above by giving the Agent notice to that effect;
\n provided, however, that such Borrower shall not accept any
\n offer in excess of the requested bid amount for any maturity.
\n Such Borrower shall accept the offers made by any Lender or
\n Lenders to make Competitive Bid Advances in order of the
\n lowest to the highest rates of interest offered by such
\n Lenders. If two or more Lenders have offered the same interest
\n rate, the amount to be borrowed at such interest rate will be
\n allocated among such Lenders in proportion to the amount that
\n each such Lender offered at such interest rate.<\/p>\n
(iv) If the Borrower proposing the Competitive Bid Borrowing
\n notifies the Agent that such Competitive Bid Borrowing is canceled
\n pursuant to paragraph (iii)(x) above, the Agent shall give prompt
\n notice thereof to the Lenders and such Competitive Bid Borrowing shall
\n not be made.<\/p>\n
(v) If the Borrower proposing the Competitive Bid Borrowing
\n accepts one or more of the offers made by any Lender or Lenders
\n pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
\n notify (A) each Lender that has made an offer as described in paragraph
\n (ii) above, of the date and aggregate amount of such Competitive Bid
\n Borrowing and whether or not any offer or offers made by such Lender
\n pursuant to paragraph (ii) above have been accepted by the Borrower,
\n (B) each Lender that is to make a Competitive Bid Advance as part of
\n such Competitive Bid Borrowing, of the amount of each Competitive Bid
\n Advance to be made by such Lender as part of such Competitive Bid
\n Borrowing, and (C) each Lender that is to make a Competitive Bid
\n Advance as part of such Competitive Bid Borrowing, upon receipt, that
\n the Agent has received forms of documents appearing to fulfill the
\n applicable conditions set forth in Article III. Each Lender that is to
\n make a Competitive Bid Advance as part of such Competitive Bid
\n Borrowing shall, before 11:00 A.M. (New York City time), in the case of
\n Competitive Bid Advances to be denominated in Dollars or 11:00 A.M.
\n (London time), in the case of Competitive Bid Advances to be
\n denominated in any Foreign Currency, on the date of such Competitive
\n Bid Borrowing specified in the notice received from the Agent pursuant
\n to clause (A) of the preceding sentence or any later time<\/p>\n
22<\/p>\n
when such Lender shall have received notice from the Agent pursuant to
\n clause (C) of the preceding sentence, make available for the account of
\n its Applicable Lending Office to the Agent (x) in the case of a
\n Competitive Bid Borrowing denominated in Dollars, at its address
\n referred to in Section 9.02, in same day funds, such Lender’s portion
\n of such Competitive Bid Borrowing in Dollars, and (y) in the case of a
\n Competitive Bid Borrowing in a Foreign Currency, at the Payment Office
\n for such Foreign Currency as shall have been notified by the Agent to
\n the Lenders prior thereto, in same day funds, such Lender’s portion of
\n such Competitive Bid Borrowing in such Foreign Currency. Upon
\n fulfillment of the applicable conditions set forth in Article III and
\n after receipt by the Agent of such funds, the Agent will make such
\n funds available to such Borrower’s account at the location specified by
\n such Borrower in its Notice of Competitive Bid Borrowing. Promptly
\n after each Competitive Bid Borrowing the Agent will notify each Lender
\n of the amount of such Competitive Bid Borrowing, the consequent
\n Competitive Bid Reduction and the dates upon which such Competitive Bid
\n Reduction commenced and will terminate.<\/p>\n
(vi) If the Borrower proposing the Competitive Bid Borrowing
\n notifies the Agent that it accepts one or more of the offers made by
\n any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
\n of acceptance shall be irrevocable and binding on such Borrower. Such
\n Borrower shall indemnify each Lender against any loss, cost or expense
\n incurred by such Lender as a result of any failure by such Borrower to
\n fulfill on or before the date specified in the related Notice of
\n Competitive Bid Borrowing for such Competitive Bid Borrowing the
\n applicable conditions set forth in Article III, including, without
\n limitation, any loss (including loss of anticipated profits), cost or
\n expense incurred by reason of the liquidation or reemployment of
\n deposits or other funds acquired by such Lender to fund the Competitive
\n Bid Advance to be made by such Lender as part of such Competitive Bid
\n Borrowing when such Competitive Bid Advance, as a result of such
\n failure, is not made on such date.<\/p>\n
(b) Each Competitive Bid Borrowing shall be in an aggregate
\namount not less than $10,000,000 (or the Equivalent thereof in any Foreign
\nCurrency, determined as of the time of the applicable Notice of Competitive Bid
\nBorrowing) or an integral multiple of $1,000,000 (or the Equivalent thereof in
\nany Foreign Currency, determined as of the time of the applicable Notice of
\nCompetitive Bid Borrowing) in excess thereof and, following the making of each
\nCompetitive Bid Borrowing, the Borrower that has borrowed such Competitive Bid
\nBorrowing shall be in compliance with the limitation set forth in the proviso to
\nthe first sentence of subsection (a) above.<\/p>\n
(c) Within the limits and on the conditions set forth in this
\nSection 2.03, any Borrower may from time to time borrow under this Section 2.03,
\nrepay or prepay pursuant to subsection (d) below, and reborrow under this
\nSection 2.03, provided that a Competitive Bid Borrowing shall not be made within
\nthree Business Days of the date of any other Competitive Bid Borrowing.<\/p>\n
23<\/p>\n
(d) Any Borrower that has borrowed through a Competitive Bid
\nBorrowing shall repay to the Agent for the account of each Lender that has made
\na Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
\n(such maturity date being that specified by such Borrower for repayment of such
\nCompetitive Bid Advance in the related Notice of Competitive Bid Borrowing
\ndelivered pursuant to subsection (a)(i) above and provided in the Competitive
\nBid Note evidencing such Competitive Bid Advance), the then unpaid principal
\namount of such Competitive Bid Advance. Such Borrower shall have no right to
\nprepay any principal amount of any Competitive Bid Advance unless, and then only
\non the terms, specified by such Borrower for such Competitive Bid Advance in the
\nrelated Notice of Competitive Bid Borrowing delivered pursuant to subsection
\n(a)(i) above and set forth in the Competitive Bid Note evidencing such
\nCompetitive Bid Advance.<\/p>\n
(e) Each Borrower that has borrowed through a Competitive Bid
\nBorrowing shall pay interest on the unpaid principal amount of each Competitive
\nBid Advance comprising such Competitive Bid Borrowing from the date of such
\nCompetitive Bid Advance to the date the principal amount of such Competitive Bid
\nAdvance is repaid in full, at the rate of interest for such Competitive Bid
\nAdvance specified by the Lender making such Competitive Bid Advance in its
\nnotice with respect thereto delivered pursuant to subsection (a)(ii) above,
\npayable on the interest payment date or dates specified by such Borrower for
\nsuch Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
\ndelivered pursuant to subsection (a)(i) above, as provided in the Competitive
\nBid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
\nthe continuance of an Event of Default under Section 6.01(a), such Borrower
\nshall pay interest on the amount of unpaid principal of and interest on each
\nCompetitive Bid Advance owing to a Lender, payable in arrears on the date or
\ndates interest is payable thereon, at a rate per annum equal at all times to 1%
\nper annum above the rate per annum required to be paid on such Competitive Bid
\nAdvance under the terms of the Competitive Bid Note evidencing such Competitive
\nBid Advance unless otherwise agreed in such Competitive Bid Note.<\/p>\n
(f) The indebtedness of any Borrower resulting from each
\nCompetitive Bid Advance made to such Borrower as part of a Competitive Bid
\nBorrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
\npayable to the order of the Lender making such Competitive Bid Advance.<\/p>\n
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
\npay to the Agent for the account of each Lender a facility fee on the aggregate
\namount of such Lender’s Commitment from the date hereof in the case of each
\nInitial Lender and from the effective date specified in the Assumption Agreement
\nor the Assignment and Acceptance, as the case may be, pursuant to which it
\nbecame a Lender in the case of each other Lender until the Termination Date at a
\nrate per annum equal to the Applicable Percentage in effect from time to time,
\npayable in arrears quarterly on the last day of each March, June, September and
\nDecember, commencing December 31, 1999, and on the Termination Date.<\/p>\n
24<\/p>\n
(b) Agent’s Fees. The Company shall pay to the Agent for its
\nown account such fees, and at such times, as the Company and the Agent may
\nseparately agree.<\/p>\n
SECTION 2.05. Termination or Reduction of the Commitments. (a)
\nOptional Ratable Termination or Reduction. The Company shall have the right,
\nupon at least three Business Days’ notice to the Agent, to terminate in whole or
\nreduce ratably in part the unused portions of the respective Commitments of the
\nLenders, provided that each partial reduction shall be in an aggregate amount
\nnot less than $10,000,000 or an integral multiple of $1,000,000 in excess
\nthereof and provided further that the aggregate amount of the Commitments of the
\nLenders shall not be reduced to an amount that is less than the sum of the
\naggregate principal amount of the Competitive Bid Advances denominated in
\nDollars then outstanding plus the Equivalent in Dollars (determined as of the
\ndate of the notice of prepayment) of the aggregate principal amount of the
\nCompetitive Bid Advances denominated in Foreign Currencies then outstanding. The
\naggregate amount of the Commitments, once reduced as provided in this Section
\n2.05(a), may not be reinstated.<\/p>\n
(b) Non-Ratable Termination by Assignment. The Company shall
\nhave the right, upon at least ten Business Days’ written notice to the Agent
\n(which shall then give prompt notice thereof to the relevant Lender), to require
\nany Lender to assign, pursuant to and in accordance with the provisions of
\nSection 9.07, all of its rights and obligations under this Agreement and under
\nthe Notes to an Eligible Assignee selected by the Company; provided, however,
\nthat (i) no Event of Default shall have occurred and be continuing at the time
\nof such request and at the time of such assignment; (ii) the assignee shall have
\npaid to the assigning Lender the aggregate principal amount of, and any interest
\naccrued and unpaid to the date of such assignment on, the Note or Notes of such
\nLender; (iii) the Company shall have paid to the assigning Lender any and all
\nfacility fees and other fees payable to such Lender and all other accrued and
\nunpaid amounts owing to such Lender under any provision of this Agreement
\n(including, but not limited to, any increased costs or other additional amounts
\nowing under Section 2.10 and any indemnification for Taxes under Section 2.13)
\nas of the effective date of such assignment; and (iv) if the assignee selected
\nby the Company is not an existing Lender, such assignee or the Company shall
\nhave paid the processing and recordation fee required under Section 9.07(a) for
\nsuch assignment; provided further that the Company shall have no right to
\nreplace more than three Lenders in any calendar year pursuant to this Section
\n2.05(b); and provided further that the assigning Lender’s rights under Sections
\n2.10, 2.13 and 9.04, and its obligations under Section 8.05, shall survive such
\nassignment as to matters occurring prior to the date of assignment.<\/p>\n
(c) Non-Ratable Reduction. (i) The Company shall have the
\nright, at any time other than during any Rating Condition, upon at least ten
\nBusiness Days’ notice to a Lender (with a copy to the Agent), to terminate in
\nwhole such Lender’s Commitment (determined without giving effect to any
\nCompetitive Bid Reduction). Such termination shall be effective, (i) with
\nrespect to such Lender’s unused Commitment, on the date set forth in such
\nnotice, provided, however, that such date shall be no earlier than ten Business
\nDays after receipt of such notice and (ii) with respect to<\/p>\n
25<\/p>\n
each Advance outstanding to such Lender, on the last day of the then current
\nInterest Period relating to such Advance; provided further, however, that such
\ntermination shall not be effective, if, after giving effect to such termination,
\nthe Company would, under this Section 2.05(c), reduce the Lenders’ Commitments
\nin any calendar year by an amount in excess of the Commitments of any three
\nLenders or $480,000,000, whichever is greater on the date of such termination.
\nNotwithstanding the preceding proviso, the Company may terminate in whole the
\nCommitment of any Lender in accordance with the terms and conditions set forth
\nin Section 2.05(b) or 2.16(b). Upon termination of a Lender’s Commitment under
\nthis Section 2.05(c), the Company will pay or cause to be paid all principal of,
\nand interest accrued to the date of such payment on, Advances owing to such
\nLender and pay any facility fees or other fees payable to such Lender pursuant
\nto the provisions of Section 2.04, and all other amounts payable to such Lender
\nhereunder (including, but not limited to, any increased costs or other amounts
\nowing under Section 2.10 and any indemnification for Taxes under Section 2.13);
\nand upon such payments, the obligations of such Lender hereunder shall, by the
\nprovisions hereof, be released and discharged; provided, however, that such
\nLender’s rights under Sections 2.10, 2.13 and 9.04, and its obligations under
\nSection 8.05 shall survive such release and discharge as to matters occurring
\nprior to such date. The aggregate amount of the Commitments of the Lenders once
\nreduced pursuant to this Section 2.05(c) may not be reinstated.<\/p>\n
(ii) For purposes of this Section 2.05(c) only, the term
\n“Rating Condition” shall mean a period commencing with notice (a “Rating
\nCondition Notice”) by the Agent to the Company and the Lenders to the effect
\nthat the Agent has been informed that the rating of the senior public Debt of
\nthe Company is unsatisfactory under the standard set forth in the next sentence,
\nand ending with notice by the Agent to the Company and the Lenders to the effect
\nthat such condition no longer exists. The Agent shall give a Rating Condition
\nNotice promptly upon receipt from the Company or any Lender of notice stating,
\nin effect, that both of S&P and Moody’s (or any successor by merger or
\nconsolidation to the business of either thereof), respectively, then rate the
\nsenior public Debt of the Company lower than BBB- and Baa3. The Company agrees
\nto give notice to the Agent forthwith upon any change in a rating by either such
\norganization of the senior public Debt of the Company; the Agent shall have no
\nduty whatsoever to verify the accuracy of any such notice from the Company or
\nany Lender or to monitor independently the ratings of the senior public Debt of
\nthe Company and no Lender shall have any duty to give any such notice. The Agent
\nshall give notice to the Lenders and the Company as to the termination of a
\nRating Condition promptly upon receiving a notice from the Company to the Agent
\n(which notice the Agent shall promptly notify to the Lenders) stating that the
\nrating of the senior public Debt of the Company does not meet the standard set
\nforth in the second sentence of this clause (ii), and requesting that the Agent
\nnotify the Lenders of the termination of the Rating Condition. The Rating
\nCondition shall terminate upon the giving of such notice by the Agent.<\/p>\n
(d) Termination by a Lender. In the event that a Change of
\nControl occurs, each Lender may, by notice to the Company and the Agent given
\nnot later than 50 calendar days after<\/p>\n
26<\/p>\n
such Change of Control, terminate its Commitment, which Commitment shall be
\nterminated effective as of the later of (i) the date that is 60 calendar days
\nafter such Change of Control or (ii) the end of the Interest Period for any
\nAdvance outstanding at the time of such Change of Control or for any Advance
\nmade pursuant to the next sentence of this Section 2.05(d). Upon the occurrence
\nof a Change of Control, each Borrower’s right to make a Borrowing under this
\nAgreement shall be suspended for a period of 60 calendar days, except for
\nAdvances having an interest period ending not later than 90 calendar days after
\nsuch Change of Control. A notice of termination pursuant to this Section 2.05(d)
\nshall not have the effect of accelerating any outstanding Advance of such Lender
\nand the Notes of such Lender.<\/p>\n
(e) Mandatory Reduction. To the extent that the Company has
\nnot on or prior to March 31, 2000 reduced the aggregate Commitments to
\n$1,000,000,000 or less, on March 31, 2000 the aggregate Commitments shall be
\nreduced to $1,000,000,000 and the Commitment of each Lender shall be reduced
\nratably.<\/p>\n
SECTION 2.06. Repayment of Advances. (a) Revolving Credit
\nAdvances. Each Borrower shall repay to the Administrative Agent, for the ratable
\naccount of the Lenders, on the Termination Date the aggregate principal amount
\nof all Revolving Credit Advances made to it outstanding on such date.<\/p>\n
(b) Competitive Bid Advances. Each Borrower shall repay to the
\nAdministrative Agent, for the account of each Lender that has made a Competitive
\nBid Advance, the aggregate outstanding principal amount of each Competitive Bid
\nAdvance made to such Borrower and owing to such Lender on the earlier of (i) the
\nmaturity date therefor, specified in the related Notice of Competitive Bid
\nBorrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
\nDate.<\/p>\n
SECTION 2.07. Interest on Revolving Credit Advances. (a)
\nScheduled Interest. Each Borrower shall pay interest on the unpaid principal
\namount of each Revolving Credit Advance owing by such Borrower to each Lender
\nfrom the date of such Revolving Credit Advance until such principal amount shall
\nbe paid in full, at the following rates per annum:<\/p>\n
(i) Base Rate Advances. During such periods as such Revolving
\n Credit Advance is a Base Rate Advance, a rate per annum equal at all
\n times to the Base Rate in effect from time to time, payable in arrears
\n quarterly on the last day of each March, June, September and December
\n during such periods and on the date such Base Rate Advance shall be
\n paid in full.<\/p>\n
(ii) Eurocurrency Rate Advances. During such periods as such
\n Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
\n annum equal at all times during each Interest Period for such Revolving
\n Credit Advance to the sum of (x) the Eurocurrency Rate for such
\n Interest Period for such Revolving Credit Advance plus (y) the
\n Applicable Margin in effect from time to time, payable in arrears on
\n the last day of such Interest Period and, if<\/p>\n
27<\/p>\n
such Interest Period has a duration of more than three months, on each
\n day that occurs during such Interest Period every three months from the
\n first day of such Interest Period and on the date such Eurocurrency
\n Rate Advance shall be Converted or paid in full.<\/p>\n
(b) Default Interest. Upon the occurrence and during the
\ncontinuance of an Event of Default under Section 6.01(a), each Borrower shall
\npay interest on (i) the unpaid principal amount of each Revolving Credit Advance
\nowing by such Borrower to each Lender, payable in arrears on the dates referred
\nto in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
\n1% per annum above the rate per annum required to be paid on such Revolving
\nCredit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
\nfullest extent permitted by law, the amount of any interest, fee or other amount
\npayable hereunder by such Borrower that is not paid when due, from the date such
\namount shall be due until such amount shall be paid in full, payable in arrears
\non the date such amount shall be paid in full and on demand, at a rate per annum
\nequal at all times to 1% per annum above the rate per annum required to be paid
\non such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.<\/p>\n
SECTION 2.08. Interest Rate Determination. (a) Each Reference
\nBank agrees to furnish to the Agent timely information for the purpose of
\ndetermining each Eurocurrency Rate and each LIBO Rate if the applicable Telerate
\nPage is unavailable. If any one or more of the Reference Banks shall not furnish
\nsuch timely information to the Agent for the purpose of determining any such
\ninterest rate, the Agent shall determine such interest rate on the basis of
\ntimely information furnished by the remaining Reference Banks. The Agent shall
\ngive prompt notice to the Company and the Lenders of the applicable interest
\nrate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
\nrate, if any, furnished by each Reference Bank for the purpose of determining
\nthe interest rate under Section 2.07(a)(ii).<\/p>\n
(b) If, with respect to any Eurocurrency Rate Advances, the
\nMajority Lenders notify the Agent that (i) they are unable to obtain matching
\ndeposits in the London interbank market at or about 11:00 A.M. (London time) on
\nthe second Business Day before the making of a Borrowing in sufficient amounts
\nto fund their respective Revolving Credit Advances as part of such Borrowing
\nduring its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
\nfor such Advances will not adequately reflect the cost to such Majority Lenders
\nof making, funding or maintaining their respective Eurocurrency Rate Advances
\nfor such Interest Period, the Agent shall forthwith so notify each Borrower and
\nthe Lenders, whereupon (A) the Borrower will, on the last day of the then
\nexisting Interest Period therefor, (1) if such Eurocurrency Rate Advances are
\ndenominated in Dollars, either (x) prepay such Advances or (y) Convert such
\nAdvances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are
\ndenominated in any Major Currency, either (x) prepay such Advances or (y)
\nredenominate such Advances into an Equivalent amount of Dollars and Convert such
\nAdvances into Base Rate Advances, and (B) the obligation of the Lenders to make
\nEurocurrency Rate Advances in the same currency as such Eurocurrency Rate
\nAdvances<\/p>\n
28<\/p>\n
shall be suspended until the Agent shall notify each Borrower and the Lenders
\nthat the circumstances causing such suspension no longer exist.<\/p>\n
(c) If any Borrower, in requesting a Revolving Credit
\nBorrowing comprised of Eurocurrency Rate Advances, shall fail to select the
\nduration of the Interest Period for such Eurocurrency Rate Advances in
\naccordance with the provisions contained in the definition of “Interest Period”
\nin Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
\nand such Advances will (to the extent such Eurocurrency Rate Advances remain
\noutstanding on such day) automatically, on the last day of the then existing
\nInterest Period therefor, (i) if such Eurocurrency Rate Advances are denominated
\nin Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
\nAdvances are denominated in any Major Currency, be redenominated into an
\nEquivalent amount of Dollars and be Converted into Base Rate Advances.<\/p>\n
(d) Upon the occurrence and during the continuance of any
\nEvent of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
\n(to the extent such Eurocurrency Rate Advance remains outstanding on such day)
\nautomatically, on the last day of the then existing Interest Period therefor,
\n(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
\ninto a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
\ndenominated in any Major Currency, be redenominated into an Equivalent amount of
\nDollars and Converted into a Base Rate Advance and (ii) the obligation of the
\nLenders to make Eurocurrency Rate Advances shall be suspended.<\/p>\n
(e) If the applicable Telerate Page is unavailable and fewer
\nthan two Reference Banks furnish timely information to the Agent for determining
\nthe Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
\nRate Advances, as the case may be,<\/p>\n
(i) the Agent shall forthwith notify the relevant Borrower and
\n the Lenders that the interest rate cannot be determined for such
\n Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,<\/p>\n
(ii) with respect to Eurocurrency Rate Advances, each such
\n Advance will (to the extent such Eurocurrency Rate Advance remains
\n outstanding on such day) automatically, on the last day of the then
\n existing Interest Period therefor, (A) if such Eurocurrency Rate
\n Advance is denominated in Dollars, be prepaid by the applicable
\n Borrower or be automatically Converted into a Base Rate Advance and (B)
\n if such Eurocurrency Rate Advance is denominated in any Major Currency,
\n be prepaid by the applicable Borrower or be automatically redenominated
\n into an Equivalent amount of Dollars and Converted into a Base Rate
\n Advance (or if such Advance is then a Base Rate Advance, will continue
\n as a Base Rate Advance), and<\/p>\n
29<\/p>\n
(iii) the obligation of the Lenders to make Eurocurrency Rate
\n Advances or LIBO Rate Advances shall be suspended until the Agent shall
\n notify the Borrowers and the Lenders that the circumstances causing
\n such suspension no longer exist.<\/p>\n
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
\nOptional Prepayments. Each Borrower may, upon notice to the Agent stating the
\nproposed date and aggregate principal amount of the prepayment, given not later
\nthan 11:00 A.M. (New York City time) on the second Business Day prior to the
\ndate of such proposed prepayment, in the case of Eurocurrency Rate Advances, and
\nnot later than 11:00 A.M. (New York City time) on the day of such proposed
\nprepayment, in the case of Base Rate Advances, and, if such notice is given,
\nsuch Borrower shall, prepay the outstanding principal amount of the Revolving
\nCredit Advances comprising part of the same Revolving Credit Borrowing in whole
\nor ratably in part, together with accrued interest to the date of such
\nprepayment on the principal amount prepaid; provided, however, that (x) each
\npartial prepayment shall be in an aggregate principal amount not less than
\n$10,000,000 or the Equivalent thereof in a Major Currency (determined on the
\ndate notice of prepayment is given) or an integral multiple of $1,000,000 or the
\nEquivalent thereof in a Major Currency (determined on the date notice of
\nprepayment is given) in excess thereof and (y) in the event of any such
\nprepayment of a Eurocurrency Rate Advance other than on the last day of the
\nInterest Period therefor, such Borrower shall be obligated to reimburse the
\nLenders in respect thereof pursuant to Section 9.04(c). Each notice of
\nprepayment by a Designated Subsidiary shall be given to the Administrative Agent
\nthrough the Company.<\/p>\n
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A)
\nthe aggregate principal amount of all Advances denominated in Dollars then
\noutstanding plus (B) the Equivalent in Dollars (determined on the third Business
\nDay prior to such date) of the aggregate principal amount of all Advances
\ndenominated in Foreign Currencies then outstanding exceeds 103% of the aggregate
\nCommitments of the Lenders on such date, the Company and each other Borrower, if
\nany, shall thereupon promptly prepay the outstanding principal amount of any
\nAdvances owing by such Borrower in an aggregate amount sufficient to reduce such
\nsum to an amount not to exceed 100% of the aggregate Commitments of the Lenders
\non such date, together with any interest accrued to the date of such prepayment
\non the principal amounts prepaid and, in the case of any prepayment of a
\nEurocurrency Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date
\nother than the last day of an Interest Period or at its maturity, any additional
\namounts which such Borrower shall be obligated to reimburse to the Lenders in
\nrespect thereof pursuant to Section 9.04(c). The Agent shall give prompt notice
\nof any prepayment required under this Section 2.09(b)(i) to the Borrowers and
\nthe Lenders.<\/p>\n
(ii) If, on any date, the sum of (A) the Equivalent in Dollars
\nof the aggregate principal amount of all Eurocurrency Rate Advances denominated
\nin Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
\naggregate principal amount of all Competitive Bid Advances denominated in
\nForeign Currencies then outstanding, shall exceed 110% of<\/p>\n
30<\/p>\n
$500,000,000, the Company and each other Borrower shall prepay the outstanding
\nprincipal amount of any such Eurocurrency Rate Advances or any such LIBO Rate
\nAdvances owing by such Borrower, on the last day of the Interest Periods
\nrelating to such Advances, in an aggregate amount sufficient to reduce such sum
\nto an amount not to exceed $500,000,000, together with any interest accrued to
\nthe date of such prepayment on the principal amounts prepaid. The Agent shall
\ngive prompt notice of any prepayment required under this Section 2.09(b)(ii) to
\nthe Borrowers and the Lenders.<\/p>\n
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
\nintroduction of or any change in or in the interpretation of any law or
\nregulation or (ii) the compliance with any guideline or request from any central
\nbank or other governmental authority including, without limitation, any agency
\nof the European Union or similar monetary or multinational authority (whether or
\nnot having the force of law), there shall be any increase in the cost to any
\nLender of agreeing to make or making, funding or maintaining Eurocurrency Rate
\nAdvances or LIBO Rate Advances (excluding for purposes of this Section 2.10 any
\nsuch increased costs resulting from (i) Taxes or Other Taxes (as to which
\nSection 2.13 shall govern) and (ii) changes in the basis of taxation of overall
\nnet income or overall gross income by the United States or by the foreign
\njurisdiction or state under the laws of which such Lender is organized or has
\nits Applicable Lending Office or any political subdivision thereof), then the
\nBorrower of such Advances shall from time to time, upon demand by such Lender
\n(with a copy of such demand to the Agent), pay to the Agent for the account of
\nsuch Lender additional amounts sufficient to compensate such Lender for such
\nincreased cost. A certificate as to the amount of such increased cost, submitted
\nto such Borrower and the Agent by such Lender, shall be conclusive and binding
\nfor all purposes, absent manifest error.<\/p>\n
(b) If any Lender determines that compliance with any law or
\nregulation or any guideline or request from any central bank or other
\ngovernmental authority including, without limitation, any agency of the European
\nUnion or similar monetary or multinational authority (whether or not having the
\nforce of law) affects or would affect the amount of capital required or expected
\nto be maintained by such Lender or any corporation controlling such Lender and
\nthat the amount of such capital is increased by or based upon the existence of
\nsuch Lender’s commitment to lend hereunder and other commitments of this type,
\nthen, upon demand by such Lender (with a copy of such demand to the Agent), the
\nCompany shall pay to the Agent for the account of such Lender, from time to time
\nas specified by such Lender, additional amounts sufficient to compensate such
\nLender or such corporation in the light of such circumstances, to the extent
\nthat such Lender reasonably determines such increase in capital to be allocable
\nto the existence of such Lender’s commitment to lend hereunder. A certificate as
\nto such amounts submitted to the Company and the Agent by such Lender shall be
\nconclusive and binding for all purposes, absent manifest error.<\/p>\n
(c) Any Lender claiming any additional amounts payable
\npursuant to this Section 2.10 shall, upon the written request of the Company
\ndelivered to such Lender and the Agent, assign, pursuant to and in accordance
\nwith the provisions of Section 9.07, all of its rights and obligations<\/p>\n
31<\/p>\n
under this Agreement and under the Notes to an Eligible Assignee selected by the
\nCompany; provided, however, that (i) no Default shall have occurred and be
\ncontinuing at the time of such request and at the time of such assignment; (ii)
\nthe assignee shall have paid to the assigning Lender the aggregate principal
\namount of, and any interest accrued and unpaid to the date of such assignment
\non, the Note or Notes of such Lender; (iii) the Company shall have paid to the
\nassigning Lender any and all facility fees and other fees payable to such Lender
\nand all other accrued and unpaid amounts owing to such Lender under any
\nprovision of this Agreement (including, but not limited to, any increased costs
\nor other additional amounts owing under this Section 2.10, and any
\nindemnification for Taxes under Section 2.13) as of the effective date of such
\nassignment and (iv) if the assignee selected by the Company is not an existing
\nLender, such assignee or the Company shall have paid the processing and
\nrecordation fee required under Section 9.07(a) for such assignment; provided
\nfurther that the assigning Lender’s rights under Sections 2.10, 2.13 and 9.04,
\nand its obligations under Section 8.05, shall survive such assignment as to
\nmatters occurring prior to the date of assignment.<\/p>\n
SECTION 2.11. Illegality. Notwithstanding any other provision
\nof this Agreement, if any Lender shall notify the Agent that the introduction of
\nor any change in or in the interpretation of any law or regulation makes it
\nunlawful, or any central bank or other governmental authority asserts that it is
\nunlawful, for any Lender or its Eurocurrency Lending Office to perform its
\nobligations hereunder to make Eurocurrency Rate Advances in Dollars or any Major
\nCurrency or LIBO Rate Advances in Dollars or in any Foreign Currency or to fund
\nor maintain Eurocurrency Rate Advances in Dollars or in any Major Currency or
\nLIBO Rate Advances in Dollars or in any Foreign Currency hereunder, (a) each
\nsuch Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be,
\nwill automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
\nLIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
\nAdvance or an Advance that bears interest at the rate set forth in Section
\n2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
\nLIBO Rate Advance is denominated in any Foreign Currency, be redenominated into
\nan Equivalent amount of Dollars and Converted into a Base Rate Advance or an
\nAdvance that bears interest at the rate set forth in Section 2.07(a)(i), as the
\ncase may be, and (b) the obligation of the Lenders to make such Eurocurrency
\nRate Advances or such LIBO Rate Advances shall be suspended until the Agent
\nshall notify the Borrower and the Lenders that the circumstances causing such
\nsuspension no longer exist.<\/p>\n
SECTION 2.12. Payments and Computations. (a) Each Borrower
\nshall make each payment hereunder and under any Notes, except with respect to
\nprincipal of, interest on, and other amounts relating to, Advances denominated
\nin a Foreign Currency, not later than 11:00 A.M. (New York City time) on the day
\nwhen due in Dollars to the Agent at the applicable Agent’s Account in same day
\nfunds. Each Borrower shall make each payment hereunder and under any Notes with
\nrespect to principal of, interest on, and other amounts relating to Advances
\ndenominated in a Foreign Currency not later than 12:00 Noon (at the Payment
\nOffice for such Foreign Currency) on the day when due in such Foreign Currency
\nto the Agent in same day funds by deposit of such funds to the<\/p>\n
32<\/p>\n
applicable Agent’s Account. The Agent will promptly thereafter cause to be
\ndistributed like funds relating to the payment of principal or interest or
\nfacility fees ratably (other than amounts payable pursuant to Section 2.03,
\n2.05(b), 2.05(c), 2.10, 2.13, 2.16 or 9.04(c)) to the Lenders for the account of
\ntheir respective Applicable Lending Offices, and like funds relating to the
\npayment of any other amount payable to any Lender to such Lender for the account
\nof its Applicable Lending Office, in each case to be applied in accordance with
\nthe terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
\nand recording of the information contained therein in the Register pursuant to
\nSection 9.07(c), from and after the effective date specified in such Assignment
\nand Acceptance, the Agent shall make all payments hereunder and under any Notes
\nin respect of the interest assigned thereby to the Lender assignee thereunder,
\nand the parties to such Assignment and Acceptance shall make all appropriate
\nadjustments in such payments for periods prior to such effective date directly
\nbetween themselves. Upon any Assuming Lender becoming a Lender hereunder as a
\nresult of the effectiveness of an extension of the Termination Date pursuant to
\nSection 2.16, and upon the Agent’s receipt of such Lender’s Assumption Agreement
\nand recording the information contained therein in the Register, from and after
\nthe Increase Date or the Extension Date, as the case may be, the Agent shall
\nmake all payments hereunder and under any Notes in respect of the interest
\nassumed thereby to the Assuming Lender.<\/p>\n
(b) All computations of interest based on the Base Rate and of
\nfacility fees shall be made by the Agent on the basis of a year of 365 or 366
\ndays, as the case may be, all computations of interest based on the Eurocurrency
\nRate or the Federal Funds Rate shall be made by the Agent on the basis of a year
\nof 360 days and all computations in respect of Competitive Bid Advances shall be
\nmade by the Agent or the Sub-Agent, as the case may be, as specified in the
\napplicable Notice of Competitive Bid Borrowing (or, in each case of Advances
\ndenominated in Foreign Currencies where market practice differs, in accordance
\nwith market practice), in each case for the actual number of days (including the
\nfirst day but excluding the last day) occurring in the period for which such
\ninterest or facility fees are payable. Each determination by the Agent of an
\ninterest rate hereunder shall be conclusive and binding for all purposes, absent
\nmanifest error.<\/p>\n
(c) Whenever any payment hereunder or under the Notes shall be
\nstated to be due on a day other than a Business Day, such payment shall be made
\non the next succeeding Business Day, and such extension of time shall in such
\ncase be included in the computation of payment of interest or facility fee, as
\nthe case may be; provided, however, that, if such extension would cause payment
\nof interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
\nto be made in the next following calendar month, such payment shall be made on
\nthe next preceding Business Day.<\/p>\n
(d) Unless the Agent shall have received notice from any
\nBorrower prior to the date on which any payment is due to the Lenders hereunder
\nthat such Borrower will not make such payment in full, the Agent may assume that
\nsuch Borrower has made such payment in full to the Agent on such date and the
\nAgent may, in reliance upon such assumption, cause to be distributed<\/p>\n
33<\/p>\n
to each Lender on such due date an amount equal to the amount then due such
\nLender. If and to the extent such Borrower shall not have so made such payment
\nin full to the Agent, each Lender shall repay to the Agent forthwith on demand
\nsuch amount distributed to such Lender together with interest thereon, for each
\nday from the date such amount is distributed to such Lender until the date such
\nLender repays such amount to the Agent, at (i) the Federal Funds Rate in the
\ncase of Advances denominated in Dollars or (ii) the cost of funds incurred by
\nthe Agent in respect of such amount in the case of Advances denominated in
\nForeign Currencies.<\/p>\n
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
\n(including the Company in its capacity as a guarantor under Article VII hereof)
\nhereunder or under the Notes shall be made, in accordance with Section 2.12,
\nfree and clear of and without deduction for any and all present or future taxes,
\nlevies, imposts, deductions, charges or withholdings, and all liabilities with
\nrespect thereto, excluding, in the case of each Lender and the Agent, net income
\ntaxes imposed by the United States and taxes imposed on its overall net income,
\nand franchise taxes imposed on it in lieu of net income taxes, by the
\njurisdiction under the laws of which such Lender or the Agent (as the case may
\nbe) is organized or any political subdivision thereof and, in the case of each
\nLender, taxes imposed on its overall net income, and franchise taxes imposed on
\nit in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable
\nLending Office or any political subdivision thereof (all such non-excluded
\ntaxes, levies, imposts, deductions, charges, withholdings and liabilities in
\nrespect of payments hereunder or under the Notes being hereinafter referred to
\nas “Taxes”). If any Borrower (including the Company in its capacity as a
\nguarantor under Article VII hereof) shall be required by law to deduct any Taxes
\nfrom or in respect of any sum payable hereunder or under any Note to any Lender
\nor the Agent, (i) the sum payable shall be increased as may be necessary so that
\nafter making all required deductions (including deductions applicable to
\nadditional sums payable under this Section 2.13) such Lender or the Agent (as
\nthe case may be) receives an amount equal to the sum it would have received had
\nno such deductions been made, (ii) such Borrower shall make such deductions and
\n(iii) such Borrower shall pay the full amount deducted to the relevant taxation
\nauthority or other authority in accordance with applicable law.<\/p>\n
(b) In addition, each Borrower agrees to pay any present or
\nfuture stamp or documentary taxes or any other excise or property taxes, charges
\nor similar levies that arise from any payment made hereunder or under the Notes
\nor from the execution, delivery or registration of, performing under, or
\notherwise with respect to, this Agreement or the Notes (hereinafter referred to
\nas “Other Taxes”).<\/p>\n
(c) Each Borrower shall indemnify each Lender and the Agent
\nfor the full amount of Taxes or Other Taxes (including, without limitation, any
\ntaxes imposed by any jurisdiction on amounts payable under this Section 2.13)
\nimposed on or paid by such Lender or the Agent (as the case may be) and any
\nliability (including penalties, interest and expenses) arising therefrom or with
\nrespect thereto; provided, however, that a Borrower shall not be obligated to
\npay any amounts in respect of penalties, interest or expenses pursuant to this
\nparagraph that are payable solely as a result<\/p>\n
34<\/p>\n
of (i) the failure on the part of the pertinent Lender or the Agent to pay over
\nthose amounts received from the Borrowers under this clause (c) or (ii) the
\ngross negligence or willful misconduct on the part of the pertinent Lender or
\nthe Agent. This indemnification shall be made within 30 days from the date such
\nLender or the Agent (as the case may be) makes written demand therefor. Each
\nLender agrees to provide reasonably prompt notice to the Agent, the Company and
\nany Borrower of any imposition of Taxes or Other Taxes against such Lender;
\nprovided that failure to give such notice shall not affect such Lender’s rights
\nto indemnification hereunder. Each Lender agrees that it will, promptly upon a
\nrequest by the Company or a Borrower having made an indemnification payment
\nhereunder, furnish to the Company or such Borrower, as the case may be, such
\nevidence as is reasonably available to such Lender as to the payment of the
\nrelevant Taxes or Other Taxes, and that it will, if requested by the Company or
\nsuch Borrower, cooperate with the Company or such Borrower, as the case may be,
\nin its efforts to obtain a refund or similar relief in respect of such payment.<\/p>\n
(d) Within 30 days after the date of any payment of Taxes,
\neach Borrower shall furnish to the Agent, at its address referred to in Section
\n9.02, the original or a certified copy of a receipt evidencing payment thereof.
\nIn the case of any payment hereunder or under the Notes by or on behalf of any
\nBorrower through an account or branch outside the United States or by or on
\nbehalf of any Borrower by a payor that is not a United States person, if such
\nBorrower determines that no Taxes are payable in respect thereof, such Borrower
\nshall furnish, or shall cause such payor to furnish, to the Agent, at such
\naddress, an opinion of counsel acceptable to the Agent stating that such payment
\nis exempt from Taxes. For purposes of this subsection (d) and subsection (e),
\nthe terms “United States” and “United States person” shall have the meanings
\nspecified in Section 7701 of the Internal Revenue Code.<\/p>\n
(e) Each Lender organized under the laws of a jurisdiction
\noutside the United States, on or prior to the date of its execution and delivery
\nof this Agreement in the case of each Initial Lender and on the date of the
\nAssignment and Acceptance or the Assumption Agreement, as the case may be,
\npursuant to which it becomes a Lender in the case of each other Lender, and from
\ntime to time thereafter as requested in writing by any Borrower (but only so
\nlong as such Lender remains lawfully able to do so), shall provide the Agent and
\neach Borrower with two original Internal Revenue Service forms 1001 or 4224, as
\nappropriate, or any successor or other form prescribed by the Internal Revenue
\nService, certifying that such Lender is exempt from or entitled to a reduced
\nrate of United States withholding tax on payments pursuant to this Agreement or
\nthe Notes. In addition, each Lender further agrees to provide any Borrower with
\nany form or document as any Borrower may request which is required by any taxing
\nauthority outside the United States in order to secure an exemption from, or
\nreduction in the rate of, withholding tax. If the forms provided by a Lender at
\nthe time such Lender first becomes a party to this Agreement indicates a United
\nStates interest withholding tax rate in excess of zero, withholding tax at such
\nrate shall be considered excluded from Taxes unless and until such Lender
\nprovides the appropriate forms certifying that a lesser rate applies, whereupon
\nwithholding tax at such lesser rate only shall be considered excluded<\/p>\n
35<\/p>\n
from Taxes for periods governed by such form; provided, however, that, if at the
\ndate of the Assignment and Acceptance or the Assumption Agreement, as the case
\nmay be, pursuant to which a Lender becomes a party to this Agreement, such
\nLender was entitled to payments under subsection (a) in respect of United States
\nwithholding tax with respect to interest paid at such date, then, to such
\nextent, the term Taxes shall include (in addition to withholding taxes that may
\nbe imposed in the future or other amounts otherwise includable in Taxes) United
\nStates withholding tax, if any, applicable with respect to such Lender on such
\ndate. If any form or document referred to in this subsection (e) requires the
\ndisclosure of information, other than information necessary to compute the tax
\npayable and information required on the date hereof by Internal Revenue Service
\nform 1001 or 4224, that a Lender reasonably considers to be confidential, such
\nLender shall give notice thereof to each Borrower and shall not be obligated to
\ninclude in such form or document such confidential information.<\/p>\n
(f) For any period with respect to which a Lender has failed
\nto provide each Borrower with the appropriate form described in Section 2.13(e)
\n(other than if such failure is due to a change in law occurring subsequent to
\nthe date on which a form originally was required to be provided, or if such form
\notherwise is not required under the first sentence of subsection (e) above),
\nsuch Lender shall not be entitled to indemnification under Section 2.13(a) or
\n(c) with respect to Taxes imposed by the United States by reason of such
\nfailure; provided, however, that should a Lender become subject to Taxes because
\nof its failure to deliver a form required hereunder, each Borrower shall take
\nsuch steps as such Lender shall reasonably request to assist such Lender to
\nrecover such Taxes.<\/p>\n
(g) If any Borrower is required to pay any additional amount
\nto any Lender or to the Agent or on behalf of any of them to any taxing
\nauthority pursuant to this Section 2.13, such Lender shall, upon the written
\nrequest of the Company delivered to such Lender and the Agent, assign, pursuant
\nto and in accordance with the provisions of Section 9.07, all of its rights and
\nobligations under this Agreement and under the Notes to an Eligible Assignee
\nselected by the Company; provided, however, that (i) no Default shall have
\noccurred and be continuing at the time of such request and at the time of such
\nassignment; (ii) the assignee shall have paid to the assigning Lender the
\naggregate principal amount of, and any interest accrued and unpaid to the date
\nof such assignment on, the Note or Notes of such Lender; (iii) the Company shall
\nhave paid to the assigning Lender any and all facility fees and other fees
\npayable to such Lender and all other accrued and unpaid amounts owing to such
\nLender under any provision of this Agreement (including, but not limited to, any
\nincreased costs or other additional amounts owing under Section 2.10, and any
\nindemnification for Taxes under this Section 2.13) as of the effective date of
\nsuch assignment; and (iv) if the assignee selected by the Company is not an
\nexisting Lender, such assignee or the Company shall have paid the processing and
\nrecordation fee required under Section 9.07(a) for such assignment; provided
\nfurther that the assigning Lender’s rights under Sections 2.10, 2.13 and 9.04,
\nand its obligations under Section 8.05, shall survive such assignment as to
\nmatters occurring prior to the date of assignment.<\/p>\n
36<\/p>\n
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
\nobtain any payment (whether voluntary, involuntary, through the exercise of any
\nright of setoff, or otherwise) on account of the Revolving Credit Advances owing
\nto it (other than pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13, 2.16
\nor 9.04(c)) in excess of its ratable share of payments on account of the
\nRevolving Credit Advances obtained by all the Lenders, such Lender shall
\nforthwith purchase from the other Lenders such participations in the Revolving
\nCredit Advances owing to them as shall be necessary to cause such purchasing
\nLender to share the excess payment ratably with each of them; provided, however,
\nthat if all or any portion of such excess payment is thereafter recovered from
\nsuch purchasing Lender, such purchase from each Lender shall be rescinded and
\nsuch Lender shall repay to the purchasing Lender the purchase price to the
\nextent of such recovery together with an amount equal to such Lender’s ratable
\nshare (according to the proportion of (i) the amount of such Lender’s required
\nrepayment to (ii) the total amount so recovered from the purchasing Lender) of
\nany interest or other amount paid or payable by the purchasing Lender in respect
\nof the total amount so recovered. Each Borrower agrees that any Lender so
\npurchasing a participation from another Lender pursuant to this Section 2.14
\nmay, to the fullest extent permitted by law, exercise all its rights of payment
\n(including the right of setoff) with respect to such participation as fully as
\nif such Lender were the direct creditor of such Borrower in the amount of such
\nparticipation.<\/p>\n
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
\nshall be available (and each Borrower agrees that it shall use such proceeds)
\nfor general corporate purposes of such Borrower and its Subsidiaries, including,
\nwithout limitation, backstop of commercial paper.<\/p>\n
SECTION 2.16. Extension of Termination Date. (a) At least 45
\n(but no earlier than 60) days prior to the Termination Date then in effect and
\nprovided all representations and warranties are true and correct in all material
\nrespects and no Event of Default has occurred and is continuing, the Company
\nmay, at its option, by written notice to the Agent, request that the Lenders
\nextend the Termination Date for an additional 364 days from the Termination Date
\nthen in effect. Each Lender, in its sole discretion, shall consent or not
\nconsent to such extension and shall notify the Agent of its consent or
\nnonconsent to such extension within 20 Business Days of notice of such request
\nfrom the Agent. If all of the Lenders consent in writing, the then applicable
\nTermination Date shall, effective as at such Termination Date (the “Extension
\nDate”), be extended for a period of 364 days from such Extension Date.<\/p>\n
(b) If not all of the Lenders consent, pursuant to subsection
\n(a) of this Section 2.16, to an extension of the Termination Date then in effect
\n(the Lenders so consenting in writing being the “Consenting Lenders”, and any
\nLender not so consenting being a “Non-Consenting Lender”), the Company may:<\/p>\n
(i) arrange for one or more Consenting Lenders or other
\n Eligible Assignees as Assuming Lenders to assume, effective on the
\n Extension Date, any Non-Consenting Lender’s Commitment and all of the
\n obligations of such Lender under this Agreement thereafter<\/p>\n
37<\/p>\n
arising, and effective on such Extension Date, each such Consenting
\n Lender or such Assuming Lender will be substituted for such
\n Non-Consenting Lender under this Agreement; provided, however, that the
\n amount of the Commitment of any such Assuming Lender as a result of
\n such substitution shall in no event be less than $10,000,000; provided
\n further that (i) any such Consenting Lender or Assuming Lender shall
\n have paid to such Non-Consenting Lender the aggregate principal amount
\n of, and any interest accrued and unpaid to the date of the assignment
\n on, the Advances of such Non-Consenting Lender; (ii) the Company shall
\n have paid to such Non-Consenting Lender any and all facility fees and
\n other fees payable to such Non-Consenting Lender and all other accrued
\n and unpaid amounts owing to such Non-Consenting Lender under any
\n provision of this Agreement (including, but not limited to, any
\n increased costs or other additional amounts owing under Section 2.10,
\n and any indemnification for Taxes under this Section 2.13) as of the
\n effective date of such assignment; and (iii) with respect to any such
\n Assuming Lender, such Assuming Lender or the Company shall have paid
\n the applicable processing and recordation fee required under Section
\n 9.07(a) for such assignment; provided further that such Non-Consenting
\n Lender’s rights under Sections 2.10, 2.13 and 9.04, and its obligations
\n under Section 8.05, shall survive such substitution as to matters
\n occurring prior to the date of substitution; provided further that, on
\n or prior to the tenth day prior to the Extension Date, (x) any such
\n Assuming Lender shall have delivered to the Company and the Agent an
\n Assumption Agreement in substantially the form of Exhibit D hereto,
\n duly executed by such Assuming Lender, such Non-Consenting Lender and
\n the Company, (y) any such Consenting Bank shall have delivered
\n confirmation in writing satisfactory to the Agent as to its increased
\n Commitment and (z) each Non-Consenting Lender being replaced pursuant
\n to this clause (i) shall have delivered to the Agent any Revolving
\n Credit Note or Notes held by such Non-Consenting Lender; and provided
\n further that, if requested by any Assuming Lender, each Borrower, at
\n its own expense, shall have executed and delivered to the Agent no
\n later than 10:00 A.M. (New York City time) on the Extension Date,
\n Revolving Credit Notes payable to the order of each such Assuming
\n Lender, if any, dated as of the Extension Date and substantially in the
\n form of Exhibit A-1 hereto; or<\/p>\n
(ii) subject to the giving of notice to such Non-Consenting
\n Lender at least four days prior to the Extension Date, pay, prepay or
\n cause to be prepaid, on and effective as of the Extension Date, all
\n principal of, and interest accrued to the date of such payment on,
\n Advances and all other amounts owing to such Non-Consenting Lender
\n hereunder (including, but not limited to, any increased costs or other
\n additional amounts owing under Section 2.10 and any indemnification for
\n Taxes under Section 2.13) and terminate in whole any Non-Consenting
\n Lender’s Commitment, notwithstanding the provisions of Section 2.05;
\n and, upon such payment or prepayment, the obligations of such
\n Non-Consenting Lender hereunder shall, by the provisions hereof, be
\n released and discharged; provided, however, that such Non-Consenting
\n Lender’s rights under Sections 2.10, 2.13 and 9.04, and its<\/p>\n
38<\/p>\n
obligations under Section 8.05 shall survive such release and discharge
\n as to matters occurring prior to the Extension Date.<\/p>\n
(c) In the event that, on or prior to the then applicable
\nExtension Date, all NonConsenting Lenders shall have been superseded by
\nConsenting Lenders or Assuming Lenders or shall have had their Commitments
\nterminated pursuant to subsection (b)(i) or (b)(ii) above, the Termination Date
\nthen in effect shall be extended for the additional one-year period as described
\nin subsection (a) above, each Non-Consenting Lender shall have no further
\nCommitment hereunder, and each Assuming Lender, if any, shall thereafter be
\nsubstituted as a party to this Agreement and be a Lender for the purposes of
\nthis Agreement, without any further acknowledgment by or the consent of the
\nLenders. The Agent shall thereupon promptly deliver the new Revolving Credit
\nNotes to the respective Assuming Lenders requesting such Notes and record in the
\nRegister the relevant information with respect to each Consenting Lender and
\neach such Assuming Lender.<\/p>\n
(d) In the event that (x) as to a Non-Consenting Lender,
\nneither procedure contemplated by subsection (b)(i) or (b)(ii) above is
\nimplemented in a timely basis or (y) the Company shall, by written notice to the
\nAgent at least four days prior to the Extension Date, withdraw its request for
\nthe extension of the Termination Date then in effect, such request by the
\nCompany shall be deemed not to have been made, all actions theretofore taken
\nunder subsection (b)(i) or (b)(ii) above shall be deemed to be of no effect, the
\nAgent shall return any Revolving Credit Notes received from any Non-Consenting
\nLender to such Non-Consenting Lender and all the rights and obligations of the
\nparties shall continue as if no such request had been made.<\/p>\n
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain
\nin accordance with its usual practice an account or accounts evidencing the
\nindebtedness of each Borrower to such Lender resulting from each Revolving
\nCredit Advance owing to such Lender from time to time, including the amounts of
\nprincipal and interest payable and paid to such Lender from time to time
\nhereunder in respect of Revolving Credit Advances. Each Borrower agrees that
\nupon request of any Lender to such Borrower (with a copy of such notice to the
\nAgent) that such Lender receive a Revolving Credit Note to evidence (whether for
\npurposes of pledge, enforcement or otherwise) the Revolving Credit Advances
\nowing to, or to be made by, such Lender, such Borrower shall promptly execute
\nand deliver to such Lender a Revolving Credit Note payable to the order of such
\nLender in a principal amount up to the Commitment of such Lender.<\/p>\n
(b) The Register maintained by the Agent pursuant to Section
\n9.07(d) shall include a control account, and a subsidiary account for each
\nLender, in which accounts (taken together) shall be recorded (i) the date and
\namount of each Borrowing made hereunder, the Type of Advances comprising such
\nBorrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
\nterms of each Assumption Agreement and each Assignment and Acceptance delivered
\nto and accepted by it, (iii) the amount of any principal or interest due and
\npayable or to become due and<\/p>\n
39<\/p>\n
payable from each Borrower to each Lender hereunder and (iv) the amount of any
\nsum received by the Agent from each Borrower hereunder and each Lender’s share
\nthereof.<\/p>\n
(c) Entries made in good faith by the Agent in the Register
\npursuant to subsection (b) above, and by each Lender in its account or accounts
\npursuant to subsection (a) above, shall be prima facie evidence of the amount of
\nprincipal and interest due and payable or to become due and payable from the
\nBorrowers to, in the case of the Register, each Lender and, in the case of such
\naccount or accounts, such Lender, under this Agreement, absent manifest error;
\nprovided, however, that the failure of the Agent or such Lender to make an
\nentry, or any finding that an entry is incorrect, in the Register or such
\naccount or accounts shall not limit or otherwise affect the obligations of any
\nBorrower under this Agreement.<\/p>\n
ARTICLE III<\/p>\n
CONDITIONS TO EFFECTIVENESS AND LENDING<\/p>\n
SECTION 3.01. Conditions Precedent to Effectiveness of
\nSections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
\neffective on and as of the first date (the “Effective Date”) on which the
\nfollowing conditions precedent have been satisfied:<\/p>\n
(a) There shall have occurred no Material Adverse Change since
\nDecember 31, 1998.<\/p>\n
(b) There shall exist no action, suit, investigation,
\n litigation or proceeding affecting the Company or any of its
\n Subsidiaries pending or to the knowledge of the Company Threatened
\n before any court, governmental agency or arbitrator that (i) is
\n reasonably likely to have a Material Adverse Effect, other than the
\n matters described on Schedule 3.01(b) hereto (the “Disclosed
\n Litigation”) or (ii) purports to affect the legality, validity or
\n enforceability of this Agreement or any Note of the Company or the
\n consummation of the transactions contemplated hereby, and there shall
\n have been no adverse change in the status, or financial effect on the
\n Company or any of its Subsidiaries, of the Disclosed Litigation from
\n that described on Schedule 3.01(b) hereto.<\/p>\n
(c) The Company shall have paid all accrued fees and expenses
\n of the Agent and the Lenders in respect of this Agreement.<\/p>\n
(d) On the Effective Date, the following statements shall be
\n true and the Agent shall have received a certificate signed by a duly
\n authorized officer of the Company, dated the Effective Date, stating
\n that:<\/p>\n
40<\/p>\n
(i) The representations and warranties contained in
\n Section 4.01 are correct on and as of the Effective Date, and<\/p>\n
(ii) No event has occurred and is continuing that
\n constitutes a Default.<\/p>\n
(e) The Agent shall have received on or before the Effective
\n Date the following, each dated such day, in form and substance
\n satisfactory to the Agent:<\/p>\n
(i) The Revolving Credit Notes of the Company to the
\n order of the Lenders to the extent requested by any Lender
\n pursuant to Section 2.17.<\/p>\n
(ii) Certified copies of the resolutions of the Board
\n of Directors of the Company approving this Agreement and the
\n Notes of the Company, and of all documents evidencing other
\n necessary corporate action and governmental approvals, if any,
\n with respect to this Agreement and such Notes.<\/p>\n
(iii) A certificate of the Secretary or an Assistant
\n Secretary of the Company certifying the names and true
\n signatures of the officers of the Company authorized to sign
\n this Agreement and the Notes of the Company and the other
\n documents to be delivered hereunder.<\/p>\n
(iv) A favorable opinion of J. Edward Smith,
\n Assistant General Counsel of the Company, substantially in the
\n form of Exhibit G hereto and as to such other matters as any
\n Lender through the Agent may reasonably request.<\/p>\n
(v) A favorable opinion of Shearman & Sterling,
\n counsel for the Agent, substantially in the form of Exhibit I
\n hereto.<\/p>\n
(vi) Such other approvals, opinions or documents as
\n any Lender, through the Agent, may reasonably request.<\/p>\n
(f) The Company shall have terminated the commitments, and
\n paid in full all Debt, interest, fees and other amounts outstanding,
\n under (i) the $750,000,000 Credit Agreement dated as of June 30, 1995
\n (the “$750,000,000 Credit Agreement”) among the Company, the lenders
\n and arrangers parties thereto and Citibank, as administrative agent,
\n (ii) the $900,000,000 364 Day Backstop Credit Agreement dated as of
\n October 9, 1998 (the “Backstop Credit Agreement”) among the Borrower,
\n as borrower, the lenders and arrangers parties thereto and Citibank, as
\n administrative agent, and (iii) the $1,325,000,000 Credit Agreement
\n dated as of April 15, 1997 (the “Honeywell Credit Agreement”) among
\n Honeywell Inc., as borrower, Morgan Guaranty Trust Company of New York,
\n as documentation agent, Citicorp USA, Inc., as syndication agent, Chase
\n Securities Inc. and J.P.<\/p>\n
41<\/p>\n
Morgan Securities Inc., as co-arrangers, and The Chase Manhattan Bank,
\n as administrative agent, and each of the Lenders that is a party to
\n each such credit facility hereby waives, upon execution of this
\n Agreement, the three Business Days’ notice required by Section 2.05 of
\n the $750,000,000 Credit Agreement, Section 2.05 of the Backstop Credit
\n Agreement and Section 2.12 of the Honeywell Credit Agreement,
\n respectively, relating to the termination of commitments thereunder.<\/p>\n
(g) All of the conditions precedent to the Merger Agreement
\n (or as amended in a manner satisfactory to the Lenders) shall have been
\n satisfied, including, without limitation, expiration or termination of
\n the applicable waiting period under the Hart-Scott-Rodino Act and
\n receipt of all applicable approvals, and the merger contemplated
\n thereby shall have been effected.<\/p>\n
SECTION 3.02. Conditions Precedent to Initial Borrowing. The
\nobligation of each Lender to make an Advance on the occasion of the initial
\nBorrowing hereunder is subject to the following conditions precedent:<\/p>\n
(a) The Effective Date shall have occurred.<\/p>\n
(b) The Company shall have terminated all outstanding
\n commitments of lenders (and paid in full all outstanding debt under the
\n related credit agreements) which backstop commercial paper issuance,
\n other than commitments made by parties which are not Lenders hereunder.<\/p>\n
(c) The Company shall have paid all accrued fees and expenses
\n of the Agent (including the billed fees and expenses of counsel to the
\n Agent).<\/p>\n
SECTION 3.03. Initial Loan to Each Designated Subsidiary. The
\nobligation of each Lender to make an initial Advance to each Designated
\nSubsidiary following any designation of such Designated Subsidiary as a Borrower
\nhereunder pursuant to Section 9.08 is subject to the Agent’s receipt on or
\nbefore the date of such initial Advance of each of the following, in form and
\nsubstance satisfactory to the Agent and dated such date, and (except for the
\nRevolving Credit Notes) in sufficient copies for each Lender:<\/p>\n
(a) The Revolving Credit Notes of such Borrower to the order
\n of the Lenders to the extent requested by any Lender pursuant to
\n Section 2.17.<\/p>\n
(b) Certified copies of the resolutions of the Board of
\n Directors of such Borrower (with a certified English translation if the
\n original thereof is not in English) approving this Agreement and the
\n Notes of such Borrower, and of all documents evidencing other necessary<\/p>\n
42<\/p>\n
corporate action and governmental approvals, if any, with respect to
\n this Agreement and such Notes.<\/p>\n
(c) A certificate of the Secretary or an Assistant Secretary
\n of such Borrower certifying the names and true signatures of the
\n officers of such Borrower authorized to sign this Agreement and the
\n Notes of such Borrower and the other documents to be delivered
\n hereunder.<\/p>\n
(d) A certificate signed by a duly authorized officer of the
\n Company, dated as of the date of such initial Advance, certifying that
\n such Borrower shall have obtained all governmental and third party
\n authorizations, consents, approvals (including exchange control
\n approvals) and licenses required under applicable laws and regulations
\n necessary for such Borrower to execute and deliver this Agreement and
\n the Notes and to perform its obligations thereunder.<\/p>\n
(e) The Designation Letter of such Designated Subsidiary,
\n substantially in the form of Exhibit E hereto.<\/p>\n
(f) Evidence of the Process Agent’s acceptance of its
\n appointment pursuant to Section 9.13(a) as the agent of such Borrower,
\n substantially in the form of Exhibit F hereto.<\/p>\n
(g) A favorable opinion of counsel to such Designated
\n Subsidiary, dated the date of such initial Advance, substantially in
\n the form of Exhibit H hereto.<\/p>\n
(h) Such other approvals, opinions or documents as any Lender,
\n through the Agent, may reasonably request.<\/p>\n
SECTION 3.04. Conditions Precedent to Each Revolving Credit
\nBorrowing. The obligation of each Lender to make a Revolving Credit Advance on
\nthe occasion of each Revolving Credit Borrowing shall be subject to the
\nconditions precedent that the Effective Date shall have occurred and on the date
\nof such Revolving Credit Borrowing (a) the following statements shall be true
\n(and each of the giving of the applicable Notice of Revolving Credit Borrowing
\nand the acceptance by the Borrower requesting such Revolving Credit Borrowing of
\nthe proceeds of such Revolving Credit Borrowing shall constitute a
\nrepresentation and warranty by such Borrower that on the date of such Borrowing
\nsuch statements are true):<\/p>\n
(i) the representations and warranties of the Company
\n contained in Section 4.01 (except the representations set forth in the
\n last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
\n and (n) thereof) are correct on and as of the date of such Revolving
\n Credit Borrowing, before and after giving effect to such Revolving
\n Credit Borrowing and to the application of the proceeds therefrom, as
\n though made on and as of such date, and<\/p>\n
43<\/p>\n
additionally, if such Revolving Credit Borrowing shall have been
\n requested by a Designated Subsidiary, the representations and
\n warranties of such Designated Subsidiary contained in its Designation
\n Letter are correct on and as of the date of such Revolving Credit
\n Borrowing, before and after giving effect to such Revolving Credit
\n Borrowing and to the application of the proceeds therefrom, as though
\n made on and as of such date, and<\/p>\n
(ii) no event has occurred and is continuing, or would result
\n from such Revolving Credit Borrowing or from the application of the
\n proceeds therefrom, that constitutes a Default;<\/p>\n
and (b) the Agent shall have received such other approvals, opinions or
\ndocuments as any Lender through the Agent may reasonably request.<\/p>\n
SECTION 3.05. Conditions Precedent to Each Competitive Bid
\nBorrowing. The obligation of each Lender that is to make a Competitive Bid
\nAdvance on the occasion of a Competitive Bid Borrowing to make such Competitive
\nBid Advance as part of such Competitive Bid Borrowing is subject to the
\nconditions precedent that (i) the Agent shall have received the written
\nconfirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
\nor before the date of such Competitive Bid Borrowing, but prior to such
\nCompetitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
\npayable to the order of such Lender and substantially in the form of Exhibit A-2
\nhereto for each of the one or more Competitive Bid Advances to be made by such
\nLender as part of such Competitive Bid Borrowing, in a principal amount equal to
\nthe principal amount of the Competitive Bid Advance to be evidenced thereby and
\notherwise on such terms as were agreed to for such Competitive Bid Advance in
\naccordance with Section 2.03, and (iii) on the date of such Competitive Bid
\nBorrowing the following statements shall be true (and each of the giving of the
\napplicable Notice of Competitive Bid Borrowing and the acceptance by the
\nBorrower requesting such Competitive Bid Borrowing of the proceeds of such
\nCompetitive Bid Borrowing shall constitute a representation and warranty by such
\nBorrower that on the date of such Competitive Bid Borrowing such statements are
\ntrue):<\/p>\n
(a) the representations and warranties of the Company
\n contained in Section 4.01 (except the representations set forth in the
\n last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
\n and (n) thereof) are correct on and as of the date of such Competitive
\n Bid Borrowing, before and after giving effect to such Competitive Bid
\n Borrowing and to the application of the proceeds therefrom, as though
\n made on and as of such date, and, if such Competitive Bid Borrowing
\n shall have been requested by a Designated Subsidiary, the
\n representations and warranties of such Designated Subsidiary contained
\n in its Designation Letter are correct on and as of the date of such
\n Competitive Bid Borrowing, before and after giving effect to such
\n Competitive Bid Borrowing and to the application of the proceeds
\n therefrom, as though made on and as of such date,<\/p>\n
44<\/p>\n
(b) no event has occurred and is continuing, or would result
\n from such Competitive Bid Borrowing or from the application of the
\n proceeds therefrom, that constitutes a Default, and<\/p>\n
(c) no event has occurred and no circumstance exists as a
\n result of which the information concerning such Borrower that has been
\n provided to the Agent and each Lender by such Borrower in connection
\n herewith would include an untrue statement of a material fact or omit
\n to state any material fact necessary to make the statements contained
\n therein, in the light of the circumstances under which they were made,
\n not misleading,<\/p>\n
and (iv) the Agent shall have received such other approvals, opinions or
\ndocuments as any Lender through the Agent may reasonably request.<\/p>\n
SECTION 3.06. Determinations Under Section 3.01. For purposes
\nof determining compliance with the conditions specified in Section 3.01, each
\nLender shall be deemed to have consented to, approved or accepted or to be
\nsatisfied with each document or other matter required thereunder to be consented
\nto or approved by or acceptable or satisfactory to the Lenders unless an officer
\nof the Agent responsible for the transactions contemplated by this Agreement
\nshall have received notice from such Lender prior to the date that the Company,
\nby notice to the Lenders, designates as the proposed Effective Date, specifying
\nits objection thereto. The Agent shall promptly notify the Lenders of the
\noccurrence of the Effective Date.<\/p>\n
ARTICLE IV<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01. Representations and Warranties of the Company. The
\nCompany represents and warrants as follows:<\/p>\n
(a) The Company is a corporation duly organized, validly
\n existing and in good standing under the laws of the State of Delaware.<\/p>\n
(b) The execution, delivery and performance by the Company of
\n this Agreement and the Notes of the Company, and the consummation of
\n the transactions contemplated hereby, are within the Company’s
\n corporate powers, have been duly authorized by all necessary corporate
\n action, and do not and will not cause or constitute a violation of any
\n provision of law or regulation or any provision of the Certificate of
\n Incorporation or By-Laws of the Company or result in the breach of, or
\n constitute a default or require any consent under, or result in the
\n creation of any lien, charge or encumbrance upon any of the properties,
\n revenues, or assets of the Company pursuant to, any indenture or other
\n agreement or<\/p>\n
45<\/p>\n
instrument to which the Company is a party or by which the Company or
\n its property may be bound or affected.<\/p>\n
(c) No authorization, consent, approval (including any
\n exchange control approval), license or other action by, and no notice
\n to or filing or registration with, any governmental authority,
\n administrative agency or regulatory body or any other third party is
\n required for the due execution, delivery and performance by the Company
\n of this Agreement or the Notes of the Company.<\/p>\n
(d) This Agreement has been, and each of the Notes when
\n delivered hereunder will have been, duly executed and delivered by the
\n Company. This Agreement is, and each of the Notes of the Company when
\n delivered hereunder will be, the legal, valid and binding obligation of
\n the Company enforceable against the Company in accordance with their
\n respective terms, except to the extent that such enforcement may be
\n limited by applicable bankruptcy, insolvency and other similar laws
\n affecting creditors’ rights generally.<\/p>\n
(e) The Consolidated balance sheet of the Company and its
\n Consolidated Subsidiaries as at December 31, 1998, and the related
\n Consolidated statements of income and cash flows of the Company and its
\n Consolidated Subsidiaries for the fiscal year then ended (together with
\n the notes to the financial statements of the Company and its
\n Consolidated Subsidiaries and the Consolidated statements of cash flows
\n of the Company and its Consolidated Subsidiaries), accompanied by an
\n opinion of one or more nationally recognized firms of independent
\n public accountants, and the Consolidated balance sheet of the Company
\n and its Consolidated Subsidiaries as at June 30, 1999, and the related
\n Consolidated statements of income and cash flows of the Company and its
\n Consolidated Subsidiaries for the six months then ended, duly certified
\n by the principal financial officer of the Company, copies of which have
\n been furnished to each Lender, are materially complete and correct, and
\n fairly present, subject, in the case of said balance sheet as at June
\n 30, 1999, and said statements of income and cash flows for the six
\n months then ended, to year-end audit adjustments, the Consolidated
\n financial condition of the Company and its Consolidated Subsidiaries as
\n at such dates and the Consolidated results of the operations of the
\n Company and its Consolidated Subsidiaries for the periods ended on such
\n dates, all in accordance with GAAP consistently applied, except as
\n otherwise noted therein; the Company and its Consolidated Subsidiaries
\n do not have on such date any material contingent liabilities,
\n liabilities for taxes, unusual forward or long-term commitments or
\n unrealized or anticipated losses from any unfavorable commitments,
\n except as referred to or reflected or provided for in such balance
\n sheet or the notes thereto as at such date. Since December 31, 1998,
\n there has been no Material Adverse Change.<\/p>\n
(f) There is no action, suit, investigation, litigation or
\n proceeding, including, without limitation, any Environmental Action,
\n pending or to the knowledge of the Company<\/p>\n
46<\/p>\n
Threatened affecting the Company or any of its Subsidiaries before any
\n court, governmental agency or arbitrator that (i) is reasonably likely
\n to have a Material Adverse Effect (other than the Disclosed
\n Litigation), or (ii) purports to affect the legality, validity or
\n enforceability of this Agreement or any Note or the consummation of the
\n transactions contemplated hereby, and there has been no adverse change
\n in the status, or financial effect on the Company or any of its
\n Subsidiaries, of the Disclosed Litigation from that described on
\n Schedule 3.01(b) hereto.<\/p>\n
(g) Following application of the proceeds of each Advance, not
\n more than 25 percent of the value of the assets (either of the Borrower
\n of such Advance or of such Borrower and its Subsidiaries on a
\n Consolidated basis) subject to the provisions of Section 5.02(a) or
\n subject to any restriction contained in any agreement or instrument
\n between such Borrower and any Lender or any Affiliate of any Lender
\n relating to Debt and within the scope of Section 6.01(e) will be margin
\n stock (within the meaning of Regulation U issued by the Board of
\n Governors of the Federal Reserve System).<\/p>\n
(h) The Company and each wholly-owned direct Subsidiary of the
\n Company have, in the aggregate, met their minimum funding requirements
\n under ERISA with respect to their Plans in all material respects and
\n have not incurred any material liability to the PBGC, other than for
\n the payment of premiums, in connection with such Plans.<\/p>\n
(i) No ERISA Event has occurred or is reasonably expected to
\n occur with respect to any Plan of the Company or any of its ERISA
\n Affiliates that has resulted in or is reasonably likely to result in a
\n material liability of the Company or any of its ERISA Affiliates.<\/p>\n
(j) The Schedules B (Actuarial Information) to the 1998 annual
\n reports (Form 5500 Series) with respect to each Plan of the Company or
\n any of its ERISA Affiliates, copies of which have been filed with the
\n Internal Revenue Service (and which will be furnished to any Bank
\n through the Administrative Agent upon the request of such Bank through
\n the Administrative Agent to the Company), are complete and accurate in
\n all material respects and fairly present in all material respects the
\n funding status of such Plans at such date, and since the date of each
\n such Schedule B there has been no material adverse change in funding
\n status.<\/p>\n
(k) Neither the Company nor any of its ERISA Affiliates has
\n incurred or reasonably expects to incur any Withdrawal Liability to any
\n Multiemployer Plan in an annual amount exceeding 6% of Net Tangible
\n Assets of the Company and its Consolidated Subsidiaries.<\/p>\n
47<\/p>\n
(l) Neither the Company nor any of its ERISA Affiliates has
\n been notified by the sponsor of a Multiemployer Plan that such
\n Multiemployer Plan is in reorganization or has been terminated, within
\n the meaning of Title IV of ERISA. No such Multiemployer Plan is
\n reasonably expected to be in reorganization or to be terminated, within
\n the meaning of Title IV of ERISA, in a reorganization or termination
\n which might reasonably be expected to result in a liability of the
\n Company in an amount in excess of $5,000,000.<\/p>\n
(m) The Company is not, and immediately after the application
\n by the Company of the proceeds of each Loan will not be, (a) an
\n “investment company” within the meaning of the Investment Company Act
\n of 1940, as amended, or (b) a “holding company” within the meaning of
\n the Public Utility Holding Company Act of 1935, as amended.<\/p>\n
(n) To the best of the Company’s knowledge, the operations and
\n properties of the Company and its Subsidiaries taken as a whole comply
\n in all material respects with all Environmental Laws, all necessary
\n Environmental Permits have been applied for or have been obtained and
\n are in effect for the operations and properties of the Company and its
\n Subsidiaries and the Company and its Subsidiaries are in compliance in
\n all material respects with all such Environmental Permits. To the best
\n of the Company’s knowledge no circumstances exist that would be
\n reasonably likely to form the basis of an Environmental Action against
\n the Company or any of its Subsidiaries or any of their properties that
\n could have a Material Adverse Effect.<\/p>\n
(i) The Company has (i) initiated a review and assessment of
\n all areas within its and each of its Subsidiaries’ business and
\n operations (including those affected by suppliers, vendors and
\n customers) that could be adversely affected by the risk that computer
\n applications used by the Company or any of its Subsidiaries (or
\n suppliers, vendors and customers) may be unable to recognize and
\n perform properly date sensitive functions involving certain dates prior
\n to and any date after December 31, 1999 (the “Year 2000 Problem”), (ii)
\n developed a plan and timetable for addressing the Year 2000 Problem on
\n a timely basis and (iii) to date, implemented that plan in accordance
\n with such timetable. Based on the foregoing, the Company believes that
\n all computer applications (including those of its suppliers, vendors
\n and customers) that are material to its or any of its Subsidiaries’
\n business and operations are reasonably expected on a timely basis to be
\n able to perform properly date-sensitive functions for all dates before,
\n on and after January 1, 2000, except to the extent that a failure to do
\n so could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
48<\/p>\n
ARTICLE V<\/p>\n
COVENANTS OF THE BORROWER<\/p>\n
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
\nremain unpaid or any Lender shall have any Commitment hereunder, the Company
\nwill:<\/p>\n
(a) Compliance with Laws, Etc. Comply, and cause each
\n Designated Subsidiary to comply with all applicable laws, rules,
\n regulations and orders, such compliance to include, without limitation,
\n compliance with ERISA and Environmental Laws as provided in Section
\n 5.01(j), if failure to comply with such requirements would have a
\n Material Adverse Effect.<\/p>\n
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
\n Designated Subsidiary to pay and discharge, all taxes, assessments and
\n governmental charges or levies imposed upon it or on its income or
\n profits or upon any of its property; provided, however, that neither
\n the Company nor any of its Subsidiaries shall be required to pay or
\n discharge any such tax, assessment, charge or claim that is being
\n contested in good faith and by proper proceedings and as to which
\n appropriate reserves are being maintained.<\/p>\n
(c) Maintenance of Insurance. Maintain, and cause each
\n Designated Subsidiary to maintain, insurance with responsible and
\n reputable insurance companies or associations in such amounts and
\n covering such risks as is usually carried by companies engaged in
\n similar businesses and owning similar properties in the same general
\n areas in which the Company or such Subsidiary operates.<\/p>\n
(d) Preservation of Corporate Existence, Etc. Preserve and
\n maintain, and cause each Designated Subsidiary to preserve and
\n maintain, its corporate existence and all its material rights (charter
\n and statutory) privileges and franchises; provided, however, that the
\n Company and each Designated Subsidiary may consummate any merger,
\n consolidation or sale of assets permitted under Section 5.02(b).<\/p>\n
(e) Visitation Rights. At any reasonable time and from time to
\n time, permit the Agent or any of the Lenders or any agents or
\n representatives thereof, to examine and make copies of and abstracts
\n from the records and books of account of, and visit the properties of,
\n the Company and any Designated Subsidiary, and to discuss the affairs,
\n finances and accounts of the Company and any Designated Subsidiary with
\n any of their officers or directors and with their independent certified
\n public accountants.<\/p>\n
(f) Keeping of Books. Keep, and cause each Designated
\n Subsidiary to keep, proper books of record and account, in which full
\n and correct entries shall be made of all<\/p>\n
49<\/p>\n
financial transactions and the assets and business of the Company and
\n each Designated Subsidiary in accordance with generally accepted
\n accounting principles in effect from time to time.<\/p>\n
(g) Maintenance of Properties, Etc. Maintain and preserve, and
\n cause each Designated Subsidiary to maintain and preserve, all of its
\n properties that are used or useful in the conduct of its business in
\n good working order and condition, ordinary wear and tear excepted;
\n provided, however, that neither the Company nor any of its Designated
\n Subsidiaries shall be required to maintain or preserve any property if
\n the failure to maintain or preserve such property shall not have a
\n Material Adverse Effect.<\/p>\n
(h) Reporting Requirements. Furnish to the Agent (with a copy
\n for each Lender) and the Agent shall promptly forward the same to the
\n Lenders:<\/p>\n
(i) as soon as available and in any event within 60
\n days after the end of each of the first three quarters of each
\n fiscal year of the Company, a Consolidated balance sheet of
\n the Company and its Consolidated Subsidiaries as of the end of
\n such quarter and a Consolidated statement of income and cash
\n flows of the Company and its Consolidated Subsidiaries for the
\n period commencing at the end of the previous fiscal year and
\n ending with the end of such quarter, setting forth in each
\n case in comparative form the corresponding figures as of the
\n corresponding date and for the corresponding period of the
\n preceding fiscal year, all in reasonable detail and certified
\n by the principal financial officer, principal accounting
\n officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company, subject, however, to year-end
\n auditing adjustments, which certificate shall include a
\n statement that such officer has no knowledge, except as
\n specifically stated, of any condition, event or act which
\n constitutes a Default;<\/p>\n
(ii) as soon as available and in any event within 120
\n days after the end of each fiscal year of the Company, a
\n Consolidated balance sheet of the Company and its Consolidated
\n Subsidiaries as of the end of such fiscal year and the related
\n Consolidated statements of income and cash flows of the
\n Company and its Consolidated Subsidiaries for such fiscal year
\n setting forth in each case in comparative form the
\n corresponding figures as of the close of and for the preceding
\n fiscal year, all in reasonable detail and accompanied by an
\n opinion of independent public accountants of nationally
\n recognized standing, as to said financial statements and a
\n certificate of the principal financial officer, principal
\n accounting officer, the Vice-President and Treasurer or an
\n Assistant Treasurer of the Company stating that such officer
\n has no knowledge, except as specifically stated, of any
\n condition, event or act which constitutes a Default;<\/p>\n
50<\/p>\n
(iii) copies of the Forms 8-K and 10-K reports (or
\n similar reports) which the Company is required to file with
\n the Securities and Exchange Commission of the United States of
\n America, promptly after the filing thereof;<\/p>\n
(iv) copies of each annual report, quarterly report,
\n special report or proxy statement mailed to substantially all
\n of the stockholders of the Company, promptly after the mailing
\n thereof to the stockholders;<\/p>\n
(v) immediate notice of the occurrence of any Default
\n of which the principal financial officer, principal accounting
\n officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company shall have knowledge;<\/p>\n
(vi) as soon as available and in any event within 15
\n days after the Company or any of its ERISA Affiliates knows or
\n has reason to know that any ERISA Event has occurred, a
\n statement of a senior officer of the Company with
\n responsibility for compliance with the requirements of ERISA
\n describing such ERISA Event and the action, if any, which the
\n Company or such ERISA Affiliate proposes to take with respect
\n thereto;<\/p>\n
(vii) at the request of any Lender, promptly after
\n the filing thereof with the Internal Revenue Service, copies
\n of Schedule B (Actuarial Information) to each annual report
\n (Form 5500 series) filed by the Company or any of its ERISA
\n Affiliates with respect to each Plan;<\/p>\n
(viii) promptly after receipt thereof by the Company
\n or any of its ERISA Affiliates, copies of each notice from the
\n PBGC stating its intention to terminate any Plan or to have a
\n trustee appointed to administer any Plan;<\/p>\n
(ix) promptly after such request, such other
\n documents and information relating to any Plan as any Lender
\n may reasonably request from time to time;<\/p>\n
(x) promptly and in any event within five Business
\n Days after receipt thereof by the Company or any of its ERISA
\n Affiliates from the sponsor of a Multiemployer Plan, copies of
\n each notice concerning (A) (x) the imposition of Withdrawal
\n Liability in an amount in excess of $5,000,000 with respect to
\n any one Multiemployer Plan or in an aggregate amount in excess
\n of $25,000,000 with respect to all such Multiemployer Plans
\n within any one calendar year or (y) the reorganization or
\n termination, within the meaning of Title IV of ERISA, of any
\n Multiemployer Plan that has resulted or might reasonably be
\n expected to result in Withdrawal Liability in an amount in
\n excess of $5,000,000 or of all such Multiemployer Plans that
\n has resulted or might reasonably be expected to result in<\/p>\n
51<\/p>\n
Withdrawal Liability in an aggregate amount in excess of
\n $25,000,000 within any one calendar year and (B) the amount of
\n liability incurred, or that may be incurred, by the Company or
\n any of its ERISA Affiliates in connection with any event
\n described in such subclause (x) or (y);<\/p>\n
(xi) promptly after the commencement thereof, notice
\n of all actions and proceedings before any court, governmental
\n agency or arbitrator affecting the Borrower or any Designated
\n Subsidiary of the type described in Section 4.01(f); and<\/p>\n
(xii) from time to time such further information
\n respecting the financial condition and operations of the
\n Company and its Subsidiaries as any Lender may from time to
\n time reasonably request.<\/p>\n
(i) Authorizations. Obtain, and cause each Designated
\n Subsidiary to obtain, at any time and from time to time all
\n authorizations, licenses, consents or approvals (including exchange
\n control approvals) as shall now or hereafter be necessary or desirable
\n under applicable law or regulations in connection with its making and
\n performance of this Agreement and, upon the request of any Lender,
\n promptly furnish to such Lender copies thereof.<\/p>\n
(j) Compliance with Environmental Laws. Comply, and cause each
\n of its Subsidiaries and all lessees and other Persons operating or
\n occupying its properties to comply, in all material respects, with all
\n applicable Environmental Laws and Environmental Permits; obtain and
\n renew and cause each of its Subsidiaries to obtain and renew all
\n Environmental Permits necessary for its operations and properties; and
\n conduct, and cause each of its Subsidiaries to conduct, any
\n investigation, study, sampling and testing, and undertake any cleanup,
\n removal, remedial or other action necessary to remove and clean up all
\n Hazardous Materials from any of its properties, in accordance with the
\n requirements of all Environmental Laws; provided, however, that neither
\n the Company nor any of its Subsidiaries shall be required to undertake
\n any such cleanup, removal, remedial or other action to the extent that
\n its obligation to do so is being contested in good faith and by proper
\n proceedings and appropriate reserves are being maintained with respect
\n to such circumstances.<\/p>\n
(k) Change of Control. If a Change of Control shall occur,
\n within ten calendar days after the occurrence thereof, provide the
\n Agent with notice thereof, describing therein in reasonable detail the
\n facts and circumstances giving rise to such Change in Control.<\/p>\n
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
\nunpaid or any Lender shall have any Commitment hereunder, the Company will not:<\/p>\n
52<\/p>\n
(a) Liens, Etc. Issue, assume or guarantee, or permit any of
\n its Subsidiaries owning Restricted Property to issue, assume or
\n guarantee, any Debt secured by Liens on or with respect to any
\n Restricted Property without effectively providing that its obligations
\n to the Lenders under this Agreement and any of the Notes shall be
\n secured equally and ratably with such Debt so long as such Debt shall
\n be so secured, except that the foregoing shall not apply to:<\/p>\n
(i) Liens affecting property of the Company or any of
\n its Subsidiaries existing on the Effective Date in effect as
\n of the date hereof or of any corporation existing at the time
\n it becomes a Subsidiary of the Company or at the time it is
\n merged into or consolidated with the Company or a Subsidiary
\n of the Company;<\/p>\n
(ii) Liens on property of the Company or its
\n Subsidiaries existing at the time of acquisition thereof or
\n incurred to secure the payment of all or part of the purchase
\n price thereof or to secure Debt incurred prior to, at the time
\n of or within 24 months after acquisition thereof for the
\n purpose of financing all or part of the purchase price
\n thereof;<\/p>\n
(iii) Liens on property of the Company or its
\n Subsidiaries (in the case of property that is, in the opinion
\n of the Board of Directors of the Company, substantially
\n unimproved for the use intended by the Company) to secure all
\n or part of the cost of improvement thereof, or to secure Debt
\n incurred to provide funds for any such purpose;<\/p>\n
(iv) Liens which secure only Debt owing by a
\n Subsidiary of the Company to the Company or to another
\n Subsidiary of the Company;<\/p>\n
(v) Liens in favor of the United States of America,
\n any State, any foreign country, or any department, agency,
\n instrumentality, or political subdivisions of any such
\n jurisdiction, to secure partial, progress, advance or other
\n payments pursuant to any contract or statute or to secure any
\n Debt incurred for the purpose of financing all or any part of
\n the purchase price or cost of constructing or improving the
\n property subject thereto, including, without limitation, Liens
\n to secure Debt of the pollution control or industrial revenue
\n bond type; or<\/p>\n
(vi) any extension, renewal or replacement (or
\n successive extensions, renewals or replacements), in whole or
\n in part, of any Lien referred to in the foregoing clauses (i)
\n to (v) inclusive of any Debt secured thereby, provided that
\n the principal amount of Debt secured thereby shall not exceed
\n the principal amount of Debt so secured at the time of such
\n extension, renewal or replacement, and that such extension,
\n renewal or replacement Lien shall be limited to all or part of
\n the property<\/p>\n
53<\/p>\n
which secured the Lien extended, renewed or replaced (plus
\n improvements on such property);<\/p>\n
provided, however, that, the Company and any one or more Subsidiaries
\n owning Restricted Property may issue, assume or guarantee Debt secured
\n by Liens which would otherwise be subject to the foregoing restrictions
\n in an aggregate principal amount which, together with the aggregate
\n outstanding principal amount of all other Debt of the Company and its
\n Subsidiaries owning Restricted Property that would otherwise be subject
\n to the foregoing restrictions (not including Debt permitted to be
\n secured under clause (i) through (vi) above) and the aggregate value of
\n the Sale and Leaseback Transactions in existence at such time, does not
\n at any one time exceed 10% of the Net Tangible Assets of the Company
\n and its Consolidated Subsidiaries; and provided further that the
\n following type of transaction, among others, shall not be deemed to
\n create Debt secured by Liens: Liens required by any contract or statute
\n in order to permit the Company or any of its Subsidiaries to perform
\n any contract or subcontract made by it with or at the request of the
\n United States of America, any foreign country or any department, agency
\n or instrumentality of any of the foregoing jurisdictions.<\/p>\n
(b) Mergers, Etc. Merge or consolidate with or into, or
\n convey, transfer, lease or otherwise dispose of (whether in one
\n transaction or in a series of transactions) all or substantially all of
\n its assets (whether now owned or hereafter acquired) to, any Person;
\n provided, however, that the Company may merge or consolidate with any
\n other Person so long as the Company is the surviving corporation and so
\n long as no Default shall have occurred and be continuing at the time of
\n such proposed transaction or would result therefrom.<\/p>\n
ARTICLE VI<\/p>\n
EVENTS OF DEFAULT<\/p>\n
SECTION 6.01. Events of Default. If any of the following events
\n(“Events of Default”) shall occur and be continuing:<\/p>\n
(a) Any Borrower shall fail to pay: (i) any principal of any
\n Advance when the same becomes due and payable; (ii) any facility fees
\n or any interest on any Advance payable under this Agreement or any Note
\n within three Business Days after the same becomes due and payable; or
\n (iii) any other fees or other amounts payable under this Agreement or
\n any Notes within 30 days after the same becomes due and payable other
\n than those fees and amounts the liabilities for which are being
\n contested in good faith by such Borrower and which have been placed in
\n Escrow by such Borrower; or<\/p>\n
54<\/p>\n
(b) Any representation or warranty made (or deemed made) by
\n any Borrower (or any of its officers) in connection with this Agreement
\n or by any Designated Subsidiary in the Designation Letter pursuant to
\n which such Designated Subsidiary became a Borrower hereunder shall
\n prove to have been incorrect in any material respect when made (or
\n deemed made); or<\/p>\n
(c) The Company shall repudiate its obligations under, or
\n shall default in the due performance or observance of, any term,
\n covenant or agreement contained in Article VII of this Agreement; or<\/p>\n
(d) (i) The Company shall fail to perform or observe any other
\n term, covenant or agreement contained in Section 5.02(a) and such
\n failure shall remain unremedied for a period of 30 days after any
\n Lender shall have given notice thereof to the Company (through the
\n Agent), or (ii) the Company or any other Borrower shall fail to perform
\n or to observe any other term, covenant or agreement contained in this
\n Agreement on its part to be performed or observed and such failure
\n shall remain unremedied for a period of 30 days after any Lender shall
\n have given notice thereof to the relevant Borrower or, in the case of
\n the Company, any of the principal financial officer, the principal
\n accounting officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company, and in the case of any other Borrower, a
\n responsible officer of such Borrower, first has knowledge of such
\n failure; or<\/p>\n
(e) (i) The Company or any of its Consolidated or Designated
\n Subsidiaries shall fail to pay any principal of or premium or interest
\n on any Debt (other than Debt owed to the Company or its Subsidiaries or
\n Affiliates) that is outstanding in a principal amount of at least
\n $150,000,000 in the aggregate (but excluding Debt outstanding hereunder
\n and Debt owed by such party to any bank, financial institution or other
\n institutional lender to the extent the Borrower or any Subsidiary has
\n deposits with such bank, financial institution or other institutional
\n lender sufficient to repay such Debt) of the Company or such Subsidiary
\n (as the case may be), when the same becomes due and payable (whether by
\n scheduled maturity, required prepayment, acceleration, demand or
\n otherwise), and such failure shall continue after the applicable grace
\n period, if any, specified in the agreement or instrument relating to
\n such Debt, or (ii) any other event shall occur or condition shall exist
\n under any agreement or instrument relating to any such Debt and shall
\n continue after the applicable grace period, if any, specified in such
\n agreement or instrument, if the effect of such event or condition is to
\n accelerate, or to permit the acceleration of, the maturity of such
\n Debt, or (iii) any such Debt shall be declared to be due and payable,
\n or required to be prepaid or redeemed (other than by a regularly
\n scheduled required prepayment or redemption), purchased or defeased, or
\n an offer to prepay, redeem, purchase or defease such Debt shall be
\n required to be made, in each case prior to the stated maturity thereof;
\n provided, however, that, for purposes of this Section 6.0l(e), in the
\n case of (x) Debt of any Person (other than the Company or one of its<\/p>\n
55<\/p>\n
Consolidated Subsidiaries) which the Company has guaranteed and (y)
\n Debt of Persons (other than the Company or one of its Consolidated
\n Subsidiaries) the payment of which is secured by a Lien on property of
\n the Company or such Subsidiary, such Debt shall be deemed to have not
\n been paid when due or to have been declared to be due and payable only
\n when the Company or such Subsidiary, as the case may be, shall have
\n failed to pay when due any amount which it shall be obligated to pay
\n with respect to such Debt; provided further, however, that any event or
\n occurrence described in this subsection (e) shall not be an Event of
\n Default if (A) such event or occurrence relates to the Debt of any
\n Subsidiary of the Company located in China, India, the Commonwealth of
\n Independent States or Turkey (collectively, the “Exempt Countries”),
\n (B) such Debt is not guaranteed or supported in any legally enforceable
\n manner by any Borrower or by any Subsidiary or Affiliate of the Company
\n located outside the Exempt Countries, (C) such event or occurrence is
\n due to the direct or indirect action of any government entity or agency
\n in any Exempt Country and (D) as of the last day of the calendar
\n quarter immediately preceding such event or occurrence, the book value
\n of the assets of such Subsidiary does not exceed $150,000,000 and the
\n aggregate book value of the assets of all Subsidiaries of the Company
\n located in Exempt Countries the Debt of which would cause an Event of
\n Default to occur but for the effect of this proviso does not exceed
\n $500,000,000; or<\/p>\n
(f) The Company or any of its Designated or Consolidated
\n Subsidiaries shall generally not pay its debts as such debts become
\n due, or shall admit in writing its inability to pay its debts
\n generally, or shall make a general assignment for the benefit of
\n creditors; or any proceeding shall be instituted by or against the
\n Company or any such Subsidiaries seeking to adjudicate it a bankrupt or
\n insolvent, or seeking liquidation, winding up, reorganization,
\n arrangement, adjustment, protection, relief, or composition of it or
\n its debts under any law relating to bankruptcy, insolvency or
\n reorganization or relief of debtors, or seeking the entry of an order
\n for relief or the appointment of a receiver, trustee, custodian or
\n other similar official for it or for any substantial part of its
\n property and, in the case of any such proceeding instituted against it
\n (but not instituted by it), either such proceeding shall remain
\n undismissed or unstayed for a period of 30 days, or any of the actions
\n sought in such proceeding (including, without limitation, the entry of
\n an order for relief against, or the appointment of a receiver, trustee,
\n custodian or other similar official for, it or for any substantial part
\n of its property) shall occur; or the Company or any such Subsidiaries
\n shall take any corporate action to authorize any of the actions set
\n forth above in this subsection (f); provided, however, that any event
\n or occurrence described in this subsection (f) shall not be an Event of
\n Default if (A) such event or occurrence relates to any Subsidiary of
\n the Company located in an Exempt Country, (B) the Debt of such
\n Subsidiary is not guaranteed or supported in any legally enforceable
\n manner by any Borrower or by any Subsidiary or Affiliate of the Company
\n located outside the Exempt Countries, (C) such event or occurrence is
\n due to the direct or indirect action of any government entity or agency
\n in any Exempt Country and (D) as of the last day of the calendar
\n quarter immediately preceding such event<\/p>\n
56<\/p>\n
or occurrence, the book value of the assets of such Subsidiary does not
\n exceed $150,000,000 and the aggregate book value of the assets of all
\n Subsidiaries of the Company located in Exempt Countries with respect to
\n which the happening of the events or occurrences described in this
\n subsection (f) would cause an Event of Default to occur but for the
\n effect of this proviso does not exceed $500,000,000; or<\/p>\n
(g) Any judgment or order for the payment of money in excess
\n of $150,000,000 shall be rendered against the Company or any of its
\n Subsidiaries and enforcement proceedings shall have been commenced by
\n any creditor upon such judgment or order and there shall be any period
\n of 10 consecutive days during which a stay of enforcement of such
\n judgment or order, by reason of a pending appeal or otherwise, shall
\n not be in effect; provided, however, that any such judgment or order
\n shall not be an Event of Default under this Section 6.01(g) if (A) such
\n judgment or order is rendered against any Subsidiary of the Company
\n located in an Exempt Country, (B) the Debt of such Subsidiary is not
\n guaranteed or supported in any legally enforceable manner by any
\n Borrower or by any Subsidiary or Affiliate of the Company located
\n outside the Exempt Countries, (C) such judgment or order is due to the
\n direct or indirect action of any government entity or agency in any
\n Exempt Country and (D) as of the last day of the calendar quarter
\n immediately preceding the tenth consecutive day of the stay period
\n referred to above, the book value of the assets of such Subsidiary does
\n not exceed $150,000,000 and the aggregate book value of the assets of
\n all Subsidiaries of the Company located in Exempt Countries the
\n judgments and orders against which would cause an Event of Default to
\n occur but for the effect of this proviso does not exceed $500,000,000;
\n or<\/p>\n
(h) Any non-monetary judgment or order shall be rendered
\n against the Company or any of its Subsidiaries that is reasonably
\n likely to have a Material Adverse Effect, and enforcement proceedings
\n shall have been commenced by any Person upon such judgment or order and
\n there shall be any period of 10 consecutive days during which a stay of
\n enforcement of such judgment or order, by reason of a pending appeal or
\n otherwise, shall not be in effect; or<\/p>\n
(i) Any license, consent, authorization or approval (including
\n exchange control approvals) now or hereafter necessary to enable the
\n Company or any Designated Subsidiary to comply with its obligations
\n herein or under any Notes of such Borrower shall be modified, revoked,
\n withdrawn, withheld or suspended; or<\/p>\n
(j) (i) Any ERISA Event shall have occurred with respect to a
\n Plan of any Borrower or any of its ERISA Affiliates and the sum
\n (determined as of the date of occurrence of such ERISA Event) of the
\n Insufficiency of such Plan and the Insufficiency of any and all other
\n Plans of the Borrowers and their ERISA Affiliates with respect to which
\n an ERISA Event shall have occurred and then exist (or the liability of
\n the Borrowers and<\/p>\n
57<\/p>\n
their ERISA Affiliates related to such ERISA Event) exceeds
\n $150,000,000; or (ii) any Borrower or any of its ERISA Affiliates shall
\n be in default, as defined in Section 4219(c)(5) of ERISA, with respect
\n to any payment of Withdrawal Liability and the sum of the outstanding
\n balance of such Withdrawal Liability and the outstanding balance of any
\n other Withdrawal Liability that any Borrower or any of its ERISA
\n Affiliates has incurred exceeds 6% of Net Tangible Assets of the
\n Company and its Consolidated Subsidiaries; or (iii) any Borrower or any
\n of its ERISA Affiliates shall have been notified by the sponsor of a
\n Multiemployer Plan of such Borrower or any of its ERISA Affiliates that
\n such Multiemployer Plan is in reorganization or is being terminated,
\n within the meaning of Title IV of ERISA, and as a result of such
\n reorganization or termination the aggregate annual contributions of the
\n Borrowers and their ERISA Affiliates to all Multiemployer Plans that
\n are then in reorganization or being terminated have been or will be
\n increased over the amounts contributed to such Multiemployer Plans for
\n the plan years of such Multiemployer Plans immediately preceding the
\n plan year in which such reorganization or termination occurs by an
\n amount exceeding $150,000,000; or<\/p>\n
then, and (i) in any such event (except as provided in clause (ii) below), the
\nAgent (A) shall at the request, or may with the consent, of the Majority
\nLenders, by notice to the Company, declare the obligation of each Lender to make
\nAdvances to be terminated, whereupon the same shall forthwith terminate, and (B)
\nshall at the request, or may with the consent, of the Majority Lenders, by
\nnotice to the Company, declare the Advances, all interest thereon and all other
\namounts payable under this Agreement to be forthwith due and payable, whereupon
\nthe Advances, all such interest and all such amounts shall become and be
\nforthwith due and payable, without presentment, demand, protest or further
\nnotice of any kind, all of which are hereby expressly waived by the Borrowers
\nand (ii) in the case of the occurrence of any Event of Default described in
\nclause (i) or (ii) of Section 6.01(a), the Agent shall, at the request, or may
\nwith the consent, of the Lenders which have made or assumed under this Agreement
\nat least 66-2\/3% of the aggregate principal amount (based in respect of
\nCompetitive Bid Advances denominated in Foreign Currencies on the Equivalent in
\nDollars on the date of such request) of Competitive Bid Advances then
\noutstanding and to whom such Advances are owed, by notice to the Company,
\ndeclare the full unpaid principal of and accrued interest on all Competitive Bid
\nAdvances hereunder and all other obligations of the Borrowers hereunder to be
\nimmediately due and payable, whereupon such Advances and such obligations shall
\nbe immediately due and payable, without presentment, demand, protest or other
\nfurther notice of any kind, all of which are hereby expressly waived by the
\nBorrowers; provided, however, that in the event of an actual or deemed entry of
\nan order for relief with respect to any Borrower under the United States
\nBankruptcy Code of 1978, as amended, (x) the obligation of each Lender to make
\nAdvances shall automatically be terminated and (y) the Advances, all such
\ninterest and all such amounts shall automatically become and be due and payable,
\nwithout presentment, demand, protest or any notice of any kind, all of which are
\nhereby expressly waived by the Borrowers.<\/p>\n
58<\/p>\n
ARTICLE VII<\/p>\n
GUARANTEE<\/p>\n
SECTION 7.01. Unconditional Guarantee. For valuable
\nconsideration, receipt whereof is hereby acknowledged, and to induce each Lender
\nto make Advances to the Designated Subsidiaries and to induce the Agent to act
\nhereunder, the Company hereby unconditionally and irrevocably guarantees to each
\nLender and the Agent that:<\/p>\n
(a) the principal of and interest on each Advance to each
\n Designated Subsidiary shall be promptly paid in full when due (whether
\n at stated maturity, by acceleration or otherwise) in accordance with
\n the terms hereof, and, in case of any extension of time of payment, in
\n whole or in part, of such Advance, that all such sums shall be promptly
\n paid when due (whether at stated maturity, by acceleration or
\n otherwise) in accordance with the terms of such extension; and<\/p>\n
(b) all other amounts payable hereunder by any Designated
\n Subsidiary to any Lender or the Agent or the Sub-Agent, as the case may
\n be, shall be promptly paid in full when due in accordance with the
\n terms hereof (the obligations of the Designated Subsidiaries under
\n these subsections (a) and (b) of this Section 7.01 being the
\n “Obligations”).<\/p>\n
In addition, the Company hereby unconditionally and irrevocably agrees that upon
\ndefault in the payment when due (whether at stated maturity, by acceleration or
\notherwise) of any principal of, or interest on, any Advance to any Designated
\nSubsidiary or such other amounts payable by any Designated Subsidiary to any
\nLender or the Agent, the Company will forthwith pay the same, without further
\nnotice or demand.<\/p>\n
SECTION 7.02. Guarantee Absolute. The Company guarantees that
\nthe Obligations will be paid strictly in accordance with the terms of this
\nAgreement, regardless of any law, regulation or order now or hereafter in effect
\nin any jurisdiction affecting any of such terms or the rights of any Lender or
\nthe Agent with respect thereto. The liability of the Company under this
\nguarantee shall be absolute and unconditional irrespective of:<\/p>\n
(a) any lack of validity or enforceability of this Agreement
\n or any other agreement or instrument relating thereto;<\/p>\n
(b) any change in the time, manner or place of payment of, or
\n in any other term of, all or any of the Obligations, or any other
\n amendment or waiver of or any consent to departure from this Agreement
\n (including, without limitation, any extension of the Termination Date
\n pursuant to Section 2.16);<\/p>\n
59<\/p>\n
(c) any exchange, release or non-perfection of any collateral,
\n or any release or amendment or waiver of or consent to departure from
\n any other guaranty, for all or any of the Obligations; or<\/p>\n
(d) any other circumstance which might otherwise constitute a
\n defense available to, or a discharge of, the Company, any Borrower or a
\n guarantor.<\/p>\n
This guarantee shall continue to be effective or be reinstated, as the case may
\nbe, if at any time any payment of any of the Obligations is rescinded or must
\notherwise be returned by any of the Lenders or the Agent upon the insolvency,
\nbankruptcy or reorganization of the Company or any Borrower or otherwise, all as
\nthough such payment had not been made.<\/p>\n
SECTION 7.03. Waivers. The Company hereby expressly waives
\ndiligence, presentment, demand for payment, protest, any requirement that any
\nright or power be exhausted or any action be taken against any Designated
\nSubsidiary or against any other guarantor of all or any portion of the Advances,
\nand all other notices and demands whatsoever.<\/p>\n
SECTION 7.04. Remedies. Each of the Lenders and the Agent may
\npursue its respective rights and remedies under this Article VII and shall be
\nentitled to payment hereunder notwithstanding any other guarantee of all or any
\npart of the Advances to the Designated Subsidiaries, and notwithstanding any
\naction taken by any such Lender or the Agent to enforce any of its rights or
\nremedies under such other guarantee, or any payment received thereunder. The
\nCompany hereby irrevocably waives any claim or other right that it may now or
\nhereafter acquire against any Designated Subsidiary that arises from the
\nexistence, payment, performance or enforcement of the Company’s obligations
\nunder this Article VII, including, without limitation, any right of subrogation,
\nreimbursement, exoneration, contribution or indemnification and any right to
\nparticipate in any claim or remedy of the Agent or the Lenders against any
\nDesignated Subsidiary, whether or not such claim, remedy or right arises in
\nequity or under contract, statute or common law, including, without limitation,
\nthe right to take or receive from the Designated Subsidiary, directly or
\nindirectly, in cash or other property or by set-off or in any other manner,
\npayment or security on account of such claim, remedy or right. If any amount
\nshall be paid to the Company in violation of the preceding sentence at any time
\nwhen all the Obligations shall not have been paid in full, such amount shall be
\nheld in trust for the benefit of the Lenders and the Agent and shall forthwith
\nbe paid to the Agent for its own account and the accounts of the respective
\nLenders to be credited and applied to the Obligations, whether matured or
\nunmatured, in accordance with the terms of this Agreement, or to be held as
\ncollateral for any Obligations or other amounts payable under this Agreement
\nthereafter arising. The Company acknowledges that it will receive direct and
\nindirect benefits from the financing arrangements contemplated by this Agreement
\nand that the waiver set forth in this section is knowingly made in contemplation
\nof such benefits.<\/p>\n
60<\/p>\n
SECTION 7.05. No Stay. The Company agrees that, as between (a)
\nthe Company and (b) the Lenders and the Agent, the Obligations of any Designated
\nSubsidiary guaranteed by the Company hereunder may be declared to be forthwith
\ndue and payable as provided in Article VI hereof for purposes of this Article
\nVII by declaration to the Company as guarantor notwithstanding any stay,
\ninjunction or other prohibition preventing such declaration as against such
\nDesignated Subsidiary and that, in the event of such declaration to the Company
\nas guarantor, such Obligations (whether or not due and payable by such
\nDesignated Subsidiary), shall forthwith become due and payable by the Company
\nfor purposes of this Article VII.<\/p>\n
SECTION 7.06. Survival. This guarantee is a continuing
\nguarantee and shall (a) remain in full force and effect until payment in full
\n(after the Termination Date) of the Obligations and all other amounts payable
\nunder this guaranty, (b) be binding upon the Company, its successors and
\nassigns, (c) inure to the benefit of and be enforceable by each Lender
\n(including each Assuming Lender and each assignee Lender pursuant to Section
\n9.07) and the Agent and their respective successors, transferees and assigns and
\n(d) shall be reinstated if at any time any payment to a Lender or the Agent
\nhereunder is required to be restored by such Lender or the Agent. Without
\nlimiting the generality of the foregoing clause (c), each Lender may assign or
\notherwise transfer its interest in any Advance to any other person or entity,
\nand such other person or entity shall thereupon become vested with all the
\nrights in respect thereof granted to such Lender herein or otherwise.<\/p>\n
ARTICLE VIII<\/p>\n
THE AGENT<\/p>\n
SECTION 8.01. Authorization and Action. Each Lender hereby
\nappoints and authorizes the Agent to take such action as agent on its behalf and
\nto exercise such powers and discretion under this Agreement as are delegated to
\nthe Agent by the terms hereof, together with such powers and discretion as are
\nreasonably incidental thereto. As to any matters not expressly provided for by
\nthis Agreement (including, without limitation, enforcement or collection of the
\nNotes), the Agent shall not be required to exercise any discretion or take any
\naction, but shall be required to act or to refrain from acting (and shall be
\nfully protected in so acting or refraining from acting) upon the instructions of
\nthe Majority Lenders, and such instructions shall be binding upon all Lenders
\nand all holders of Notes; provided, however, that the Agent shall not be
\nrequired to take any action that exposes the Agent to personal liability or that
\nis contrary to this Agreement or applicable law. The Agent agrees to give to
\neach Lender prompt notice of each notice given to it by any Borrower pursuant to
\nthe terms of this Agreement.<\/p>\n
SECTION 8.02. Agent’s Reliance, Etc. Neither the Agent nor any
\nof its directors, officers, agents or employees shall be liable for any action
\ntaken or omitted to be taken by it or them under or in connection with this
\nAgreement, except for its or their own gross negligence or willful<\/p>\n
61<\/p>\n
misconduct. Without limitation of the generality of the foregoing, the Agent:
\n(a) may treat the Lender that made any Advance as the holder of the Debt
\nresulting therefrom until the Agent receives and accepts an Assignment and
\nAcceptance entered into by such Lender, as assignor, and an Eligible Assignee,
\nas assignee, as provided in Section 9.07; (b) may consult with legal counsel
\n(including counsel for the Company), independent public accountants and other
\nexperts selected by it and shall not be liable for any action taken or omitted
\nto be taken in good faith by it in accordance with the advice of such counsel,
\naccountants or experts; (c) makes no warranty or representation to any Lender
\nand shall not be responsible to any Lender for any statements, warranties or
\nrepresentations (whether written or oral) made in or in connection with this
\nAgreement; (d) shall not have any duty to ascertain or to inquire as to the
\nperformance or observance of any of the terms, covenants or conditions of this
\nAgreement on the part of any Borrower or to inspect the property (including the
\nbooks and records) of any Borrower; (e) shall not be responsible to any Lender
\nfor the due execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of this Agreement or any other instrument or document
\nfurnished pursuant hereto; and (f) shall incur no liability under or in respect
\nof this Agreement by acting upon any notice, consent, certificate or other
\ninstrument or writing (which may be by telecopier, telegram or telex) believed
\nby it to be genuine and signed or sent by the proper party or parties.<\/p>\n
SECTION 8.03. Citibank and Affiliates. With respect to its
\nCommitment, the Advances made by it and the Note issued to it, Citibank shall
\nhave the same rights and powers under this Agreement as any other Lender and may
\nexercise the same as though it were not the Agent; and the term “Lender” or
\n“Lenders” shall, unless otherwise expressly indicated, include Citibank in its
\nindividual capacity. Citibank and its Affiliates may accept deposits from, lend
\nmoney to, act as trustee under indentures of, accept investment banking
\nengagements from and generally engage in any kind of business with, the Company,
\nany of its Subsidiaries and any Person who may do business with or own
\nsecurities of the Company or any such Subsidiary, all as if Citibank were not
\nthe Agent and without any duty to account therefor to the Lenders.<\/p>\n
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
\nthat it has, independently and without reliance upon the Agent or any other
\nLender and based on the financial statements referred to in Section 4.01 and
\nsuch other documents and information as it has deemed appropriate, made its own
\ncredit analysis and decision to enter into this Agreement. Each Lender also
\nacknowledges that it will, independently and without reliance upon the Agent or
\nany other Lender and based on such documents and information as it shall deem
\nappropriate at the time, continue to make its own credit decisions in taking or
\nnot taking action under this Agreement.<\/p>\n
SECTION 8.05. Indemnification. The Lenders agree to indemnify
\nthe Agent (to the extent not reimbursed by a Borrower), ratably according to the
\nrespective principal amounts of the Revolving Credit Advances then owed to each
\nof them (or if no Revolving Credit Advances are at the time outstanding, ratably
\naccording to the respective amounts of their Commitments), from and against any
\nand all liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs,<\/p>\n
62<\/p>\n
expenses or disbursements of any kind or nature whatsoever that may be imposed
\non, incurred by, or asserted against the Agent in any way relating to or arising
\nout of this Agreement or any action taken or omitted by the Agent under this
\nAgreement, provided that no Lender shall be liable for any portion of such
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements resulting from the Agent’s gross negligence or
\nwillful misconduct. Without limitation of the foregoing, each Lender agrees to
\nreimburse the Agent promptly upon demand for its ratable share of any
\nout-of-pocket expenses (including counsel fees) incurred by the Agent in
\nconnection with the preparation, execution, delivery, administration,
\nmodification, amendment or enforcement (whether through negotiations, legal
\nproceedings or otherwise) of, or legal advice in respect of rights or
\nresponsibilities under, this Agreement, to the extent that the Agent is not
\nreimbursed for such expenses by a Borrower.<\/p>\n
SECTION 8.06. Successor Agent. The Agent may resign at any
\ntime by giving written notice thereof to the Lenders and the Company and may be
\nremoved at any time with or without cause by the Majority Lenders. The Company
\nmay at any time, by notice to the Agent, propose a successor Agent (which shall
\nmeet the criteria described below) specified in such notice and request that the
\nLenders be notified thereof by the Agent with a view to their removal of the
\nAgent and their appointment of such successor Agent; the Agent agrees to forward
\nany such notice to the Lenders promptly upon its receipt by the Agent. Upon any
\nsuch resignation or removal, the Majority Lenders shall have the right to
\nappoint a successor Agent. If no successor Agent shall have been so appointed by
\nthe Majority Lenders, and shall have accepted such appointment, within 30 days
\nafter the retiring Agent’s giving of notice of resignation or the Majority
\nLenders’ removal of the retiring Agent, then the retiring Agent may, on behalf
\nof the Lenders, appoint a successor Agent, which shall be a commercial bank
\norganized under the laws of the United States of America or of any State thereof
\nand having a combined capital and surplus of at least $500,000,000. Upon the
\nacceptance of any appointment as Agent hereunder by a successor Agent, such
\nsuccessor Agent shall thereupon succeed to and become vested with all the
\nrights, powers, discretion, privileges and duties of the retiring Agent, and the
\nretiring Agent shall be discharged from its duties and obligations under this
\nAgreement. After any retiring Agent’s resignation or removal hereunder as Agent,
\nthe provisions of this Article VIII shall inure to its benefit as to any actions
\ntaken or omitted to be taken by it while it was Agent under this Agreement.<\/p>\n
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated
\nunder this Agreement to carry out duties of the Agent. The Sub-Agent shall be
\nsubject to each of the obligations in this Agreement to be performed by the
\nSub-Agent, and each of the Borrowers and the Lenders agrees that the Sub-Agent
\nshall be entitled to exercise each of the rights and shall be entitled to each
\nof the benefits of the Agent under this Agreement as relate to the performance
\nof its obligations hereunder.<\/p>\n
63<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
\nprovision of this Agreement or the Revolving Credit Notes, nor consent to any
\ndeparture by any Borrower therefrom, shall in any event be effective unless the
\nsame shall be in writing and signed by the Majority Lenders, and then such
\nwaiver or consent shall be effective only in the specific instance and for the
\nspecific purpose for which given; provided, however, that no amendment, waiver
\nor consent shall, unless in writing and signed by all the Lenders, do any of the
\nfollowing: (a) increase the Commitments of the Lenders or subject the Lenders to
\nany additional obligations, (b) reduce the principal of, or interest on, the
\nRevolving Credit Advances or any fees or other amounts payable hereunder, (c)
\npostpone any date fixed for any payment of principal of, or interest on, the
\nRevolving Credit Advances or any fees or other amounts payable hereunder (other
\nthan as permitted by Section 2.16 to the extent any Lender consents thereunder),
\n(d) release the Company from any of its obligations under Article VII, (e)
\nrequire the duration of an Interest Period to be nine months if such period is
\nnot available to all Lenders or (f) amend this section 9.01; and provided
\nfurther that no amendment, waiver or consent shall, unless in writing and signed
\nby the Agent in addition to the Lenders required above to take such action,
\naffect the rights or duties of the Agent under this Agreement or any Note.<\/p>\n
SECTION 9.02. Notices, Etc. All notices and other
\ncommunications provided for hereunder shall be in writing (including telecopier,
\ntelegraphic or telex communication) and mailed (return receipt requested),
\ntelecopied, telegraphed, telexed or delivered, if to the Company or to any
\nDesignated Subsidiary, at the Company’s address at 101 Columbia Road,
\nMorristown, New Jersey 07962-1219, Attention: Assistant Treasurer; if to any
\nInitial Lender, at its Domestic Lending Office specified opposite its name on
\nSchedule I hereto; if to any other Lender, at its Domestic Lending Office
\nspecified in the Assumption Agreement or the Assignment and Acceptance pursuant
\nto which it became a Lender; and if to the Agent, at its address at Two Penns
\nWay, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department,
\nwith a copy to 399 Park Avenue, New York, New York 10043, Attention: Carolyn
\nSheridan; or, as to any Borrower or the Agent, at such other address as shall be
\ndesignated by such party in a written notice to the other parties and, as to
\neach other party, at such other address as shall be designated by such party in
\na written notice to the Company and the Agent. All such notices and
\ncommunications shall, when mailed, telecopied, telegraphed or telexed, be
\neffective when deposited in the mails, telecopied, delivered to the telegraph
\ncompany or confirmed by telex answerback, respectively, except that notices and
\ncommunications to the Agent pursuant to Article II, III or VIII shall not be
\neffective until received by the Agent. Delivery by telecopier of an executed
\ncounterpart of any amendment or waiver of any provision of this Agreement or the
\nNotes or of any Exhibit hereto to be executed and delivered hereunder shall be
\neffective as delivery of a manually executed counterpart thereof.<\/p>\n
64<\/p>\n
SECTION 9.03. No Waiver; Remedies. No failure on the part of
\nany Lender or the Agent to exercise, and no delay in exercising, any right
\nhereunder or under any Note shall operate as a waiver thereof; nor shall any
\nsingle or partial exercise of any such right preclude any other or further
\nexercise thereof or the exercise of any other right. The remedies herein
\nprovided are cumulative and not exclusive of any remedies provided by law.<\/p>\n
SECTION 9.04. Costs and Expenses. (a) The Company agrees to
\npay on demand all costs and expenses of the Agent in connection with the
\nadministration, modification and amendment of this Agreement, the Notes and the
\nother documents to be delivered hereunder, including, without limitation, (i)
\nall due diligence, syndication (including printing, distribution and bank
\nmeetings), transportation, computer, duplication, appraisal, consultant, and
\naudit expenses and (ii) the reasonable fees and expenses of counsel for the
\nAgent with respect thereto. The Company further agrees to pay on demand all
\ncosts and expenses of the Agent and the Lenders, if any (including, without
\nlimitation, reasonable counsel fees and expenses), in connection with the
\nenforcement (whether through negotiations, legal proceedings or otherwise) of
\nthis Agreement, the Notes and the other documents to be delivered hereunder,
\nincluding, without limitation, reasonable fees and expenses of counsel for the
\nAgent and each Lender in connection with the enforcement of rights under this
\nSection 9.04(a).<\/p>\n
(b) Each Borrower agrees to indemnify and hold harmless the
\nAgent and each Lender and each of their Affiliates and their officers,
\ndirectors, employees, agents and advisors (each, an “Indemnified Party”) from
\nand against any and all claims, damages, losses, liabilities and expenses
\n(including, without limitation, reasonable fees and expenses of counsel) that
\nmay be incurred by or asserted or awarded against any Indemnified Party, in each
\ncase arising out of or in connection with or by reason of, or in connection with
\nthe preparation for a defense of, any investigation, litigation or proceeding
\narising out of, related to or in connection with the Notes, this Agreement, any
\nof the transactions contemplated herein or the actual or proposed use of the
\nproceeds of the Advances whether or not such investigation, litigation or
\nproceeding is brought by the Company, its directors, shareholders or creditors
\nor an Indemnified Party or any other Person or any Indemnified Party is
\notherwise a party thereto and whether or not the transactions contemplated
\nhereby are consummated, except to the extent any such claim, damage, loss,
\nliability or expense has resulted from such Indemnified Party’s gross negligence
\nor willful misconduct. The Company also agrees not to assert any claim against
\nany Indemnified Party on any theory of liability for special, indirect,
\nconsequential or punitive damages arising out of or otherwise relating to the
\nNotes, this Agreement, any of the transactions contemplated herein or the actual
\nor proposed use of the proceeds of the Advances.<\/p>\n
(c) If any payment of principal of, or Conversion of, any
\nEurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to or for
\nthe account of a Lender other than on the last day of the Interest Period for
\nsuch Advance, as a result of a payment or Conversion pursuant to Section
\n2.03(d), 2.05(b), 2.09(a) or (b), 2.11 or 2.16, acceleration of the maturity of
\nthe<\/p>\n
65<\/p>\n
Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
\ndemand by such Lender (with a copy of such demand to the Agent), pay to the
\nAgent for the account of such Lender any amounts required to compensate such
\nLender for any additional losses, costs or expenses that it may reasonably incur
\nas a result of such payment or Conversion, including, without limitation, any
\nloss (including loss of anticipated profits), cost or expense incurred by reason
\nof the liquidation or reemployment of deposits or other funds acquired by any
\nLender to fund or maintain such Advance.<\/p>\n
(d) Without prejudice to the survival of any other agreement
\nof the Borrower hereunder, the agreements and obligations of the Borrower
\ncontained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
\nprincipal, interest and all other amounts payable hereunder and under the Notes
\nand the termination in whole of any Commitment hereunder.<\/p>\n
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
\nduring the continuance of any Event of Default and (b) the making of the request
\nor the granting of the consent specified by Section 6.01 to authorize the Agent
\nto declare the Notes due and payable pursuant to the provisions of Section 6.01,
\neach Lender and each of its Affiliates is hereby authorized at any time and from
\ntime to time, to the fullest extent permitted by law, to set off and apply any
\nand all deposits (general or special, time or demand, provisional or final) at
\nany time held and other indebtedness at any time owing by such Lender or such
\nAffiliate to or for the credit or the account of any Borrower against any and
\nall of the obligations of such Borrower now or hereafter existing under this
\nAgreement and the Note of such Borrower held by such Lender, whether or not such
\nLender shall have made any demand under this Agreement or such Note and although
\nsuch obligations may be unmatured. Each Lender agrees promptly to notify the
\nrelevant Borrower after any such set-off and application, provided that the
\nfailure to give such notice shall not affect the validity of such set-off and
\napplication. The rights of each Lender and its Affiliates under this Section are
\nin addition to other rights and remedies (including, without limitation, other
\nrights of set-off) that such Lender and its Affiliates may have.<\/p>\n
SECTION 9.06. Binding Effect. This Agreement shall become
\neffective (other than Sections 2.01 and 2.03, which shall only become effective
\nupon satisfaction of the conditions precedent set forth in Section 3.01) when it
\nshall have been executed by the Company and the Agent and when the Agent shall
\nhave been notified by each Initial Lender that such Initial Lender has executed
\nit and thereafter shall be binding upon and inure to the benefit of each
\nBorrower, the Agent and each Lender and their respective successors and assigns,
\nexcept that no Borrower shall not have the right to assign its rights hereunder
\nor any interest herein without the prior written consent of the Lenders.<\/p>\n
SECTION 9.07. Assignments and Participations. (a) Each Lender
\nmay at any time, with notice to the Company prior to making any proposal to any
\npotential assignee and with the consent of the Company, which consent shall not
\nbe unreasonably withheld (and shall at any time, if requested to do so by the
\nCompany pursuant to Section 2.05(b), 2.10 or 2.13) assign to one or<\/p>\n
66<\/p>\n
more Persons all or a portion of its rights and obligations under this Agreement
\n(including, without limitation, all or a portion of its Commitment, the
\nRevolving Credit Advances owing to it and the Revolving Credit Note or Notes
\nheld by it); provided, however, that (i) the Company’s consent shall not be
\nrequired (A) in the case of an assignment to an Affiliate of such Lender,
\nprovided that notice thereof shall have been given to the Company and the Agent,
\nor (B) in the case of an assignment of the type described in subsection (g)
\nbelow; (ii) each such assignment shall be of a constant, and not a varying,
\npercentage of all rights and obligations under this Agreement (other than any
\nright to make Competitive Bid Advances, Competitive Bid Advances owing to it and
\nCompetitive Bid Notes); (iii) except in the case of an assignment to a Person
\nthat, immediately prior to such assignment, was a Lender or an assignment of all
\nof a Lender’s rights and obligations under this Agreement, the amount of the
\nCommitment of the assigning Lender being assigned pursuant to each such
\nassignment (determined as of the date of the Assignment and Acceptance with
\nrespect to such assignment) shall in no event be less than $10,000,000 or an
\nintegral multiple of $1,000,000 in excess thereof; (iv) each such assignment
\nshall be to an Eligible Assignee, (v) each such assignment made as a result of a
\ndemand by the Company pursuant to this Section 9.07(a) shall be arranged by the
\nCompany after consultation with, and subject to the approval of, the Agent, and
\nshall be either an assignment of all of the rights and obligations of the
\nassigning Lender under this Agreement or an assignment of a portion of such
\nrights and obligations made concurrently with another such assignment or other
\nsuch assignments that together cover all of the rights and obligations of the
\nassigning Lender under this Agreement, (vi) no Lender shall be obligated to make
\nany such assignment as a result of a demand by the Borrower pursuant to this
\nSection 9.07(a) unless and until such Lender shall have received one or more
\npayments from either the Borrower or one or more Eligible Assignees in an
\naggregate amount at least equal to the aggregate outstanding principal amount of
\nthe Advances owing to such Lender, together with accrued interest thereon to the
\ndate of payment of such principal amount and all other amounts payable to such
\nLender under this Agreement and all of the obligations of the Borrower to such
\nLender shall have been satisfied; and (vii) the parties to each such assignment
\nshall execute and deliver to the Agent, for its acceptance and recording in the
\nRegister, an Assignment and Acceptance, together with a processing and
\nrecordation fee of $3,500 and, if the assigning Lender is not retaining a
\nCommitment hereunder, any Revolving Credit Note subject to such assignment. Upon
\nsuch execution, delivery, acceptance and recording, from and after the effective
\ndate specified in each Assignment and Acceptance, (x) the assignee thereunder
\nshall be a party hereto and, to the extent that rights and obligations hereunder
\nhave been assigned to it pursuant to such Assignment and Acceptance, have the
\nrights and obligations of a Lender hereunder and (y) the Lender assignor
\nthereunder shall, to the extent that rights and obligations hereunder have been
\nassigned by it pursuant to such Assignment and Acceptance, relinquish its rights
\nand be released from its obligations under this Agreement (and, in the case of
\nan Assignment and Acceptance covering all or the remaining portion of an
\nassigning Lender’s rights and obligations under this Agreement, such Lender
\nshall cease to be a party hereto, provided, however, that such assigning
\nLender’s rights under Sections 2.10, 2.13 and 9.04, and its obligations under
\nSection 8.05, shall survive such assignment as to matters occurring prior to the
\neffective date of such assignment).<\/p>\n
67<\/p>\n
(b) By executing and delivering an Assignment and Acceptance,
\nthe Lender assignor thereunder and the assignee thereunder confirm to and agree
\nwith each other and the other parties hereto as follows: (i) other than as
\nprovided in such Assignment and Acceptance, such assigning Lender makes no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with this
\nAgreement or any other instrument or document furnished pursuant hereto or the
\nexecution, legality, validity, enforceability, genuineness, sufficiency or value
\nof this Agreement or any other instrument or document furnished pursuant hereto;
\n(ii) such assigning Lender makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of any Borrower or the
\nperformance or observance by such Borrower of any of its obligations under this
\nAgreement or any other instrument or document furnished pursuant hereto; (iii)
\nsuch assignee confirms that it has received a copy of this Agreement, together
\nwith copies of the financial statements referred to in Section 4.01 and such
\nother documents and information as it has deemed appropriate to make its own
\ncredit analysis and decision to enter into such Assignment and Acceptance; (iv)
\nsuch assignee will, independently and without reliance upon the Agent, such
\nassigning Lender or any other Lender and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in taking or not taking action under this Agreement; (v) such assignee
\nconfirms that it is an Eligible Assignee; (vi) such assignee appoints and
\nauthorizes the Agent to take such action as agent on its behalf and to exercise
\nsuch powers and discretion under this Agreement as are delegated to the Agent by
\nthe terms hereof, together with such powers and discretion as are reasonably
\nincidental thereto; and (vii) such assignee agrees that it will perform in
\naccordance with their terms all of the obligations that by the terms of this
\nAgreement are required to be performed by it as a Lender.<\/p>\n
(c) Upon its receipt of an Assignment and Acceptance executed
\nby an assigning Lender and an assignee representing that it is an Eligible
\nAssignee, together with any Revolving Credit Note or Notes subject to such
\nassignment, the Agent shall, if such Assignment and Acceptance has been
\ncompleted and is in substantially the form of Exhibit C hereto, (i) accept such
\nAssignment and Acceptance, (ii) record the information contained therein in the
\nRegister and (iii) give prompt notice thereof to the Company and to each other
\nBorrower.<\/p>\n
(d) The Agent shall maintain at its address referred to in
\nSection 9.02 a copy of each Assumption Agreement and each Assignment and
\nAcceptance delivered to and accepted by it and a register for the recordation of
\nthe names and addresses of the Lenders and the Commitment of, and principal
\namount of the Advances owing to, each Lender from time to time (the “Register”).
\nThe entries in the Register shall be conclusive and binding for all purposes,
\nabsent manifest error, and the Company, each other Borrower, the Agent and the
\nLenders may treat each Person whose name is recorded in the Register as a Lender
\nhereunder for all purposes of this Agreement. The Register shall be available
\nfor inspection by the Company, any other Borrower or any Lender at any
\nreasonable time and from time to time upon reasonable prior notice.<\/p>\n
68<\/p>\n
(e) Each Lender may sell participations to one or more banks
\nor other entities (other than the Company or any of its Affiliates) in or to all
\nor a portion of its rights and obligations under this Agreement (including,
\nwithout limitation, all or a portion of its Commitment, the Advances owing to it
\nand any Note or Notes held by it); provided, however, that (i) such Lender’s
\nobligations under this Agreement (including, without limitation, its Commitment
\nto the Company and the other Borrowers hereunder) shall remain unchanged, (ii)
\nsuch Lender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations, (iii) such Lender shall remain the holder of
\nany such Note for all purposes of this Agreement, (iv) the Company, any other
\nBorrower, the Agent and the other Lenders shall continue to deal solely and
\ndirectly with such Lender in connection with such Lender’s rights and
\nobligations under this Agreement, (v) no participant under any such
\nparticipation shall have any right to approve any amendment or waiver of any
\nprovision of this Agreement or any Note, or any consent to any departure by any
\nBorrower therefrom, except to the extent that such amendment, waiver or consent
\nwould reduce the principal of, or interest on, the Notes or any fees or other
\namounts payable hereunder, in each case to the extent subject to such
\nparticipation, or postpone any date fixed for any payment of principal of, or
\ninterest on, the Notes or any fees or other amounts payable hereunder, in each
\ncase to the extent subject to such participation and (vi) within 30 days of the
\neffective date of such participation, such Lender shall provide notice of such
\nparticipation to the Company.<\/p>\n
(f) Any Lender may, in connection with any assignment or
\nparticipation or proposed assignment or participation pursuant to this Section
\n9.07, disclose to the assignee or participant or proposed assignee or
\nparticipant, any information relating to the Company or any Borrower furnished
\nto such Lender by or on behalf of such Borrower; provided that, prior to any
\nsuch disclosure, the assignee or participant or proposed assignee or participant
\nshall agree to preserve the confidentiality of any confidential information
\nrelating to such Borrower received by it from such Lender.<\/p>\n
(g) Notwithstanding any other provision set forth in this
\nAgreement, any Lender may at any time assign or create a security interest in
\nall or any portion of its rights under this Agreement (including, without
\nlimitation, the Advances owing to it and any Note or Notes held by it) in favor
\nof any Federal Reserve Bank in accordance with Regulation A of the Board of
\nGovernors of the Federal Reserve System.<\/p>\n
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
\nCompany may at any time, and from time to time, by delivery to the Agent of a
\nDesignation Letter duly executed by the Company and the respective Subsidiary
\nand substantially in the form of Exhibit E hereto, designate such Subsidiary as
\na “Designated Subsidiary” for purposes of this Agreement and such Subsidiary
\nshall thereupon become a “Designated Subsidiary” for purposes of this Agreement
\nand, as such, shall have all of the rights and obligations of a Borrower
\nhereunder. The Agent shall promptly notify each Lender of each such designation
\nby the Company and the identity of the respective Subsidiary.<\/p>\n
69<\/p>\n
(b) Termination. Upon the payment and performance in full of
\nall of the indebtedness, liabilities and obligations under this Agreement and
\nthe Notes of any Designated Subsidiary then, so long as at the time no Notice of
\nRevolving Credit Borrowing or Notice of Competitive Bid Borrowing in respect of
\nsuch Designated Subsidiary is outstanding, such Subsidiary’s status as a
\n“Designated Subsidiary” shall terminate upon notice to such effect from the
\nAgent to the Lenders (which notice the Agent shall give promptly upon its
\nreceipt of a request therefor from the Company). Thereafter, the Lenders shall
\nbe under no further obligation to make any Advance hereunder to such Designated
\nSubsidiary.<\/p>\n
SECTION 9.09. Confidentiality. Each of the Lenders and the
\nAgent hereby agrees that it will use reasonable efforts (e.g., procedures
\nsubstantially comparable to those applied by such Lender or the Agent in respect
\nof non-public information as to the business of such Lender or the Agent) to
\nkeep confidential any financial reports and other information from time to time
\nsupplied to it by the Company hereunder to the extent that such information is
\nnot and does not become publicly available and which the Company indicates at
\nthe time is to be treated confidentially, provided, however, that nothing herein
\nshall affect the disclosure of any such information (i) by the Agent to any
\nLender, (ii) to the extent required by law (including statute, rule, regulation
\nor judicial process), (iii) to counsel for any Lender or the Agent or to their
\nrespective independent public accountants, (iv) to bank examiners and auditors
\nand appropriate government examining authorities, (v) to the Agent or any other
\nLender, (vi) in connection with any litigation to which any Lender or the Agent
\nis a party, (vii) to actual or prospective assignees and participants as
\ncontemplated by Section 9.07(f) or (viii) to any Affiliate of the Agent or any
\nLender or to such Affiliate’s officers, directors, employees, agents and
\nadvisors, provided that, prior to any such disclosure, such Affiliate or such
\nAffiliate’s officers, directors, employees, agents or advisors, as the case may
\nbe, shall agree to preserve the confidentiality of any confidential information
\nrelating to the Company received by it; a determination by a Lender or the Agent
\nas to the application of the circumstances described in the foregoing clauses
\n(i)-(viii) being conclusive if made in good faith; and each of the Lenders and
\nthe Agent agrees that it will follow procedures which are intended to put any
\ntransferee of such confidential information on notice that such information is
\nconfidential.<\/p>\n
SECTION 9.10. Mitigation of Yield Protection. Each Lender
\nhereby agrees that, commencing as promptly as practicable after it becomes aware
\nof the occurrence of any event giving rise to the operation of Section 2.10(a),
\n2.11 or 2.13 with respect to such Lender, such Lender will give notice thereof
\nthrough the Agent to the respective Borrower. A Borrower may at any time, by
\nnotice through the Agent to any Lender, request that such Lender change its
\nApplicable Lending Office as to any Advance or Type of Advance or that it
\nspecify a new Applicable Lending Office with respect to its Commitment and any
\nAdvance held by it or that it rebook any such Advance with a view to avoiding or
\nmitigating the consequences of an occurrence such as described in the preceding
\nsentence, and such Lender will use reasonable efforts to comply with such
\nrequest unless, in the opinion of such Lender, such change or specification or
\nrebooking is inadvisable or might have an adverse effect, economic or otherwise,
\nupon it, including its reputation. In addition, each Lender<\/p>\n
70<\/p>\n
agrees that, except for changes or specifications or rebookings required by law
\nor effected pursuant to the preceding sentence, if the result of any change or
\nchange of specification of Applicable Lending Office or rebooking would, but for
\nthis sentence, be to impose additional costs or requirements upon the respective
\nBorrower pursuant to Section 2.10(a), Section 2.11 or Section 2.13 (which would
\nnot be imposed absent such change or change of specification or rebooking) by
\nreason of legal or regulatory requirements in effect at the time thereof and of
\nwhich such Lender is aware at such time, then such costs or requirements shall
\nnot be imposed upon such Borrower but shall be borne by such Lender. All
\nexpenses incurred by any Bank in changing an Applicable Lending Office or
\nspecifying another Applicable Lending Office of such Lender or rebooking any
\nAdvance in response to a request from a Borrower shall be paid by such Borrower.
\nNothing in this Section 9.10 (including, without limitation, any failure by a
\nLender to give any notice contemplated in the first sentence hereof) shall
\nlimit, reduce or postpone any obligations of the respective Borrower under
\nSection 2.10(a), Section 2.11 or Section 2.13, including any obligations payable
\nin respect of any period prior to the date of any change or specification of a
\nnew Applicable Lending Office or any rebooking of any Advance.<\/p>\n
SECTION 9.11. Governing Law. This Agreement and the Notes
\nshall be governed by, and construed in accordance with, the laws of the State of
\nNew York.<\/p>\n
SECTION 9.12. Execution in Counterparts. This Agreement may be
\nexecuted in any number of counterparts and by different parties hereto in
\nseparate counterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which taken together shall constitute one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nAgreement by telecopier shall be effective as delivery of a manually executed
\ncounterpart of this Agreement.<\/p>\n
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties
\nhereto hereby irrevocably and unconditionally submits, for itself and its
\nproperty, to the nonexclusive jurisdiction of any New York State court or
\nfederal court of the United States of America sitting in New York City, and any
\nappellate court from any thereof, in any action or proceeding arising out of or
\nrelating to this Agreement or the Notes, or for recognition or enforcement of
\nany judgment, and each of the parties hereto hereby irrevocably and
\nunconditionally agrees that all claims in respect of any such action or
\nproceeding may be heard and determined in any such New York State court or, to
\nthe extent permitted by law, in such federal court. Each Designated Subsidiary
\nhereby agrees that service of process in any such action or proceeding brought
\nin the any such New York State court or in such federal court may be made upon
\nCT Corporation System at its offices at 1633 Broadway, New York, New York 10019
\n(the “Process Agent”) and each Designated Subsidiary hereby irrevocably appoints
\nthe Process Agent its authorized agent to accept such service of process, and
\nagrees that the failure of the Process Agent to give any notice of any such
\nservice shall not impair or affect the validity of such service or of any
\njudgment rendered in any action or proceeding based thereon. Each Borrower
\nhereby further irrevocably consents to the service of process in any action or
\nproceeding in such courts by the mailing thereof by any parties hereto by
\nregistered or certified mail, postage prepaid,<\/p>\n
71<\/p>\n
to such Borrower at its address specified pursuant to Section 9.02. Each of the
\nparties hereto agrees that a final judgment in any such action or proceeding
\nshall be conclusive and may be enforced in other jurisdictions by suit on the
\njudgment or in any other manner provided by law. Nothing in this Agreement shall
\naffect any right that any party may otherwise have to serve legal process in any
\nother manner permitted by law or to bring any action or proceeding relating to
\nthis Agreement or the Notes in the courts of any jurisdiction. To the extent
\nthat each Designated Subsidiary has or hereafter may acquire any immunity from
\njurisdiction of any court or from any legal process (whether through service or
\nnotice, attachment prior to judgment, attachment in aid of execution, execution
\nor otherwise) with respect to itself or its property, each Designated Subsidiary
\nhereby irrevocably waives such immunity in respect of its obligations under this
\nAgreement.<\/p>\n
(b) Each of the parties hereto irrevocably and unconditionally
\nwaives, to the fullest extent it may legally and effectively do so, any
\nobjection that it may now or hereafter have to the laying of venue of any suit,
\naction or proceeding arising out of or relating to this Agreement or the Notes
\nin any New York State or federal court. Each of the parties hereto hereby
\nirrevocably waives, to the fullest extent permitted by law, the defense of an
\ninconvenient forum to the maintenance of such action or proceeding in any such
\ncourt.<\/p>\n
SECTION 9.14. Substitution of Currency. If a change in any
\nForeign Currency occurs pursuant to any applicable law, rule or regulation of
\nany governmental, monetary or multi-national authority, this Agreement
\n(including, without limitation, the definitions of Eurocurrency Rate and LIBO
\nRate) will be amended to the extent determined by the Agent (acting reasonably
\nand in consultation with the Company) to be necessary to reflect the change in
\ncurrency and to put the Lenders and the Borrowers in the same position, so far
\nas possible, that they would have been in if no change in such Foreign Currency
\nhad occurred.<\/p>\n
SECTION 9.15. Final Agreement. This written agreement
\nrepresents the full and final agreement between the parties with respect to the
\nmatters addressed herein and supercedes all prior communications, written or
\noral, with respect thereto. There are no unwritten agreements between the
\nparties.<\/p>\n
SECTION 9.16. Judgment. (a) If for the purposes of obtaining
\njudgment in any court it is necessary to convert a sum due hereunder or under
\nthe Notes in any currency (the “Original Currency”) into another currency (the
\n“Other Currency”), the parties hereto agree, to the fullest extent that they may
\neffectively do so, that the rate of exchange used shall be that at which in
\naccordance with normal banking procedures the Agent could purchase the Original
\nCurrency with the Other Currency at 9:00 A.M. (New York City time) on the first
\nBusiness Day preceding that on which final judgment is given.<\/p>\n
(b) The obligation of each Borrower in respect of any sum due
\nin the Original Currency from it to any Lender or the Agent hereunder or under
\nthe Revolving Credit Note or<\/p>\n
72<\/p>\n
Revolving Credit Notes held by such Lender shall, notwithstanding any judgment
\nin any Other Currency, be discharged only to the extent that on the Business Day
\nfollowing receipt by such Lender or the Agent (as the case may be) of any sum
\nadjudged to be so due in such Other Currency, such Lender or the Agent (as the
\ncase may be) may in accordance with normal banking procedures purchase Dollars
\nwith such Other Currency; if the amount of Dollars so purchased is less than the
\nsum originally due to such Lender or the Agent (as the case may be) in the
\nOriginal Currency, such Borrower agrees, as a separate obligation and
\nnotwithstanding any such judgment, to indemnify such Lender or the Agent (as the
\ncase may be) against such loss, and if the amount of Dollars so purchased
\nexceeds the sum originally due to any Lender or the Agent (as the case may be)
\nin the Original Currency, such Lender or the Agent (as the case may be) agrees
\nto remit to such Borrower such excess.<\/p>\n
73<\/p>\n
SECTION 9.17. Waiver of Jury Trial. Each Borrower, the Agent
\nand each Lender hereby irrevocably waive all right to trial by jury in any
\naction, proceeding or counterclaim (whether based on contract, tort or
\notherwise) arising out of or relating to this Agreement or the Notes or the
\nactions of the Agent or any Lender in the negotiation, administration,
\nperformance or enforcement thereof.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be executed by their respective officers thereunto duly authorized,
\nas of the date first above written.<\/p>\n
HONEYWELL INTERNATIONAL INC.<\/p>\n
By: \/s\/ James V. Gelly
\n ——————————-
\n Name: James V. Gelly
\n Title: Vice President and Treasurer<\/p>\n
CITIBANK, N.A., as Agent<\/p>\n
By: \/s\/ Carolyn A. Kee
\n ——————————-
\n Name: Carolyn A. Kee
\n Title: Vice President<\/p>\n
COMMITMENT ARRANGER AND ADMINISTRATIVE AGENT
\n———- ———————————<\/p>\n
$213,333,333.33 CITIBANK, N.A.<\/p>\n
By: \/s\/ Carolyn A. Kee
\n ——————————-
\n Name: Carolyn A. Kee
\n Title: Vice President<\/p>\n
74<\/p>\n
CO-SYNDICATION AGENTS
\n ———————<\/p>\n
$160,000,000.00 BANK OF AMERICA, N.A.<\/p>\n
By: \/s\/ John W. Pocalyko
\n ——————————-
\n Name: John W. Pocalyko
\n Title: Managing Director<\/p>\n
$160,000,000.00 THE CHASE MANHATTAN BANK<\/p>\n
By: \/s\/ John C. Riordan
\n ——————————-
\n Name: John C. Riordan
\n Title: Vice President<\/p>\n
$160,000,000.00 DEUTSCHE BANK AG, NEW YORK AND\/OR
\n CAYMAN ISLANDS BRANCH<\/p>\n
By: \/s\/ Jean M. Hannigan
\n ——————————-
\n Name: Jean M. Hannigan
\n Title: Vice President<\/p>\n
By: \/s\/ Iain Stewart
\n ——————————-
\n Name: Iain Stewart
\n Title: Vice President<\/p>\n
AGENT<\/p>\n
$160,000,000.00 BARCLAYS BANK PLC<\/p>\n
By: \/s\/ Paul Kavanagh
\n ——————————-
\n Name: Paul Kavanagh
\n Title: Director<\/p>\n
75<\/p>\n
SENIOR MANAGING AGENTS
\n ———————-<\/p>\n
$100,000,000.00 BANCA NAZIONALE DE LAVORO S.p.A.-NEW
\n YORK BRANCH<\/p>\n
By: \/s\/ Miguel J. Medida
\n ——————————-
\n Name: Miguel J. Medida
\n Title: Vice President<\/p>\n
By: \/s\/ Leonardo Valentini
\n ——————————-
\n Name: Leonardo Valentini
\n Title: First Vice President<\/p>\n
$100,000,000.00 THE BANK OF NEW YORK<\/p>\n
By: \/s\/ Ernest Fung
\n ——————————-
\n Name: Ernest Fung
\n Title: Vice President<\/p>\n
$100,000,000.00 BANK OF TOKYO-MITSUBISHI TRUST
\n COMPANY<\/p>\n
By: \/s\/ W. A. DiNicola
\n ——————————-
\n Name: W. A. DiNicola
\n Title: Vice President<\/p>\n
$100,000,000.00 BANK ONE, NA<\/p>\n
By: \/s\/ Stephen E. McDonald
\n ——————————-
\n Name: Stephen E. McDonald
\n Title: Senior Vice President<\/p>\n
$100,000,000.00 HSBC BANK USA<\/p>\n
By: \/s\/ Rochelle Forster
\n ——————————-
\n Name: Rochelle Forster
\n Title: Vice President<\/p>\n
76<\/p>\n
$100,000,000.00 MELLON BANK, N.A.<\/p>\n
By: \/s\/ Donald G. Cassidy
\n ——————————-
\n Name: Donald G. Cassidy
\n Title: First Vice President<\/p>\n
$100,000,000.00 MORGAN GUARANTY TRUST COMPANY OF
\n NEW YORK<\/p>\n
By: \/s\/ Dennis Wilczek
\n ——————————-
\n Name: Dennis Wilczek
\n Title: Associate<\/p>\n
CO-AGENTS
\n ———<\/p>\n
$43,333,333.33 ABN AMRO BANK N.V.<\/p>\n
By: \/s\/ Peter L. Eaton
\n ——————————-
\n Name: Peter L. Eaton
\n Title: Group Vice President<\/p>\n
By: \/s\/ John P. Richardson
\n ——————————-
\n Name: John P. Richardson
\n Title: Vice President<\/p>\n
$43,333,333.33 BANCA DI ROMA<\/p>\n
By: \/s\/ Steven Paley
\n ——————————-
\n Name: Steven Paley
\n Title: Vice President<\/p>\n
By: \/s\/ Alessandro Paoli
\n ——————————-
\n Name: Alessandro Paoli
\n Title: Asst. Treasurer<\/p>\n
77<\/p>\n
$43,333,333.33 BANQUE NATIONALE DE PARIS<\/p>\n
By: \/s\/ Richard L. Sted
\n ——————————-
\n Name: Richard L. Sted
\n Title: Senior Vice President<\/p>\n
By: \/s\/ Thomas George
\n ——————————-
\n Name: Thomas George
\n Title: Vice President,
\n Corp. Banking Division<\/p>\n
$43,333,333.33 NORTHERN TRUST COMPANY<\/p>\n
By: \/s\/ Eric Strickland
\n ——————————-
\n Name: Eric Strickland
\n Title: Vice President<\/p>\n
$43,333,333.33 THE SUMITOMO BANK, LIMITED<\/p>\n
By: \/s\/ P.R.C. Knight
\n ——————————-
\n Name: P.R.C. Knight
\n Title: Sr. Vice President<\/p>\n
$43,333,333.33 WELLS FARGO BANK, NATIONAL
\n ASSOCIATION<\/p>\n
By: \/s\/ Molly S. Van Metre
\n ——————————-
\n Name: Molly S. Van Metre
\n Title: Vice President<\/p>\n
78<\/p>\n
LENDERS
\n ——-<\/p>\n
$26,666,666.6 BANCO BILBAO VIZCAYA<\/p>\n
By: \/s\/ John Martini
\n ——————————-
\n Name: John Martini
\n Title: Vice President, Corporate Banking<\/p>\n
By: \/s\/ Alejandro Lorca
\n ——————————-
\n Name: Alejandro Lorca
\n Title: Vice President, Corporate Banking<\/p>\n
$26,666,666.67 BANK OF MONTREAL<\/p>\n
By: \/s\/ Brian L. Banke
\n ——————————-
\n Name: Brian L. Banke
\n Title: Director<\/p>\n
$26,666,666.67 FUJI BANK<\/p>\n
By: \/s\/ Raymond Ventura
\n ——————————-
\n Name: Raymond Venture
\n Title: Vice President & Manager<\/p>\n
$26,666,666.67 THE INDUSTRIAL BANK OF JAPAN<\/p>\n
By: \/s\/ J. Kenneth Biegen
\n ——————————-
\n Name: J. Kenneth Biegen
\n Title: Senior Vice President<\/p>\n
$26,666,666.67 ROYAL BANK OF CANADA<\/p>\n
By: \/s\/ Lynne M. Letterini
\n ——————————-
\n Name: Lynne M. Letterini
\n Title: Manager<\/p>\n
79<\/p>\n
$26,666,666.67 STANDARD CHARTERED<\/p>\n
By: \/s\/ Jacob H. Yahiayan
\n ——————————-
\n Name: Jacob H. Yahiayan
\n Title: Vice President<\/p>\n
By: \/s\/ Lalita Vadhri
\n ——————————-
\n Name: Lalita Vadhri
\n Title: Assistant Vice President<\/p>\n
$26,666,666.67 UNICREDITO ITALIANO<\/p>\n
By: \/s\/ Christopher J. Eldin
\n ——————————-
\n Name: Christopher J. Eldin
\n Title: First Vice President & Deputy Manager<\/p>\n
By: \/s\/ Saiyed A. Abbas
\n ——————————-
\n Name: Saiyed A. Abbas
\n Title: Vice President<\/p>\n
$2,000,000,000 TOTAL OF COMMITMENTS<\/p>\n
EX-10
\n3
\nEXHIBIT 10.12<\/p>\n EXECUTION COPY<\/p>\n
U.S. $1,000,000,000<\/p>\n
FIVE YEAR CREDIT AGREEMENT<\/p>\n
Dated as of December 2, 1999<\/p>\n
Among<\/p>\n
HONEYWELL INTERNATIONAL INC.,<\/p>\n
as Borrower,<\/p>\n
and<\/p>\n
THE INITIAL LENDERS NAMED HEREIN,<\/p>\n
as Initial Lenders,<\/p>\n
and<\/p>\n
CITIBANK, N.A.,<\/p>\n
as Administrative Agent<\/p>\n
and<\/p>\n
THE CHASE MANHATTAN BANK<\/p>\n
DEUTSCHE BANK AG<\/p>\n
BANK OF AMERICA, N.A.<\/p>\n
as Syndication Agents<\/p>\n
and<\/p>\n
SALOMON SMITH BARNEY INC.<\/p>\n
as Lead Arranger and Book Manager<\/p>\n
TABLE OF CONTENTS<\/p>\n
\n\n PAGE
\n
\n ARTICLE I<\/p>\n DEFINITIONS AND ACCOUNTING TERMS<\/p>\n
SECTION 1.01. Certain Defined Terms ………………………………………..1
\nSECTION 1.02. Computation of Time Periods ………………………………….16
\nSECTION 1.03. Accounting Terms ……………………………………………16<\/p>\n
ARTICLE II<\/p>\n
AMOUNTS AND TERMS OF THE ADVANCES<\/p>\n
SECTION 2.01. The Revolving Credit Advances ………………………………..17
\nSECTION 2.02. Making the Revolving Credit Advances ………………………….18
\nSECTION 2.03. The Competitive Bid Advances …………………………………19
\nSECTION 2.04. Fees ………………………………………………………25
\nSECTION 2.05. Termination or Reduction of the Commitments ……………………25
\nSECTION 2.06. Repayment of Advances ……………………………………….27
\nSECTION 2.07. Interest on Revolving Credit Advances …………………………27
\nSECTION 2.08. Interest Rate Determination ………………………………….28
\nSECTION 2.09. Prepayments of Revolving Credit Advances ………………………30
\nSECTION 2.10. Increased Costs …………………………………………….31
\nSECTION 2.11. Illegality …………………………………………………32
\nSECTION 2.12. Payments and Computations ……………………………………33
\nSECTION 2.13. Taxes ……………………………………………………..34
\nSECTION 2.14. Sharing of Payments, Etc. ……………………………………37
\nSECTION 2.15. Use of Proceeds …………………………………………….37
\nSECTION 2.16. Evidence of Debt ……………………………………………37<\/p>\n
ARTICLE III<\/p>\n
CONDITIONS TO EFFECTIVENESS AND LENDING<\/p>\n
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 ….38
\nSECTION 3.02. Conditions Precedent to Initial Borrowing ……………………..40
\nSECTION 3.03. Initial Loan to Each Designated Subsidiary …………………….40
\nSECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing …………41
\nSECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing ………….42
\nSECTION 3.06. Determinations Under Section 3.01 …………………………….43<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\n PAGE
\n <\/p>\n ARTICLE IV<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01. Representations and Warranties of the Company ………………….43<\/p>\n
ARTICLE V<\/p>\n
COVENANTS OF THE BORROWER<\/p>\n
SECTION 5.01. Affirmative Covenants ……………………………………….46
\nSECTION 5.02. Negative Covenants ………………………………………….50<\/p>\n
ARTICLE VI<\/p>\n
EVENTS OF DEFAULT<\/p>\n
SECTION 6.01. Events of Default …………………………………………..52<\/p>\n
ARTICLE VII<\/p>\n
GUARANTEE<\/p>\n
SECTION 7.01. Unconditional Guarantee ……………………………………..56
\nSECTION 7.02. Guarantee Absolute ………………………………………….57
\nSECTION 7.03. Waivers ……………………………………………………57
\nSECTION 7.04. Remedies …………………………………………………..58
\nSECTION 7.05. No Stay ……………………………………………………58
\nSECTION 7.06. Survival …………………………………………………..58<\/p>\n
ARTICLE VIII<\/p>\n
THE AGENT<\/p>\n
SECTION 8.01. Authorization and Action …………………………………….59
\nSECTION 8.02. Agent’s Reliance, Etc. ………………………………………59
\nSECTION 8.03. Citibank and Affiliates ……………………………………..60
\nSECTION 8.04. Lender Credit Decision ………………………………………60
\nSECTION 8.05. Indemnification …………………………………………….60
\nSECTION 8.06. Successor Agent …………………………………………….60
\nSECTION 8.07. Sub-Agent ………………………………………………….61<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\n PAGE
\n
\n ARTICLE IX<\/p>\n MISCELLANEOUS<\/p>\n
SECTION 9.01. Amendments, Etc. ……………………………………………61
\nSECTION 9.02. Notices, Etc. ………………………………………………62
\nSECTION 9.03. No Waiver; Remedies …………………………………………62
\nSECTION 9.04. Costs and Expenses ………………………………………….62
\nSECTION 9.05. Right of Set-off ……………………………………………63
\nSECTION 9.06. Binding Effect ……………………………………………..64
\nSECTION 9.07. Assignments and Participations ……………………………….64
\nSECTION 9.08. Designated Subsidiaries ……………………………………..67
\nSECTION 9.09. Confidentiality …………………………………………….67
\nSECTION 9.10. Mitigation of Yield Protection ……………………………….68
\nSECTION 9.11. Governing Law. ……………………………………………..68
\nSECTION 9.12. Execution in Counterparts ……………………………………68
\nSECTION 9.13. Jurisdiction, Etc. ………………………………………….69
\nSECTION 9.14. Substitution of Currency …………………………………….69
\nSECTION 9.15. Final Agreement …………………………………………….70
\nSECTION 9.16. Judgment …………………………………………………..70
\nSECTION 9.17. Waiver of Jury Trial ………………………………………..70<\/p>\n
<\/c><\/c><\/s><\/caption>\n<\/table>\n
SCHEDULES<\/p>\n
Schedule I – List of Applicable Lending Offices<\/p>\n
Schedule 3.01(b) – Disclosed Litigation<\/p>\n
EXHIBITS<\/p>\n
Exhibit A-1 – Form of Revolving Credit Note<\/p>\n
Exhibit A-2 – Form of Competitive Bid Note<\/p>\n
Exhibit B-1 – Form of Notice of Revolving Credit Borrowing<\/p>\n
Exhibit B-2 – Form of Notice of Competitive Bid Borrowing<\/p>\n
Exhibit C – Form of Assignment and Acceptance<\/p>\n
Exhibit D – Form of Designation Letter<\/p>\n
Exhibit E – Form of Acceptance by Process Agent<\/p>\n
Exhibit F – Form of Opinion of J. Edward Smith, Assistant General Counsel
\n of the Company<\/p>\n
Exhibit G – Form of Opinion of Counsel to a Designated Subsidiary<\/p>\n
Exhibit H – Form of Opinion of Shearman & Sterling, Counsel to the Agent<\/p>\n
FIVE YEAR CREDIT AGREEMENT<\/p>\n
Dated as of December 2, 1999<\/p>\n
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the “Company”),
\nthe banks, financial institutions and other institutional lenders (the “Initial
\nLenders”) listed on the signature pages hereof, and CITIBANK, N.A. (“Citibank”),
\nas administrative agent (the “Agent”) for the Lenders (as hereinafter defined),
\nagree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS AND ACCOUNTING TERMS<\/p>\n
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
\nfollowing terms shall have the following meanings (such meanings to be equally
\napplicable to both the singular and plural forms of the terms defined):<\/p>\n
“Advance” means a Revolving Credit Advance or a Competitive
\n Bid Advance.<\/p>\n
“Affiliate” means, as to any Person, any other Person that,
\n directly or indirectly, controls, is controlled by or is under common
\n control with such Person or is a director or officer of such Person.
\n For purposes of this definition, the term “control” (including the
\n terms “controlling”, “controlled by” and “under common control with”)
\n of a Person means the possession, direct or indirect, of the power to
\n direct or cause the direction of the management and policies of such
\n Person, whether through the ownership of Voting Stock, by contract or
\n otherwise.<\/p>\n
“Agent’s Account” means (a) in the case of Advances
\n denominated in Dollars, the account of the Agent maintained by the
\n Agent at Citibank at its office at 399 Park Avenue, New York, New York
\n 10043, Account No. 36852248, Attention: Janet Wallace, (b) in the case
\n of Advances denominated in any Foreign Currency, the account of the
\n Sub-Agent designated in writing from time to time by the Agent to the
\n Company and the Lenders for such purpose and (c) in any such case, such
\n other account of the Agent as is designated in writing from time to
\n time by the Agent to the Company and the Lenders for such purpose.<\/p>\n
“Alternate Currency” means any lawful currency other than
\n Dollars and the Major Currencies that is freely transferrable and
\n convertible into Dollars.<\/p>\n
2<\/p>\n
“Applicable Lending Office” means, with respect to each
\n Lender, such Lender’s Domestic Lending Office in the case of a Base
\n Rate Advance and such Lender’s Eurocurrency Lending Office in the case
\n of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
\n Advance, the office of such Lender notified by such Lender to the Agent
\n as its Applicable Lending Office with respect to such Competitive Bid
\n Advance.<\/p>\n
“Applicable Margin” means, as of any date, a percentage per
\n annum determined by reference to the Public Debt Rating in effect on
\n such date as set forth below:<\/p>\n
\n\n Applicable Margin for
\n Public Debt Rating Eurocurrency Rate
\n S&P\/Moody’s Advances
\n ———– ——–
\n
\n Level 1
\n AA-\/Aa3 0.095%
\n ———————————————————
\n Level 2
\n Lower than AA-\/Aa3 but at
\n least A\/A2 0.135%
\n ———————————————————
\n Level 3
\n Lower than A\/A2 but at least
\n A-\/A3 0.220%
\n ———————————————————
\n Level 4
\n Lower than A-\/A3 but at least
\n BBB+\/Baa1 0.300%
\n ———————————————————
\n Level 5
\n Lower than BBB+\/Baa1 or
\n unrated 0.600%
\n ———————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n “Applicable Percentage” means, as of any date, a percentage
\n per annum determined by reference to the Public Debt Rating in effect
\n on such date as set forth below:<\/p>\n
\n\n Public Debt Rating Applicable
\n S&P\/Moody’s Percentage
\n ———– ———-
\n
\n Level 1
\n AA-\/Aa3 0.055%
\n ———————————————————
\n Level 2
\n Lower than AA-\/Aa3 but at
\n least A\/A2 0.065%
\n ———————————————————
\n Level 3
\n Lower than A\/A2 but at least
\n A-\/A3 0.080%
\n ———————————————————
\n Level 4
\n Lower than A-\/A3 but at least
\n BBB+\/Baa1 0.100%
\n ———————————————————<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
3<\/p>\n
\n
\n ———————————————————–
\n Level 5
\n Lower than BBB+\/Baa1 or
\n unrated 0.150%
\n ———————————————————
\n<\/c><\/s><\/table>\n “Applicable Utilization Fee” means, as of any date on which
\n the Utilization in effect is greater than or equal to 50%, a percentage
\n per annum determined by reference to the Public Debt Rating in effect
\n on such date as set forth:<\/p>\n
\n\n Public Debt Rating
\n S&P\/Moody’s Applicable Utilization Fee
\n ———– ————————–
\n
\n Level 1
\n AA-\/Aa3 0.000%
\n ———————————————————
\n Level 2
\n Lower than AA-\/Aa3 but at
\n least A\/A2 0.000%
\n ———————————————————
\n Level 3
\n Lower than A\/A2 but at least
\n A-\/A3 0.050%
\n ———————————————————
\n Level 4
\n Lower than A-\/A3 but at least
\n BBB+\/Baa1 0.100%
\n ———————————————————
\n Level 5
\n Lower than BBB+\/Baa1 or
\n unrated 0.125%
\n ———————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n “Assignment and Acceptance” means an assignment and acceptance
\n entered into by a Lender and an Eligible Assignee, and accepted by the
\n Agent, in substantially the form of Exhibit C hereto.<\/p>\n
“Base Rate” means a fluctuating interest rate per annum in
\n effect from time to time, which rate per annum shall at all times be
\n equal to the highest of:<\/p>\n
(a) the rate of interest announced publicly by
\n Citibank in New York, New York, from time to time, as
\n Citibank’s base rate;<\/p>\n
(b) the sum (adjusted to the nearest 1\/32 of 1% or,
\n if there is no nearest 1\/32 of 1%, to the next higher 1\/32 of
\n 1%) of (i) 1\/2 of 1% per annum, plus (ii) the rate obtained by
\n dividing (A) the latest three-week moving average of secondary
\n market morning offering rates in the United States for
\n three-month certificates of deposit of major United States
\n money market banks, such three-week moving average (adjusted
\n to the basis of a year of 360 days) being determined weekly on
\n each Monday (or, if such day is not a Business Day, on the
\n next succeeding Business Day) for the three-week period ending
\n on the previous Friday by Citibank on the basis of such rates
\n reported by certificate of deposit<\/p>\n
4<\/p>\n
dealers to and published by the Federal Reserve Bank of New
\n York or, if such publication shall be suspended or terminated,
\n on the basis of quotations for such rates received by Citibank
\n from three New York certificate of deposit dealers of
\n recognized standing selected by Citibank, by (B) a percentage
\n equal to 100% minus the average of the daily percentages
\n specified during such three-week period by the Board of
\n Governors of the Federal Reserve System (or any successor) for
\n determining the maximum reserve requirement (including, but
\n not limited to, any emergency, supplemental or other marginal
\n reserve requirement) for Citibank with respect to liabilities
\n consisting of or including (among other liabilities)
\n three-month Dollar non-personal time deposits in the United
\n States, plus (iii) the average during such three-week period
\n of the annual assessment rates estimated by Citibank for
\n determining the then current annual assessment payable by
\n Citibank to the Federal Deposit Insurance Corporation (or any
\n successor) for insuring Dollar deposits of Citibank in the
\n United States;<\/p>\n
(c) 1\/2 of one percent per annum above the Federal
\n Funds Rate; and<\/p>\n
(d) for the period from December 15, 1999 through
\n January 15, 2000, two percent per annum above the Federal
\n Funds Rate.<\/p>\n
“Base Rate Advance” means a Revolving Credit Advance
\n denominated in Dollars that bears interest as provided in Section
\n 2.07(a)(i).<\/p>\n
“Borrower” means the Company or any Designated Subsidiary, as
\n the context requires.<\/p>\n
“Borrowing” means a Revolving Credit Borrowing or a
\n Competitive Bid Borrowing.<\/p>\n
“Business Day” means a day of the year on which banks are not
\n required or authorized by law to close in New York City and, if the
\n applicable Business Day relates to any Eurocurrency Rate Advance or
\n LIBO Rate Advance, on which dealings are carried on in the London
\n interbank market and banks are open for business in London and in the
\n country of issue of the currency of such Eurocurrency Rate Advance or
\n LIBO Rate Advance (or, in the case of an Advance denominated in the
\n euro, in Frankfurt, Germany) and, if the applicable Business Day
\n relates to any Local Rate Advance, on which banks are open for business
\n in the country of issue of the currency of such Local Rate Advance.<\/p>\n
“Change of Control” means that (i) any Person or group of
\n Persons (within the meaning of Section 13 or 14 of the Securities
\n Exchange Act of 1934, as amended (the “Act”)) (other than the Company,
\n any Subsidiary of the Company or any savings, pension<\/p>\n
5<\/p>\n
or other benefit plan for the benefit of employees of the Company or
\n its Subsidiaries) which theretofore beneficially owned less than 30% of
\n the Voting Stock of the Company then outstanding shall have acquired
\n beneficial ownership (within the meaning of Rule 13d-3 promulgated by
\n the Securities and Exchange Commission under the Act) of 30% or more in
\n voting power of the outstanding Voting Stock of the Company or (ii)
\n during any period of twelve consecutive calendar months commencing at
\n the effective time of the merger of Honeywell Inc. and a wholly owned
\n Subsidiary of the Company as contemplated by the Merger Agreement,
\n individuals who at the beginning of such twelve- month period were
\n directors of the Company shall cease to constitute a majority of the
\n Board of Directors of the Company.<\/p>\n
“Commitment” means as to any Lender (i) the Dollar amount set
\n forth opposite its name on the signature pages hereof or (ii) if such
\n Lender has entered into any Assignment and Acceptance, the Dollar
\n amount set forth for such Lender in the Register maintained by the
\n Administrative Agent pursuant to Section 9.07(d), in each case as the
\n same may be terminated or reduced, as the case may be, pursuant to
\n Section 2.05.<\/p>\n
“Competitive Bid Advance” means an advance by a Lender to any
\n Borrower as part of a Competitive Bid Borrowing resulting from the
\n competitive bidding procedure described in Section 2.03 and refers to a
\n Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance (each
\n of which shall be a “Type” of Competitive Bid Advance).<\/p>\n
“Competitive Bid Borrowing” means a borrowing consisting of
\n simultaneous Competitive Bid Advances from each of the Lenders whose
\n offer to make one or more Competitive Bid Advances as part of such
\n borrowing has been accepted under the competitive bidding procedure
\n described in Section 2.03.<\/p>\n
“Competitive Bid Note” means a promissory note of any Borrower
\n payable to the order of any Lender, in substantially the form of
\n Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
\n such Lender resulting from a Competitive Bid Advance made by such
\n Lender to such Borrower.<\/p>\n
“Competitive Bid Reduction” has the meaning specified in
\n Section 2.01.<\/p>\n
“Consolidated” refers to the consolidation of accounts in
\n accordance with GAAP.<\/p>\n
“Consolidated Subsidiary” means, at any time, any Subsidiary
\n the accounts of which are required at that time to be included on a
\n Consolidated basis in the Consolidated financial statements of the
\n Company, assuming that such financial statements are prepared in
\n accordance with GAAP.<\/p>\n
6<\/p>\n
“Convert”, “Conversion” and “Converted” each refers to a
\n conversion of Revolving Credit Advances of one Type into Revolving
\n Credit Advances of the other Type pursuant to Section 2.08 or 2.11.<\/p>\n
“Debt” means, with respect to any Person: (i) indebtedness of
\n such Person, which is not limited as to recourse to such Person, for
\n borrowed money (whether by loan or the issuance and sale of debt
\n securities) or for the deferred (for 90 days or more) purchase or
\n acquisition price of property or services; (ii) indebtedness or
\n obligations of others which such Person has assumed or guaranteed;
\n (iii) indebtedness or obligations of others secured by a lien, charge
\n or encumbrance on property of such Person whether or not such Person
\n shall have assumed such indebtedness or obligations; (iv) obligations
\n of such Person in respect of letters of credit (other than performance
\n letters of credit, except to the extent backing an obligation of any
\n Person which would be Debt of such Person), acceptance facilities, or
\n drafts or similar instruments issued or accepted by banks and other
\n financial institutions for the account of such Person; and (v)
\n obligations of such Person under leases which are required to be
\n capitalized on a balance sheet of such Person in accordance with GAAP.<\/p>\n
“Default” means any Event of Default or any event that would
\n constitute an Event of Default but for the requirement that notice be
\n given or time elapse or both.<\/p>\n
“Designated Subsidiary” means any corporate Subsidiary of the
\n Company designated for borrowing privileges under this Agreement
\n pursuant to Section 9.08.<\/p>\n
“Designation Letter” means, with respect to any Designated
\n Subsidiary, a letter in the form of Exhibit D hereto signed by such
\n Designated Subsidiary and the Company.<\/p>\n
“Disclosed Litigation” has the meaning specified in Section
\n 3.01(b).<\/p>\n
“Dollars” and the “$” sign each mean lawful money of the
\n United States of America.<\/p>\n
“Domestic Lending Office” means, with respect to any Initial
\n Lender, the office of such Lender specified as its “Domestic Lending
\n Office” opposite its name on Schedule I hereto and, with respect to any
\n other Lender, the office of such Lender specified as its “Domestic
\n Lending Office” in the Assignment and Acceptance pursuant to which it
\n became a Lender, or such other office of such Lender as such Lender may
\n from time to time specify to the Company and the Agent.<\/p>\n
“Domestic Subsidiary” means any Subsidiary whose operations
\n are conducted primarily in the United States excluding any Subsidiary
\n whose assets consist primarily of<\/p>\n
7<\/p>\n
the stock of Subsidiaries whose operations are conducted outside the
\n United States of America.<\/p>\n
“Effective Date” has the meaning specified in Section 3.01.<\/p>\n
“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a
\n Lender; (iii) a commercial bank organized under the laws of the United
\n States, or any State thereof, and having total assets in excess of
\n $10,000,000,000; (iv) a savings and loan association or savings bank
\n organized under the laws of the United States, or any State thereof,
\n and having a net worth of at least $500,000,000, calculated in
\n accordance with GAAP; (v) a commercial bank organized under the laws of
\n any other country that is a member of the Organization for Economic
\n Cooperation and Development or has concluded special lending
\n arrangements with the International Monetary Fund associated with its
\n General Arrangements to Borrow, or a political subdivision of any such
\n country, and having total assets in excess of $10,000,000,000, so long
\n as such bank is acting through a branch or agency located in the
\n country in which it is organized or another country that is described
\n in this clause (v); and (vi) the central bank of any country that is a
\n member of the Organization for Economic Cooperation and Development.<\/p>\n
“Environmental Action” means any action, suit, demand, demand
\n letter, claim, notice of non-compliance or violation, notice of
\n liability or potential liability, investigation, proceeding, consent
\n order or consent agreement relating in any way to any Environmental
\n Law, Environmental Permit or Hazardous Materials or arising from
\n alleged injury or threat of injury to health, safety or the
\n environment, including, without limitation, (a) by any governmental or
\n regulatory authority for enforcement, cleanup, removal, response,
\n remedial or other actions or damages and (b) by any governmental or
\n regulatory authority or any third party for damages, contribution,
\n indemnification, cost recovery, compensation or injunctive relief.<\/p>\n
“Environmental Law” means any federal, state, local or foreign
\n statute, law, ordinance, rule, regulation, code, order, judgment,
\n decree or judicial or agency interpretation, policy or guidance
\n relating to pollution or protection of the environment, health, safety
\n or natural resources, including, without limitation, those relating to
\n the use, handling, transportation, treatment, storage, disposal,
\n release or discharge of Hazardous Materials.<\/p>\n
“Environmental Permit” means any permit, approval,
\n identification number, license or other authorization required under
\n any Environmental Law.<\/p>\n
“Equivalent” in Dollars of any Foreign Currency on any date
\n means the equivalent in Dollars of such Foreign Currency determined by
\n using the quoted spot rate at which<\/p>\n
8<\/p>\n
the Sub-Agent’s principal office in London offers to exchange Dollars
\n for such Foreign Currency in London prior to 4:00 P.M. (London time)
\n (unless otherwise indicated by the terms of this Agreement) on such
\n date as is required pursuant to the terms of this Agreement, and the
\n “Equivalent” in any Foreign Currency of Dollars means the equivalent in
\n such Foreign Currency of Dollars determined by using the quoted spot
\n rate at which the Sub-Agent’s principal office in London offers to
\n exchange such Foreign Currency for Dollars in London prior to 4:00 P.M.
\n (London time) (unless otherwise indicated by the terms of this
\n Agreement) on such date as is required pursuant to the terms of this
\n Agreement.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of
\n 1974, as amended from time to time, and the regulations promulgated and
\n rulings issued thereunder.<\/p>\n
“ERISA Affiliate” of any Person means any other Person that
\n for purposes of Title IV of ERISA is a member of such Person’s
\n controlled group, or under common control with such Person, within the
\n meaning of Section 414 of the Internal Revenue Code.<\/p>\n
“ERISA Event” with respect to any Person means (a) (i) the
\n occurrence of a reportable event, within the meaning of Section 4043 of
\n ERISA, with respect to any Plan of such Person or any of its ERISA
\n Affiliates unless the 30-day notice requirement with respect to such
\n event has been waived by the PBGC, or (ii) the requirements of
\n subsection (1) of Section 4043(b) of ERISA (without regard to
\n subsection (2) of such Section) are met with a contributing sponsor, as
\n defined in Section 4001(a)(13) of ERISA, of a Plan of such Person or
\n any of its ERISA Affiliates, and an event described in paragraph (9),
\n (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
\n expected to occur with respect to such Plan within the following 30
\n days; (b) the application for a minimum funding waiver with respect to
\n a Plan of such Person or any of its ERISA Affiliates; (c) the provision
\n by the administrator of any Plan of such Person or any of its ERISA
\n Affiliates of a notice of intent to terminate such Plan in a distress
\n termination pursuant to Section 4041(a)(2) of ERISA (including any such
\n notice with respect to a plan amendment referred to in Section 4041(e)
\n of ERISA); (d) the cessation of operations at a facility of such Person
\n or any of its ERISA Affiliates in the circumstances described in
\n Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of
\n its ERISA Affiliates from a Multiple Employer Plan during a plan year
\n for which it was a substantial employer, as defined in Section
\n 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
\n under Section 302(f) of ERISA shall have been met with respect to any
\n Plan of such Person or any of its ERISA Affiliates; (g) the adoption of
\n an amendment to a Plan of such Person or any of its ERISA Affiliates
\n requiring the provision of security to such Plan pursuant to Section
\n 307 of ERISA; or (h) the institution<\/p>\n
9<\/p>\n
by the PBGC of proceedings to terminate a Plan of such Person or any of
\n its ERISA Affiliates pursuant to Section 4042 of ERISA, or the
\n occurrence of any event or condition described in Section 4042 of ERISA
\n that constitutes grounds for the termination of, or the appointment of
\n a trustee to administer, such Plan.<\/p>\n
“Escrow” means an escrow established with an independent
\n escrow agent pursuant to an escrow agreement reasonably satisfactory in
\n form and substance to the Person or Persons asserting the obligation of
\n one or more Borrowers to make a payment to it or them hereunder.<\/p>\n
“Eurocurrency Lending Office” means, with respect to any
\n Initial Lender, the office of such Lender specified as its
\n “Eurocurrency Lending Office” opposite its name on Schedule I hereto
\n and, with respect to any other Lender, the office of such Lender
\n specified as its “Eurocurrency Lending Office” in the Assignment and
\n Acceptance pursuant to which it became a Lender (or, if no such office
\n is specified, its Domestic Lending Office), or such other office of
\n such Lender as such Lender may from time to time specify to the Company
\n and the Agent.<\/p>\n
“Eurocurrency Liabilities” has the meaning assigned to that
\n term in Regulation D of the Board of Governors of the Federal Reserve
\n System, as in effect from time to time.<\/p>\n
“Eurocurrency Rate” means, for any Interest Period for each
\n Eurocurrency Rate Advance comprising part of the same Revolving Credit
\n Borrowing, an interest rate per annum equal to the rate per annum
\n obtained by dividing (a) the rate per annum (rounded upwards, if
\n necessary, to the nearest 1\/100 of 1%) appearing on the applicable
\n Telerate Page as the London interbank offered rate for deposits in
\n Dollars or in the relevant Major Currency at approximately 11:00 A.M.
\n (London time) two Business Days prior to the first day of such Interest
\n Period for a term comparable to such Interest Period or, if for any
\n reason such rate is not available, the average (rounded upward to the
\n nearest whole multiple of 1\/32 of 1% per annum, if such average is not
\n such a multiple) of the rate per annum at which deposits in Dollars or
\n in the relevant Major Currency are offered by the principal office of
\n each of the Reference Banks in London, England to prime banks in the
\n London interbank market at 11:00 A.M. (London time) two Business Days
\n before the first day of such Interest Period in an amount substantially
\n equal to such Reference Bank’s Eurocurrency Rate Advance comprising
\n part of such Revolving Credit Borrowing to be outstanding during such
\n Interest Period and for a period equal to such Interest Period by (b) a
\n percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
\n for such Interest Period. If the Telerate Page is unavailable, the
\n Eurocurrency Rate for any Interest Period for each Eurocurrency Rate
\n Advance comprising part of the same Revolving Credit Borrowing shall be
\n determined by the Agent on the basis of applicable rates furnished to
\n and received by the Agent from the Reference Banks two<\/p>\n
10<\/p>\n
Business Days before the first day of such Interest Period, subject,
\n however, to the provisions of Section 2.08.<\/p>\n
“Eurocurrency Rate Advance” means a Revolving Credit Advance
\n denominated in Dollars or in a Major Currency that bears interest as
\n provided in Section 2.07(a)(ii).<\/p>\n
“Eurocurrency Rate Reserve Percentage” for any Interest Period
\n for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
\n part of the same Borrowing means the reserve percentage applicable two
\n Business Days before the first day of such Interest Period under
\n regulations issued from time to time by the Board of Governors of the
\n Federal Reserve System (or any successor) for determining the maximum
\n reserve requirement (including, without limitation, any emergency,
\n supplemental or other marginal reserve requirement) for a member bank
\n of the Federal Reserve System in New York City with respect to
\n liabilities or assets consisting of or including Eurocurrency
\n Liabilities (or with respect to any other category of liabilities that
\n includes deposits by reference to which the interest rate on
\n Eurocurrency Rate Advances or LIBO Rate Advances is determined) having
\n a term equal to such Interest Period.<\/p>\n
“Events of Default” has the meaning specified in Section 6.01.<\/p>\n
“Federal Funds Rate” means, for any period, a fluctuating
\n interest rate per annum equal for each day during such period to the
\n weighted average of the rates on overnight Federal funds transactions
\n with members of the Federal Reserve System arranged by Federal funds
\n brokers, as published for such day (or, if such day is not a Business
\n Day, for the next preceding Business Day) by the Federal Reserve Bank
\n of New York, or, if such rate is not so published for any day that is a
\n Business Day, the average of the quotations for such day on such
\n transactions received by the Agent from three Federal funds brokers of
\n recognized standing selected by it.<\/p>\n
“Fixed Rate Advance” has the meaning specified in Section
\n 2.03(a)(i), which Advance shall be denominated in Dollars or in any
\n Foreign Currency.<\/p>\n
“Foreign Currency” means any Major Currency or any Alternate
\n Currency.<\/p>\n
“GAAP” has the meaning specified in Section 1.03.<\/p>\n
“Hazardous Materials” means (a) petroleum and petroleum
\n products, byproducts or breakdown products, radioactive materials,
\n asbestos-containing materials, polychlorinated biphenyls and radon gas
\n and (b) any other chemicals, materials or substances designated,
\n classified or regulated as hazardous or toxic or as a pollutant or
\n contaminant under any Environmental Law.<\/p>\n
11<\/p>\n
“Insufficiency” means, with respect to any Plan, the amount,
\n if any, of its unfunded benefit liabilities, as defined in Section
\n 4001(a)(18) of ERISA.<\/p>\n
“Interest Period” means, for each Eurocurrency Rate Advance
\n comprising part of the same Revolving Credit Borrowing and each LIBO
\n Rate Advance comprising part of the same Competitive Bid Borrowing, the
\n period commencing on the date of such Eurocurrency Rate Advance or LIBO
\n Rate Advance or the date of the Conversion of any Base Rate Advance
\n into such Eurocurrency Rate Advance and ending on the last day of the
\n period selected by the Borrower requesting such Borrowing pursuant to
\n the provisions below and, thereafter, with respect to Eurocurrency Rate
\n Advances, each subsequent period commencing on the last day of the
\n immediately preceding Interest Period and ending on the last day of the
\n period selected by such Borrower pursuant to the provisions below. The
\n duration of each such Interest Period shall be one, two, three or six
\n months and, if available to all Lenders, nine months, as the Borrower
\n requesting the Borrowing may, upon notice received by the Agent not
\n later than 11:00 A.M. (New York City time) on the third Business Day
\n prior to the first day of such Interest Period, select; provided,
\n however, that:<\/p>\n
(i) such Borrower may not select any Interest Period
\n that ends after the scheduled Termination Date;<\/p>\n
(ii) Interest Periods commencing on the same date for
\n Eurocurrency Rate Advances comprising part of the same
\n Revolving Credit Borrowing or for LIBO Rate Advances
\n comprising part of the same Competitive Bid Borrowing shall be
\n of the same duration;<\/p>\n
(iii) whenever the last day of any Interest Period
\n would otherwise occur on a day other than a Business Day, the
\n last day of such Interest Period shall be extended to occur on
\n the next succeeding Business Day, provided, however, that, if
\n such extension would cause the last day of such Interest
\n Period to occur in the next following calendar month, the last
\n day of such Interest Period shall occur on the next preceding
\n Business Day; and<\/p>\n
(iv) whenever the first day of any Interest Period
\n occurs on a day of an initial calendar month for which there
\n is no numerically corresponding day in the calendar month that
\n succeeds such initial calendar month by the number of months
\n equal to the number of months in such Interest Period, such
\n Interest Period shall end on the last Business Day of such
\n succeeding calendar month.<\/p>\n
“Internal Revenue Code” means the Internal Revenue Code of
\n 1986, as amended from time to time, and the regulations promulgated and
\n rulings issued thereunder.<\/p>\n
12<\/p>\n
“Lenders” means, collectively, (i) Initial Lenders and (ii)
\n each Eligible Assignee that shall become a party hereto pursuant to
\n Section 9.07(a), (b) and (c).<\/p>\n
“LIBO Rate” means, for any Interest Period for all LIBO Rate
\n Advances comprising part of the same Competitive Bid Borrowing, an
\n interest rate per annum equal to the rate per annum obtained by
\n dividing (a) the rate per annum (rounded upwards, if necessary, to the
\n nearest 1\/100 of 1%) appearing on the applicable Telerate Page as the
\n London interbank offered rate for deposits in Dollars or in the
\n relevant Foreign Currency at approximately 11:00 A.M. (London time) two
\n Business Days prior to the first day of such Interest Period or, if for
\n any reason such rate is not available, the average (rounded upward to
\n the nearest whole multiple of 1\/32 of 1% per annum, if such average is
\n not such a multiple) of the rate per annum at which deposits in Dollars
\n or in the relevant Foreign Currency are offered by the principal office
\n of each of the Reference Banks in London, England to prime banks in the
\n London interbank market at 11:00 A.M. (London time) two Business Days
\n before the first day of such Interest Period in an amount substantially
\n equal to the amount that would be the Reference Banks’ respective
\n ratable shares of such Borrowing if such Borrowing were to be a
\n Revolving Credit Borrowing to be outstanding during such Interest
\n Period and for a period equal to such Interest Period by (b) a
\n percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
\n for such Interest Period. If the Telerate Page is unavailable, the LIBO
\n Rate for any Interest Period for each LIBO Rate Advance comprising part
\n of the same Competitive Bid Borrowing shall be determined by the Agent
\n on the basis of applicable rates furnished to and received by the Agent
\n from the Reference Banks two Business Days before the first day of such
\n Interest Period, subject, however, to the provisions of Section 2.08.<\/p>\n
“LIBO Rate Advance” means a Competitive Bid Advance
\n denominated in Dollars or in any Foreign Currency and bearing interest
\n based on the LIBO Rate.<\/p>\n
“Lien” means any lien, mortgage, pledge, security interest or
\n other charge or encumbrance of any kind.<\/p>\n
“Local Rate Advance” means a Competitive Bid Advance
\n denominated in any Foreign Currency sourced from the jurisdiction of
\n issuance of such Foreign Currency and bearing interest at a fixed rate.<\/p>\n
“Major Currencies” means lawful currency of the United Kingdom
\n of Great Britain and Northern Ireland, lawful currency of the Federal
\n Republic of Germany, lawful currency of Japan, lawful currency of the
\n Republic of France and lawful currency of the European Economic and
\n Monetary Union.<\/p>\n
13<\/p>\n
“Majority Lenders” means at any time Lenders holding at least
\n 51% of the then aggregate principal amount (based on the Equivalent in
\n Dollars at such time) of the Revolving Credit Advances owing to
\n Lenders, or, if no such principal amount is then outstanding, Lenders
\n having at least 51% of the Commitments.<\/p>\n
“Material Adverse Change” means any material adverse change in
\n the financial condition or results of operations of the Company and its
\n Consolidated Subsidiaries taken as a whole.<\/p>\n
“Material Adverse Effect” means a material adverse effect on
\n (a) the financial condition or results of operations of the Company and
\n its Consolidated Subsidiaries taken as a whole, (b) the rights and
\n remedies of the Agent or any Lender under this Agreement or any Note or
\n (c) the ability of the Borrowers to perform their obligations under
\n this Agreement or any Note.<\/p>\n
“Merger Agreement” means the Agreement and Plan of Merger
\n dated as of June 4, 1999 among Honeywell Inc., the Company and Blossom
\n Acquisition Corp, a wholly owned Subsidiary of the Company.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc.<\/p>\n
“Multiemployer Plan” of any Person means a multiemployer plan,
\n as defined in Section 4001(a)(3) of ERISA, to which such Person or any
\n of its ERISA Affiliates is making or accruing an obligation to make
\n contributions, or has within any of the preceding five plan years made
\n or accrued an obligation to make contributions.<\/p>\n
“Multiple Employer Plan” of any Person means a single employer
\n plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
\n maintained for employees of such Person or any of its ERISA Affiliates
\n and at least one Person other than such Person or any of its ERISA
\n Affiliates or (b) was so maintained and in respect of which such Person
\n or any of its ERISA Affiliates could have liability under Section 4064
\n or 4069 of ERISA in the event such plan has been or were to be
\n terminated.<\/p>\n
“Net Tangible Assets of the Company and its Consolidated
\n Subsidiaries”, as at any particular date of determination, means the
\n total amount of assets (less applicable reserves and other properly
\n deductible items) after deducting therefrom (a) all current liabilities
\n (excluding any thereof which are by their terms extendible or renewable
\n at the option of the obligor thereon to a time more than 12 months
\n after the time as of which the amount thereof is being computed) and
\n (b) all goodwill, trade names, trademarks, patents, unamortized debt
\n discount and expense and other like intangible assets, as set forth in
\n the<\/p>\n
14<\/p>\n
most recent balance sheet of the Company and its Consolidated
\n Subsidiaries and computed in accordance with GAAP.<\/p>\n
“Note” means a Revolving Credit Note or a Competitive Bid
\n Note.<\/p>\n
“Notice of Competitive Bid Borrowing” has the meaning
\n specified in Section 2.03(a).<\/p>\n
“Notice of Revolving Credit Borrowing” has the meaning
\n specified in Section 2.02(a).<\/p>\n
“Obligations” has the meaning specified in Section 7.01(b).<\/p>\n
“Payment Office” means, for any Foreign Currency, such office
\n of Citibank as shall be from time to time selected by the Agent and
\n notified by the Agent to the Borrowers and the Lenders.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation (or any
\n successor).<\/p>\n
“Person” means an individual, partnership, corporation
\n (including a business trust), joint stock company, trust,
\n unincorporated association, joint venture, limited liability company or
\n other entity, or a government or any political subdivision or agency
\n thereof.<\/p>\n
“Plan” means a Single Employer Plan or a Multiple Employer
\n Plan.<\/p>\n
“Process Agent” has the meaning specified in Section 9.13(a).<\/p>\n
“Public Debt Rating” means, as of any date, the highest rating
\n that has been most recently announced by either S&P or Moody’s, as the
\n case may be, for any class of non-credit enhanced long-term senior
\n unsecured debt issued by the Company. For purposes of the foregoing,
\n (a) if only one of S&P and Moody’s shall have in effect a Public Debt
\n Rating, the Applicable Margin, the Applicable Utilization Fee and the
\n Applicable Percentage shall be determined by reference to the available
\n rating; (b) if neither S&P nor Moody’s shall have in effect a Public
\n Debt Rating, the Applicable Margin, the Applicable Utilization Fee and
\n the Applicable Percentage will be set in accordance with Level 5 under
\n the definition of “Applicable Margin”, “Applicable Utilization Fee” or
\n “Applicable Percentage”, as the case may be; (c) if the ratings
\n established by S&P and Moody’s shall fall within different levels, the
\n Applicable Margin, the Applicable Utilization Fee and the Applicable
\n Percentage shall be based upon the higher rating, provided that if the
\n lower of such ratings is more than one level below the higher of such
\n ratings, the Applicable<\/p>\n
15<\/p>\n
Margin, the Applicable Utilization Fee and the Applicable Percentage
\n shall be determined by reference to the level that is one level above
\n such lower rating; (d) if any rating established by S&P or Moody’s
\n shall be changed, such change shall be effective as of the date on
\n which such change is first announced publicly by the rating agency
\n making such change; and (e) if S&P or Moody’s shall change the basis on
\n which ratings are established, each reference to the Public Debt Rating
\n announced by S&P or Moody’s, as the case may be, shall refer to the
\n then equivalent rating by S&P or Moody’s, as the case may be.<\/p>\n
“Rating Condition” has the meaning specified in Section
\n 2.05(c)(ii).<\/p>\n
“Rating Condition Notice” has the meaning specified in Section
\n 2.05(c)(ii).<\/p>\n
“Reference Banks” means Citibank, Bank of America, N.A., The
\n Chase Manhattan Bank and Deutsche Bank AG.<\/p>\n
“Register” has the meaning specified in Section 9.07(d).<\/p>\n
“Restricted Property” means (a) any property of the Company
\n located within the United States of America that, in the opinion of the
\n Company’s Board of Directors, is a principal manufacturing property or
\n (b) any shares of capital stock or Debt of any Subsidiary owning any
\n such property.<\/p>\n
“Revolving Credit Advance” means an advance by a Lender to any
\n Borrower as part of a Revolving Credit Borrowing and refers to a Base
\n Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
\n “Type” of Revolving Credit Advance).<\/p>\n
“Revolving Credit Borrowing” means a borrowing consisting of
\n simultaneous Revolving Credit Advances of the same Type made by each of
\n the Lenders pursuant to Section 2.01.<\/p>\n
“Revolving Credit Note” means a promissory note of any
\n Borrower payable to the order of any Lender, delivered pursuant to a
\n request made under Section 2.16 in substantially the form of Exhibit
\n A-1 hereto, evidencing the aggregate indebtedness of such Borrower to
\n such Lender resulting from the Revolving Credit Advances made by such
\n Lender to such Borrower.<\/p>\n
“Sale and Leaseback Transaction” means any arrangement with
\n any Person (other than the Company or a Subsidiary of the Company), or
\n to which any such Person is a party, providing for the leasing to the
\n Company or to a Subsidiary of the Company<\/p>\n
16<\/p>\n
owning Restricted Property for a period of more than three years of any
\n Restricted Property that has been or is to be sold or transferred by
\n the Company or such Subsidiary to such Person, or to any other Person
\n (other than the Company or a Subsidiary of the Company) to which funds
\n have been or are to be advanced by such Person on the security of the
\n leased property. It is understood that arrangements pursuant to Section
\n 168(f)(8) of the Internal Revenue Code of 1954, as amended, or any
\n successor provision having similar effect, are not included within this
\n definition of “Sale and Leaseback Transaction”.<\/p>\n
“S&P” means Standard & Poor’s Ratings Group, a division of The
\n McGraw-Hill Companies, Inc.<\/p>\n
“Single Employer Plan” of any Person means a single employer
\n plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
\n maintained for employees of such Person or any of its ERISA Affiliates
\n and no Person other than such Person and its ERISA Affiliates or (b)
\n was so maintained and in respect of which such Person or any of its
\n ERISA Affiliates could have liability under Section 4069 of ERISA in
\n the event such plan has been or were to be terminated.<\/p>\n
“Sub-Agent” means Citibank International plc.<\/p>\n
“Subsidiary” of any Person means any corporation, partnership,
\n joint venture, limited liability company, trust or estate of which (or
\n in which) more than 50% of (a) the issued and outstanding capital stock
\n having ordinary voting power to elect a majority of the Board of
\n Directors of such corporation (irrespective of whether at the time
\n capital stock of any other class or classes of such corporation shall
\n or might have voting power upon the occurrence of any contingency), (b)
\n the interest in the capital or profits of such limited liability
\n company, partnership or joint venture or (c) the beneficial interest in
\n such trust or estate is at the time directly or indirectly owned or
\n controlled by such Person, by such Person and one or more of its other
\n Subsidiaries or by one or more of such Person’s other Subsidiaries.<\/p>\n
“Telerate Page” means, as applicable, page 3740 or 3750 (or
\n any successor pages, respectively) of Telerate Service of Bridge
\n Information Services.<\/p>\n
“Termination Date” means the earlier of (a) December 2, 2004
\n and (b) the date of termination in whole of the Commitments pursuant to
\n Section 2.05(a) or Section 6.01 or, if all Lenders elect to terminate
\n their Commitments as provided therein, Section 2.05(d).<\/p>\n
“Threatened” means, with respect to any action, suit,
\n investigation, litigation or proceeding, a written communication to the
\n Company or a Designated Subsidiary, as the<\/p>\n
17<\/p>\n
case may be, expressing an intention to immediately bring such action,
\n suit, investigation, litigation or proceeding.<\/p>\n
“Utilization” means the decimal fraction equal to the
\n aggregate principal amount of the Advances then outstanding divided by
\n the aggregate amount of the Lenders’ Commitments at such time.<\/p>\n
“Voting Stock” means capital stock issued by a corporation, or
\n equivalent interests in any other Person, the holders of which are
\n ordinarily, in the absence of contingencies, entitled to vote for the
\n election of directors (or persons performing similar functions) of such
\n Person, even if the right so to vote has been suspended by the
\n happening of such a contingency.<\/p>\n
“Withdrawal Liability” has the meaning specified in Part I of
\n Subtitle E of Title IV of ERISA.<\/p>\n
SECTION 1.02. Computation of Time Periods. In this Agreement
\nin the computation of periods of time from a specified date to a later specified
\ndate, the word “from” means “from and including” and the words “to” and “until”
\neach mean “to but excluding”.<\/p>\n
SECTION 1.03. Accounting Terms. All accounting terms not
\nspecifically defined herein shall be construed, and all financial computations
\nand determinations pursuant hereto shall be made, in accordance with generally
\naccepted accounting principles consistent with those applied in the preparation
\nof the financial statements referred to in Section 4.01(e) (“GAAP”); provided,
\nhowever, that, if any changes in accounting principles from those used in the
\npreparation of such financial statements have been required by the rules,
\nregulations, pronouncements or opinions of the Financial Accounting Standards
\nBoard or the American Institute of Certified Public Accountants (or successors
\nthereto or agencies with similar functions) and have been adopted by the Company
\nwith the agreement of its independent certified public accountants, the Lenders
\nagree to consider a request by the Company to amend this Agreement to take
\naccount of such changes.<\/p>\n
ARTICLE II<\/p>\n
AMOUNTS AND TERMS OF THE ADVANCES<\/p>\n
SECTION 2.01. The Revolving Credit Advances. Each Lender
\nseverally agrees, on the terms and conditions hereinafter set forth, to make
\nRevolving Credit Advances to any Borrower from time to time on any Business Day
\nduring the period from the Effective Date until the Termination Date in an
\naggregate amount (based in respect of any Revolving Credit Advance<\/p>\n
18<\/p>\n
denominated in a Major Currency on the Equivalent in Dollars determined on the
\ndate of delivery of the applicable Notice of Revolving Credit Borrowing), not to
\nexceed at any time outstanding such Lender’s Commitment, provided that the
\naggregate amount of the Commitments of the Lenders shall be deemed used from
\ntime to time to the extent of the aggregate amount (based in respect of any
\nCompetitive Bid Advance denominated in a Foreign Currency on the Equivalent in
\nDollars at such time) of the Competitive Bid Advances then outstanding and such
\ndeemed use of the aggregate amount of the Commitments shall be allocated among
\nthe Lenders ratably according to their respective Commitments (such deemed use
\nof the aggregate amount of the Commitments being a “Competitive Bid Reduction”).
\nEach Revolving Credit Borrowing shall be in an aggregate amount not less than
\n$10,000,000 (or the Equivalent thereof in any Major Currency determined on the
\ndate of delivery of the applicable Notice of Revolving Credit Borrowing) or an
\nintegral multiple of $1,000,000 (or the Equivalent thereof in any Major Currency
\ndetermined on the date of delivery of the applicable Notice of Revolving Credit
\nBorrowing) in excess thereof and shall consist of Revolving Credit Advances of
\nthe same Type made on the same day by the Lenders ratably according to their
\nrespective Commitments; provided, however, that if there is no unused portion of
\nthe Commitment of one or more Lenders at the time of any requested Revolving
\nCredit Borrowing such Borrowing shall consist of Revolving Credit Advances of
\nthe same Type made on the same day by the Lender or Lenders who do then have an
\nunused portion of their Commitments ratably according to the unused portion of
\nsuch Commitments. Notwithstanding anything herein to the contrary, no Revolving
\nCredit Borrowing may be made in a Major Currency if, after giving effect to the
\nmaking of such Revolving Credit Borrowing, the Equivalent in Dollars of the
\naggregate amount of outstanding Revolving Credit Advances denominated in Major
\nCurrencies, together with the Equivalent in Dollars of the aggregate amount of
\noutstanding Competitive Bid Advances denominated in Foreign Currencies, would
\nexceed $500,000,000. Within the limits of each Lender’s Commitment, any Borrower
\nmay borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
\nunder this Section 2.01.<\/p>\n
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
\nRevolving Credit Borrowing shall be made on notice, given not later than (x)
\n10:00 A.M. (New York City time) on the third Business Day prior to the date of
\nthe proposed Revolving Credit Borrowing in the case of a Revolving Credit
\nBorrowing consisting of Eurocurrency Rate Advances denominated in any Major
\nCurrency, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
\nthe date of the proposed Revolving Credit Borrowing in the case of a Revolving
\nCredit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars
\nor (z) 9:00 A.M. (New York City time) on the day of the proposed Revolving
\nCredit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
\nRate Advances, by any Borrower to the Agent (and the Agent shall, in the case of
\na Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
\nimmediately relay such notice to the Sub-Agent), which shall give to each Lender
\nprompt notice thereof by telecopier or telex. Each such notice of a Revolving
\nCredit Borrowing (a “Notice of Revolving Credit Borrowing”) shall be by
\ntelephone, confirmed<\/p>\n
19<\/p>\n
immediately in writing, or telecopier or telex in substantially the form of
\nExhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
\nCredit Borrowing, (ii) Type of Advances comprising such Revolving Credit
\nBorrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv)
\nin the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
\nAdvances, initial Interest Period and currency for each such Revolving Credit
\nAdvance. Each Lender shall, before 11:00 A.M. (New York City time) on the date
\nof such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
\nconsisting of Advances denominated in Dollars, and before 11:00 A.M. (London
\ntime) on the date of such Revolving Credit Borrowing, in the case of a Revolving
\nCredit Borrowing consisting of Eurocurrency Rate Advances denominated in any
\nMajor Currency, make available for the account of its Applicable Lending Office
\nto the Agent at the applicable Agent’s account, in same day funds, such Lender’s
\nratable portion (as determined in accordance with Section 2.01) of such
\nRevolving Credit Borrowing. After the Agent’s receipt of such funds and upon
\nfulfillment of the applicable conditions set forth in Article III, the Agent
\nwill make such funds available to the Borrower requesting the Revolving Credit
\nBorrowing at the Agent’s aforesaid address or at the applicable Payment Office,
\nas the case may be.<\/p>\n
(b) Anything in subsection (a) above to the contrary
\nnotwithstanding, a Borrower may not select Eurocurrency Rate Advances for any
\nproposed Revolving Credit Borrowing if the obligation of the Lenders to make
\nEurocurrency Rate Advances shall then be suspended pursuant to Section 2.08 or
\n2.11.<\/p>\n
(c) Each Notice of Revolving Credit Borrowing of any Borrower
\nshall be irrevocable and binding on such Borrower. In the case of any Revolving
\nCredit Borrowing that the related Notice of Revolving Credit Borrowing specifies
\nis to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
\nRevolving Credit Borrowing shall indemnify each Lender against any loss, cost or
\nexpense incurred by such Lender as a result of any failure by such Borrower to
\nfulfill on or before the date specified in such Notice of Revolving Credit
\nBorrowing for such Revolving Credit Borrowing the applicable conditions set
\nforth in Article III, including, without limitation, any loss (including loss of
\nanticipated profits), cost or expense incurred by reason of the liquidation or
\nreemployment of deposits or other funds acquired by such Lender to fund the
\nRevolving Credit Advance to be made by such Lender as part of such Revolving
\nCredit Borrowing when such Revolving Credit Advance, as a result of such
\nfailure, is not made on such date.<\/p>\n
(d) Unless the Agent shall have received notice from a Lender
\nprior to the date of any Revolving Credit Borrowing that such Lender will not
\nmake available to the Agent such Lender’s ratable portion of such Revolving
\nCredit Borrowing, the Agent may assume that such Lender has made such portion
\navailable to the Agent on the date of such Revolving Credit Borrowing in
\naccordance with subsection (a) of this Section 2.02 and the Agent may, in
\nreliance upon such assumption, make available to the Borrower proposing such
\nRevolving Credit Borrowing on such date a corresponding amount. If and to the
\nextent that such Lender shall not have so made such ratable portion available to
\nthe Agent, such Lender and such Borrower severally agree to repay to the Agent
\nforthwith on demand such corresponding amount together with interest thereon,
\nfor each day from the date such amount is made available to such Borrower until
\nthe date such amount is repaid to the Agent, at (i) in the case of such
\nBorrower, the higher of (A) the interest rate applicable at the time to
\nRevolving Credit Advances comprising such Revolving Credit<\/p>\n
20<\/p>\n
Borrowing and (B) the cost of funds incurred by the Agent in respect of such
\namount and (ii) in the case of such Lender, (A) the Federal Funds Rate in the
\ncase of Advances denominated in Dollars or (B) the cost of funds incurred by the
\nAgent in respect of such amount in the case of Advances denominated in any Major
\nCurrency. If such Lender shall repay to the Agent such corresponding amount,
\nsuch amount so repaid shall constitute such Lender’s Revolving Credit Advance as
\npart of such Revolving Credit Borrowing for purposes of this Agreement.<\/p>\n
(e) The failure of any Lender to make the Revolving Credit
\nAdvance to be made by it as part of any Revolving Credit Borrowing shall not
\nrelieve any other Lender of its obligation, if any, hereunder to make its
\nRevolving Credit Advance on the date of such Revolving Credit Borrowing, but no
\nLender shall be responsible for the failure of any other Lender to make the
\nRevolving Credit Advance to be made by such other Lender on the date of any
\nRevolving Credit Borrowing.<\/p>\n
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
\nseverally agrees that any Borrower may request Competitive Bid Borrowings under
\nthis Section 2.03 from time to time on any Business Day during the period from
\nthe date hereof until the date occurring seven days prior to the Termination
\nDate in the manner set forth below; provided that, following the making of each
\nCompetitive Bid Borrowing, the aggregate amount (based in respect of any Advance
\ndenominated in a Foreign Currency on the Equivalent in Dollars on such Business
\nDay) of the Advances then outstanding shall not exceed the aggregate amount of
\nthe Commitments of the Lenders (computed without regard to any Competitive Bid
\nReduction). Notwithstanding anything herein to the contrary, no Competitive Bid
\nBorrowing may be made in a Foreign Currency if, after giving effect to the
\nmaking of such Revolving Credit Borrowing, the Equivalent in Dollars of the
\naggregate amount of outstanding Competitive Bid Advances denominated in Foreign
\nCurrencies, together with the Equivalent in Dollars of the aggregate amount of
\noutstanding Revolving Credit Advances denominated in Major Currencies, would
\nexceed $500,000,000.<\/p>\n
(i) Any Borrower may request a Competitive Bid Borrowing under
\n this Section 2.03 by delivering to the Agent (and the Agent shall, in
\n the case of a Competitive Bid Borrowing not consisting of Fixed Rate
\n Advances or LIBO Rate Advances to be denominated in Dollars,
\n immediately notify the Sub-Agent), by telecopier or telex, a notice of
\n a Competitive Bid Borrowing (a “Notice of Competitive Bid Borrowing”),
\n in<\/p>\n
21<\/p>\n
substantially the form of Exhibit B-2 hereto, specifying therein the
\n requested (A) date of such proposed Competitive Bid Borrowing, (B)
\n aggregate amount of such proposed Competitive Bid Borrowing, (C)
\n interest rate basis and day count convention to be offered by the
\n Lenders, (D) currency of such proposed Competitive Bid Borrowing, (E)
\n in the case of a Competitive Bid Borrowing consisting of LIBO Rate
\n Advances, Interest Period of each Competitive Bid Advance to be made as
\n part of such Competitive Bid Borrowing, or in the case of a Competitive
\n Bid Borrowing consisting of Fixed Rate Advances or Local Rate Advances,
\n maturity date for repayment of each Fixed Rate Advance or Local Rate
\n Advance to be made as part of such Competitive Bid Borrowing (which
\n maturity date may not be earlier than the date occurring five days
\n after the date of such Competitive Bid Borrowing or later than the
\n Termination Date), (F) interest payment date or dates relating thereto,
\n (G) location of such Borrower’s account to which funds are to be
\n advanced, and (H) other terms (if any) to be applicable to such
\n Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
\n time) at least one Business Day prior to the date of the proposed
\n Competitive Bid Borrowing, if such Borrower shall specify in its Notice
\n of Competitive Bid Borrowing that the rates of interest to be offered
\n by the Lenders shall be fixed rates per annum (each Advance comprising
\n any such Competitive Bid Borrowing being referred to herein as a “Fixed
\n Rate Advance”) and that the Advances comprising such proposed
\n Competitive Bid Borrowing shall be denominated in Dollars, (x) 10:00
\n A.M. (New York City time) at least four Business Days prior to the date
\n of the proposed Competitive Bid Borrowing, if such Borrower shall
\n instead specify in its Notice of Competitive Bid Borrowing that the
\n Advances comprising such Competitive Bid Borrowing shall be LIBO Rate
\n Advances denominated in Dollars, (y) 3:00 P.M. (New York City time) at
\n least three Business Days prior to the date of the proposed Competitive
\n Bid Borrowing, if such Borrower shall specify in the Notice of
\n Competitive Bid Borrowing that the Advances comprising such proposed
\n Competitive Bid Borrowing shall be either Fixed Rate Advances
\n denominated in any Foreign Currency or Local Rate Advances denominated
\n in any Foreign Currency and (z) 3:00 P.M. (New York City time) at least
\n five Business Days prior to the date of the proposed Competitive Bid
\n Borrowing, if such Borrower shall instead specify in its Notice of
\n Competitive Bid Borrowing that the Advances comprising such Competitive
\n Bid Borrowing shall be LIBO Rate Advances denominated in any Foreign
\n Currency. Each Notice of Competitive Bid Borrowing shall be irrevocable
\n and binding on such Borrower. Any Notice of Competitive Bid Borrowing
\n by a Designated Subsidiary shall be given to the Agent in accordance
\n with the preceding sentence through the Company on behalf of such
\n Designated Subsidiary. The Agent shall in turn promptly notify each
\n Lender of each request for a Competitive Bid Borrowing received by it
\n from such Borrower by sending such Lender a copy of the related Notice
\n of Competitive Bid Borrowing.<\/p>\n
22<\/p>\n
(ii) Each Lender may, if, in its sole discretion, it elects to
\n do so, irrevocably offer to make one or more Competitive Bid Advances
\n to the Borrower proposing the Competitive Bid Borrowing as part of such
\n proposed Competitive Bid Borrowing at a rate or rates of interest
\n specified by such Lender in its sole discretion, by notifying the Agent
\n (which shall give prompt notice thereof to such Borrower and to the
\n Sub-Agent, if applicable), (A) before 9:30 A.M. (New York City time) on
\n the date of such proposed Competitive Bid Borrowing, in the case of a
\n Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
\n in Dollars, (B) before 10:00 A.M. (New York City time) three Business
\n Days before the date of such proposed Competitive Bid Borrowing, in the
\n case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
\n denominated in Dollars, (C) before 10:00 A.M. (New York City time) on
\n the second Business Day prior to the date of such proposed Competitive
\n Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
\n either Fixed Rate Advances denominated in any Foreign Currency or Local
\n Rate Advances denominated in any Foreign Currency and (D) before 10:00
\n A.M. (New York City time) four Business Days before the date of such
\n proposed Competitive Bid Borrowing, in the case of a Competitive Bid
\n Borrowing consisting of LIBO Rate Advances denominated in any Foreign
\n Currency, of the minimum amount and maximum amount of each Competitive
\n Bid Advance which such Lender would be willing to make as part of such
\n proposed Competitive Bid Borrowing (which amounts, or the Equivalent
\n thereof in Dollars, as the case may be, may, subject to the proviso to
\n the first sentence of this Section 2.03(a), exceed such Lender’s
\n Commitment, if any), the rate or rates of interest therefor and such
\n Lender’s Applicable Lending Office with respect to such Competitive Bid
\n Advance; provided that if the Agent in its capacity as a Lender shall,
\n in its sole discretion, elect to make any such offer, it shall notify
\n such Borrower of such offer at least 30 minutes before the time and on
\n the date on which notice of such election is to be given to the Agent,
\n by the other Lenders. If any Lender shall elect not to make such an
\n offer, such Lender shall so notify the Agent, before 10:00 A.M. (New
\n York City time) (and the Agent shall notify the Sub-Agent, if
\n applicable) on the date on which notice of such election is to be given
\n to the Agent by the other Lenders, and such Lender shall not be
\n obligated to, and shall not, make any Competitive Bid Advance as part
\n of such Competitive Bid Borrowing; provided that the failure by any
\n Lender to give such notice shall not cause such Lender to be obligated
\n to make any Competitive Bid Advance as part of such proposed
\n Competitive Bid Borrowing.<\/p>\n
(iii) The Borrower proposing the Competitive Bid Advance
\n shall, in turn, (A) before 10:30 A.M. (New York City time) on the date
\n of such proposed Competitive Bid Borrowing, in the case of a
\n Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
\n in Dollars, (B) before 11:00 A.M. (New York City time) three Business
\n Days before the date of such proposed Competitive Bid Borrowing, in the
\n case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
\n denominated in<\/p>\n
23<\/p>\n
Dollars, (C) before 10:00 A.M. (New York City time) on the Business Day
\n prior to the date of such Competitive Bid Borrowing, in the case of a
\n Competitive Bid Borrowing consisting of either Fixed Rate Advances
\n denominated in any Foreign Currency or Local Rate Advances denominated
\n in any Foreign Currency and (D) before 10:00 A.M. (New York City time)
\n three Business Days before the date of such proposed Competitive Bid
\n Borrowing, in the case of a Competitive Bid Borrowing consisting of
\n LIBO Rate Advances denominated in any Foreign Currency, either:<\/p>\n
(x) cancel such Competitive Bid Borrowing by giving
\n the Agent notice to that effect, or<\/p>\n
(y) accept one or more of the offers made by any
\n Lender or Lenders pursuant to paragraph (ii) above, in its
\n sole discretion, by giving notice to the Agent (and the Agent
\n shall give notice to the Sub-Agent, if applicable) of the
\n amount of each Competitive Bid Advance (which amount shall be
\n equal to or greater than the minimum amount, and equal to or
\n less than the maximum amount, notified to such Borrower by the
\n Agent on behalf of such Lender for such Competitive Bid
\n Advance pursuant to paragraph (ii) above) to be made by each
\n Lender as part of such Competitive Bid Borrowing, and reject
\n any remaining offers made by Lenders pursuant to paragraph
\n (ii) above by giving the Agent notice to that effect;
\n provided, however, that such Borrower shall not accept any
\n offer in excess of the requested bid amount for any maturity.
\n Such Borrower shall accept the offers made by any Lender or
\n Lenders to make Competitive Bid Advances in order of the
\n lowest to the highest rates of interest offered by such
\n Lenders. If two or more Lenders have offered the same interest
\n rate, the amount to be borrowed at such interest rate will be
\n allocated among such Lenders in proportion to the amount that
\n each such Lender offered at such interest rate.<\/p>\n
(iv) If the Borrower proposing the Competitive Bid Borrowing
\n notifies the Agent that such Competitive Bid Borrowing is canceled
\n pursuant to paragraph (iii)(x) above, the Agent shall give prompt
\n notice thereof to the Lenders and such Competitive Bid Borrowing shall
\n not be made.<\/p>\n
(v) If the Borrower proposing the Competitive Bid Borrowing
\n accepts one or more of the offers made by any Lender or Lenders
\n pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
\n notify (A) each Lender that has made an offer as described in paragraph
\n (ii) above, of the date and aggregate amount of such Competitive Bid
\n Borrowing and whether or not any offer or offers made by such Lender
\n pursuant to paragraph (ii) above have been accepted by the Borrower,
\n (B) each Lender that is to make a Competitive Bid Advance as part of
\n such Competitive Bid Borrowing, of the amount of each Competitive Bid
\n Advance to be made by such Lender as part of such Competitive<\/p>\n
24<\/p>\n
Bid Borrowing, and (C) each Lender that is to make a Competitive Bid
\n Advance as part of such Competitive Bid Borrowing, upon receipt, that
\n the Agent has received forms of documents appearing to fulfill the
\n applicable conditions set forth in Article III. Each Lender that is to
\n make a Competitive Bid Advance as part of such Competitive Bid
\n Borrowing shall, before 11:00 A.M. (New York City time), in the case of
\n Competitive Bid Advances to be denominated in Dollars or 11:00 A.M.
\n (London time), in the case of Competitive Bid Advances to be
\n denominated in any Foreign Currency, on the date of such Competitive
\n Bid Borrowing specified in the notice received from the Agent pursuant
\n to clause (A) of the preceding sentence or any later time when such
\n Lender shall have received notice from the Agent pursuant to clause (C)
\n of the preceding sentence, make available for the account of its
\n Applicable Lending Office to the Agent (x) in the case of a Competitive
\n Bid Borrowing denominated in Dollars, at its address referred to in
\n Section 9.02, in same day funds, such Lender’s portion of such
\n Competitive Bid Borrowing in Dollars, and (y) in the case of a
\n Competitive Bid Borrowing in a Foreign Currency, at the Payment Office
\n for such Foreign Currency as shall have been notified by the Agent to
\n the Lenders prior thereto, in same day funds, such Lender’s portion of
\n such Competitive Bid Borrowing in such Foreign Currency. Upon
\n fulfillment of the applicable conditions set forth in Article III and
\n after receipt by the Agent of such funds, the Agent will make such
\n funds available to such Borrower’s account at the location specified by
\n such Borrower in its Notice of Competitive Bid Borrowing. Promptly
\n after each Competitive Bid Borrowing the Agent will notify each Lender
\n of the amount of such Competitive Bid Borrowing, the consequent
\n Competitive Bid Reduction and the dates upon which such Competitive Bid
\n Reduction commenced and will terminate.<\/p>\n
(vi) If the Borrower proposing the Competitive Bid Borrowing
\n notifies the Agent that it accepts one or more of the offers made by
\n any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
\n of acceptance shall be irrevocable and binding on such Borrower. Such
\n Borrower shall indemnify each Lender against any loss, cost or expense
\n incurred by such Lender as a result of any failure by such Borrower to
\n fulfill on or before the date specified in the related Notice of
\n Competitive Bid Borrowing for such Competitive Bid Borrowing the
\n applicable conditions set forth in Article III, including, without
\n limitation, any loss (including loss of anticipated profits), cost or
\n expense incurred by reason of the liquidation or reemployment of
\n deposits or other funds acquired by such Lender to fund the Competitive
\n Bid Advance to be made by such Lender as part of such Competitive Bid
\n Borrowing when such Competitive Bid Advance, as a result of such
\n failure, is not made on such date.<\/p>\n
(b) Each Competitive Bid Borrowing shall be in an aggregate
\namount not less than $10,000,000 (or the Equivalent thereof in any Foreign
\nCurrency, determined as of the time of the applicable<\/p>\n
25<\/p>\n
Notice of Competitive Bid Borrowing) or an integral multiple of $1,000,000 (or
\nthe Equivalent thereof in any Foreign Currency, determined as of the time of the
\napplicable Notice of Competitive Bid Borrowing) in excess thereof and, following
\nthe making of each Competitive Bid Borrowing, the Borrower that has borrowed
\nsuch Competitive Bid Borrowing shall be in compliance with the limitation set
\nforth in the proviso to the first sentence of subsection (a) above.<\/p>\n
(c) Within the limits and on the conditions set forth in this
\nSection 2.03, any Borrower may from time to time borrow under this Section 2.03,
\nrepay or prepay pursuant to subsection (d) below, and reborrow under this
\nSection 2.03, provided that a Competitive Bid Borrowing shall not be made within
\nthree Business Days of the date of any other Competitive Bid Borrowing.<\/p>\n
(d) Any Borrower that has borrowed through a Competitive Bid
\nBorrowing shall repay to the Agent for the account of each Lender that has made
\na Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
\n(such maturity date being that specified by such Borrower for repayment of such
\nCompetitive Bid Advance in the related Notice of Competitive Bid Borrowing
\ndelivered pursuant to subsection (a)(i) above and provided in the Competitive
\nBid Note evidencing such Competitive Bid Advance), the then unpaid principal
\namount of such Competitive Bid Advance. Such Borrower shall have no right to
\nprepay any principal amount of any Competitive Bid Advance unless, and then only
\non the terms, specified by such Borrower for such Competitive Bid Advance in the
\nrelated Notice of Competitive Bid Borrowing delivered pursuant to subsection
\n(a)(i) above and set forth in the Competitive Bid Note evidencing such
\nCompetitive Bid Advance.<\/p>\n
(e) Each Borrower that has borrowed through a Competitive Bid
\nBorrowing shall pay interest on the unpaid principal amount of each Competitive
\nBid Advance comprising such Competitive Bid Borrowing from the date of such
\nCompetitive Bid Advance to the date the principal amount of such Competitive Bid
\nAdvance is repaid in full, at the rate of interest for such Competitive Bid
\nAdvance specified by the Lender making such Competitive Bid Advance in its
\nnotice with respect thereto delivered pursuant to subsection (a)(ii) above,
\npayable on the interest payment date or dates specified by such Borrower for
\nsuch Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
\ndelivered pursuant to subsection (a)(i) above, as provided in the Competitive
\nBid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
\nthe continuance of an Event of Default under Section 6.01(a), such Borrower
\nshall pay interest on the amount of unpaid principal of and interest on each
\nCompetitive Bid Advance owing to a Lender, payable in arrears on the date or
\ndates interest is payable thereon, at a rate per annum equal at all times to 1%
\nper annum above the rate per annum required to be paid on such Competitive Bid
\nAdvance under the terms of the Competitive Bid Note evidencing such Competitive
\nBid Advance unless otherwise agreed in such Competitive Bid Note.<\/p>\n
26<\/p>\n
(f) The indebtedness of any Borrower resulting from each
\nCompetitive Bid Advance made to such Borrower as part of a Competitive Bid
\nBorrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
\npayable to the order of the Lender making such Competitive Bid Advance.<\/p>\n
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
\npay to the Agent for the account of each Lender a facility fee on the aggregate
\namount of such Lender’s Commitment from the date hereof in the case of each
\nInitial Lender and from the effective date specified in the Assignment and
\nAcceptance pursuant to which it became a Lender in the case of each other Lender
\nuntil the Termination Date at a rate per annum equal to the Applicable
\nPercentage in effect from time to time, payable in arrears quarterly on the last
\nday of each March, June, September and December, commencing December 31, 1999,
\nand on the Termination Date.<\/p>\n
(b) Agent’s Fees. The Company shall pay to the Agent for its
\nown account such fees, and at such times, as the Company and the Agent may
\nseparately agree.<\/p>\n
SECTION 2.05. Termination or Reduction of the Commitments. (a)
\nOptional Ratable Termination or Reduction. The Company shall have the right,
\nupon at least three Business Days’ notice to the Agent, to terminate in whole or
\nreduce ratably in part the unused portions of the respective Commitments of the
\nLenders, provided that each partial reduction shall be in an aggregate amount
\nnot less than $10,000,000 or an integral multiple of $1,000,000 in excess
\nthereof and provided further that the aggregate amount of the Commitments of the
\nLenders shall not be reduced to an amount that is less than the sum of the
\naggregate principal amount of the Competitive Bid Advances denominated in
\nDollars then outstanding plus the Equivalent in Dollars (determined as of the
\ndate of the notice of prepayment) of the aggregate principal amount of the
\nCompetitive Bid Advances denominated in Foreign Currencies then outstanding. The
\naggregate amount of the Commitments, once reduced as provided in this Section
\n2.05(a), may not be reinstated.<\/p>\n
(b) Non-Ratable Termination by Assignment. The Company shall
\nhave the right, upon at least ten Business Days’ written notice to the Agent
\n(which shall then give prompt notice thereof to the relevant Lender), to require
\nany Lender to assign, pursuant to and in accordance with the provisions of
\nSection 9.07, all of its rights and obligations under this Agreement and under
\nthe Notes to an Eligible Assignee selected by the Company; provided, however,
\nthat (i) no Event of Default shall have occurred and be continuing at the time
\nof such request and at the time of such assignment; (ii) the assignee shall have
\npaid to the assigning Lender the aggregate principal amount of, and any interest
\naccrued and unpaid to the date of such assignment on, the Note or Notes of such
\nLender; (iii) the Company shall have paid to the assigning Lender any and all
\nfacility fees and other fees payable to such Lender and all other accrued and
\nunpaid amounts owing to such Lender under any provision of this Agreement
\n(including, but not limited to, any increased costs or other additional amounts
\nowing under<\/p>\n
27<\/p>\n
Section 2.10 and any indemnification for Taxes under Section 2.13) as of the
\neffective date of such assignment; and (iv) if the assignee selected by the
\nCompany is not an existing Lender, such assignee or the Company shall have paid
\nthe processing and recordation fee required under Section 9.07(a) for such
\nassignment; provided further that the Company shall have no right to replace
\nmore than three Lenders in any calendar year pursuant to this Section 2.05(b);
\nand provided further that the assigning Lender’s rights under Sections 2.10,
\n2.13 and 9.04, and its obligations under Section 8.05, shall survive such
\nassignment as to matters occurring prior to the date of assignment.<\/p>\n
(c) Non-Ratable Reduction. (i) The Company shall have the
\nright, at any time other than during any Rating Condition, upon at least ten
\nBusiness Days’ notice to a Lender (with a copy to the Agent), to terminate in
\nwhole such Lender’s Commitment (determined without giving effect to any
\nCompetitive Bid Reduction). Such termination shall be effective, (i) with
\nrespect to such Lender’s unused Commitment, on the date set forth in such
\nnotice, provided, however, that such date shall be no earlier than ten Business
\nDays after receipt of such notice and (ii) with respect to each Advance
\noutstanding to such Lender, on the last day of the then current Interest Period
\nrelating to such Advance; provided further, however, that such termination shall
\nnot be effective, if, after giving effect to such termination, the Company
\nwould, under this Section 2.05(c), reduce the Lenders’ Commitments in any
\ncalendar year by an amount in excess of the Commitments of any three Lenders or
\n$240,000,000, whichever is greater on the date of such termination.
\nNotwithstanding the preceding proviso, the Company may terminate in whole the
\nCommitment of any Lender in accordance with the terms and conditions set forth
\nin Section 2.05(b). Upon termination of a Lender’s Commitment under this Section
\n2.05(c), the Company will pay or cause to be paid all principal of, and interest
\naccrued to the date of such payment on, Advances owing to such Lender and pay
\nany facility fees or other fees payable to such Lender pursuant to the
\nprovisions of Section 2.04, and all other amounts payable to such Lender
\nhereunder (including, but not limited to, any increased costs or other amounts
\nowing under Section 2.10 and any indemnification for Taxes under Section 2.13);
\nand upon such payments, the obligations of such Lender hereunder shall, by the
\nprovisions hereof, be released and discharged; provided, however, that such
\nLender’s rights under Sections 2.10, 2.13 and 9.04, and its obligations under
\nSection 8.05 shall survive such release and discharge as to matters occurring
\nprior to such date. The aggregate amount of the Commitments of the Lenders once
\nreduced pursuant to this Section 2.05(c) may not be reinstated.<\/p>\n
(ii) For purposes of this Section 2.05(c) only, the term
\n“Rating Condition” shall mean a period commencing with notice (a “Rating
\nCondition Notice”) by the Agent to the Company and the Lenders to the effect
\nthat the Agent has been informed that the rating of the senior public Debt of
\nthe Company is unsatisfactory under the standard set forth in the next sentence,
\nand ending with notice by the Agent to the Company and the Lenders to the effect
\nthat such condition no longer exists. The Agent shall give a Rating Condition
\nNotice promptly upon receipt from the Company or any Lender of notice stating,
\nin effect, that both of S&P and<\/p>\n
28<\/p>\n
Moody’s (or any successor by merger or consolidation to the business of either
\nthereof), respectively, then rate the senior public Debt of the Company lower
\nthan BBB- and Baa3. The Company agrees to give notice to the Agent forthwith
\nupon any change in a rating by either such organization of the senior public
\nDebt of the Company; the Agent shall have no duty whatsoever to verify the
\naccuracy of any such notice from the Company or any Lender or to monitor
\nindependently the ratings of the senior public Debt of the Company and no Lender
\nshall have any duty to give any such notice. The Agent shall give notice to the
\nLenders and the Company as to the termination of a Rating Condition promptly
\nupon receiving a notice from the Company to the Agent (which notice the Agent
\nshall promptly notify to the Lenders) stating that the rating of the senior
\npublic Debt of the Company does not meet the standard set forth in the second
\nsentence of this clause (ii), and requesting that the Agent notify the Lenders
\nof the termination of the Rating Condition. The Rating Condition shall terminate
\nupon the giving of such notice by the Agent.<\/p>\n
(d) Termination by a Lender. In the event that a Change of
\nControl occurs, each Lender may, by notice to the Company and the Agent given
\nnot later than 50 calendar days after such Change of Control, terminate its
\nCommitment, which Commitment shall be terminated effective as of the later of
\n(i) the date that is 60 calendar days after such Change of Control or (ii) the
\nend of the Interest Period for any Advance outstanding at the time of such
\nChange of Control or for any Advance made pursuant to the next sentence of this
\nSection 2.05(d). Upon the occurrence of a Change of Control, each Borrower’s
\nright to make a Borrowing under this Agreement shall be suspended for a period
\nof 60 calendar days, except for Advances having an interest period ending not
\nlater than 90 calendar days after such Change of Control. A notice of
\ntermination pursuant to this Section 2.05(d) shall not have the effect of
\naccelerating any outstanding Advance of such Lender and the Notes of such
\nLender.<\/p>\n
SECTION 2.06. Repayment of Advances. (a) Revolving Credit
\nAdvances. Each Borrower shall repay to the Administrative Agent, for the ratable
\naccount of the Lenders, on the Termination Date the aggregate principal amount
\nof all Revolving Credit Advances made to it outstanding on such date.<\/p>\n
(b) Competitive Bid Advances. Each Borrower shall repay to the
\nAdministrative Agent, for the account of each Lender that has made a Competitive
\nBid Advance, the aggregate outstanding principal amount of each Competitive Bid
\nAdvance made to such Borrower and owing to such Lender on the earlier of (i) the
\nmaturity date therefor, specified in the related Notice of Competitive Bid
\nBorrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
\nDate.<\/p>\n
SECTION 2.07. Interest on Revolving Credit Advances. (a)
\nScheduled Interest. Each Borrower shall pay interest on the unpaid principal
\namount of each Revolving Credit Advance owing by such Borrower to each Lender
\nfrom the date of such Revolving Credit Advance until such principal amount shall
\nbe paid in full, at the following rates per annum:<\/p>\n
29<\/p>\n
(i) Base Rate Advances. During such periods as such Revolving
\n Credit Advance is a Base Rate Advance, a rate per annum equal at all
\n times to the sum of (x) the Base Rate in effect from time to time plus
\n (y) the Applicable Utilization Fee in effect from time to time, payable
\n in arrears quarterly on the last day of each March, June, September and
\n December during such periods and on the date such Base Rate Advance
\n shall be paid in full.<\/p>\n
(ii) Eurocurrency Rate Advances. During such periods as such
\n Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
\n annum equal at all times during each Interest Period for such Revolving
\n Credit Advance to the sum of (x) the Eurocurrency Rate for such
\n Interest Period for such Revolving Credit Advance plus (y) the
\n Applicable Margin in effect from time to time plus (z) the Applicable
\n Utilization Fee in effect from time to time, payable in arrears on the
\n last day of such Interest Period and, if such Interest Period has a
\n duration of more than three months, on each day that occurs during such
\n Interest Period every three months from the first day of such Interest
\n Period and on the date such Eurocurrency Rate Advance shall be
\n Converted or paid in full.<\/p>\n
(b) Default Interest. Upon the occurrence and during the
\ncontinuance of an Event of Default under Section 6.01(a), each Borrower shall
\npay interest on (i) the unpaid principal amount of each Revolving Credit Advance
\nowing by such Borrower to each Lender, payable in arrears on the dates referred
\nto in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
\n1% per annum above the rate per annum required to be paid on such Revolving
\nCredit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
\nfullest extent permitted by law, the amount of any interest, fee or other amount
\npayable hereunder by such Borrower that is not paid when due, from the date such
\namount shall be due until such amount shall be paid in full, payable in arrears
\non the date such amount shall be paid in full and on demand, at a rate per annum
\nequal at all times to 1% per annum above the rate per annum required to be paid
\non such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.<\/p>\n
SECTION 2.08. Interest Rate Determination. (a) Each Reference
\nBank agrees to furnish to the Agent timely information for the purpose of
\ndetermining each Eurocurrency Rate and each LIBO Rate if the applicable Telerate
\nPage is unavailable. If any one or more of the Reference Banks shall not furnish
\nsuch timely information to the Agent for the purpose of determining any such
\ninterest rate, the Agent shall determine such interest rate on the basis of
\ntimely information furnished by the remaining Reference Banks. The Agent shall
\ngive prompt notice to the Company and the Lenders of the applicable interest
\nrate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
\nrate, if any, furnished by each Reference Bank for the purpose of determining
\nthe interest rate under Section 2.07(a)(ii).<\/p>\n
30<\/p>\n
(b) If, with respect to any Eurocurrency Rate Advances, the
\nMajority Lenders notify the Agent that (i) they are unable to obtain matching
\ndeposits in the London interbank market at or about 11:00 A.M. (London time) on
\nthe second Business Day before the making of a Borrowing in sufficient amounts
\nto fund their respective Revolving Credit Advances as part of such Borrowing
\nduring its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
\nfor such Advances will not adequately reflect the cost to such Majority Lenders
\nof making, funding or maintaining their respective Eurocurrency Rate Advances
\nfor such Interest Period, the Agent shall forthwith so notify each Borrower and
\nthe Lenders, whereupon (A) the Borrower will, on the last day of the then
\nexisting Interest Period therefor, (1) if such Eurocurrency Rate Advances are
\ndenominated in Dollars, either (x) prepay such Advances or (y) Convert such
\nAdvances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are
\ndenominated in any Major Currency, either (x) prepay such Advances or (y)
\nredenominate such Advances into an Equivalent amount of Dollars and Convert such
\nAdvances into Base Rate Advances, and (B) the obligation of the Lenders to make
\nEurocurrency Rate Advances in the same currency as such Eurocurrency Rate
\nAdvances shall be suspended until the Agent shall notify each Borrower and the
\nLenders that the circumstances causing such suspension no longer exist.<\/p>\n
(c) If any Borrower, in requesting a Revolving Credit
\nBorrowing comprised of Eurocurrency Rate Advances, shall fail to select the
\nduration of the Interest Period for such Eurocurrency Rate Advances in
\naccordance with the provisions contained in the definition of “Interest Period”
\nin Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
\nand such Advances will (to the extent such Eurocurrency Rate Advances remain
\noutstanding on such day) automatically, on the last day of the then existing
\nInterest Period therefor, (i) if such Eurocurrency Rate Advances are denominated
\nin Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
\nAdvances are denominated in any Major Currency, be redenominated into an
\nEquivalent amount of Dollars and be Converted into Base Rate Advances.<\/p>\n
(d) Upon the occurrence and during the continuance of any
\nEvent of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
\n(to the extent such Eurocurrency Rate Advance remains outstanding on such day)
\nautomatically, on the last day of the then existing Interest Period therefor,
\n(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
\ninto a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
\ndenominated in any Major Currency, be redenominated into an Equivalent amount of
\nDollars and Converted into a Base Rate Advance and (ii) the obligation of the
\nLenders to make Eurocurrency Rate Advances shall be suspended.<\/p>\n
(e) If the applicable Telerate Page is unavailable and fewer
\nthan two Reference Banks furnish timely information to the Agent for determining
\nthe Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
\nRate Advances, as the case may be,<\/p>\n
31<\/p>\n
(i) the Agent shall forthwith notify the relevant Borrower and
\n the Lenders that the interest rate cannot be determined for such
\n Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,<\/p>\n
(ii) with respect to Eurocurrency Rate Advances, each such
\n Advance will (to the extent such Eurocurrency Rate Advance remains
\n outstanding on such day) automatically, on the last day of the then
\n existing Interest Period therefor, (A) if such Eurocurrency Rate
\n Advance is denominated in Dollars, be prepaid by the applicable
\n Borrower or be automatically Converted into a Base Rate Advance and (B)
\n if such Eurocurrency Rate Advance is denominated in any Major Currency,
\n be prepaid by the applicable Borrower or be automatically redenominated
\n into an Equivalent amount of Dollars and Converted into a Base Rate
\n Advance (or if such Advance is then a Base Rate Advance, will continue
\n as a Base Rate Advance), and<\/p>\n
(iii) the obligation of the Lenders to make Eurocurrency Rate
\n Advances or LIBO Rate Advances shall be suspended until the Agent shall
\n notify the Borrowers and the Lenders that the circumstances causing
\n such suspension no longer exist.<\/p>\n
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
\nOptional Prepayments. Each Borrower may, upon notice to the Agent stating the
\nproposed date and aggregate principal amount of the prepayment, given not later
\nthan 11:00 A.M. (New York City time) on the second Business Day prior to the
\ndate of such proposed prepayment, in the case of Eurocurrency Rate Advances, and
\nnot later than 11:00 A.M. (New York City time) on the day of such proposed
\nprepayment, in the case of Base Rate Advances, and, if such notice is given,
\nsuch Borrower shall, prepay the outstanding principal amount of the Revolving
\nCredit Advances comprising part of the same Revolving Credit Borrowing in whole
\nor ratably in part, together with accrued interest to the date of such
\nprepayment on the principal amount prepaid; provided, however, that (x) each
\npartial prepayment shall be in an aggregate principal amount not less than
\n$10,000,000 or the Equivalent thereof in a Major Currency (determined on the
\ndate notice of prepayment is given) or an integral multiple of $1,000,000 or the
\nEquivalent thereof in a Major Currency (determined on the date notice of
\nprepayment is given) in excess thereof and (y) in the event of any such
\nprepayment of a Eurocurrency Rate Advance other than on the last day of the
\nInterest Period therefor, such Borrower shall be obligated to reimburse the
\nLenders in respect thereof pursuant to Section 9.04(c). Each notice of
\nprepayment by a Designated Subsidiary shall be given to the Administrative Agent
\nthrough the Company.<\/p>\n
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A)
\nthe aggregate principal amount of all Advances denominated in Dollars then
\noutstanding plus (B) the Equivalent in Dollars (determined on the third Business
\nDay prior to such date) of the aggregate principal amount of all Advances
\ndenominated in Foreign Currencies then outstanding exceeds 103% of the aggregate
\nCommitments of the Lenders on such date, the Company and each other<\/p>\n
32<\/p>\n
Borrower, if any, shall thereupon promptly prepay the outstanding principal
\namount of any Advances owing by such Borrower in an aggregate amount sufficient
\nto reduce such sum to an amount not to exceed 100% of the aggregate Commitments
\nof the Lenders on such date, together with any interest accrued to the date of
\nsuch prepayment on the principal amounts prepaid and, in the case of any
\nprepayment of a Eurocurrency Rate Advance, a LIBO Rate Advance or a Local Rate
\nAdvance on a date other than the last day of an Interest Period or at its
\nmaturity, any additional amounts which such Borrower shall be obligated to
\nreimburse to the Lenders in respect thereof pursuant to Section 9.04(c). The
\nAgent shall give prompt notice of any prepayment required under this Section
\n2.09(b)(i) to the Borrowers and the Lenders.<\/p>\n
(ii) If, on any date, the sum of (A) the Equivalent in Dollars
\nof the aggregate principal amount of all Eurocurrency Rate Advances denominated
\nin Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
\naggregate principal amount of all Competitive Bid Advances denominated in
\nForeign Currencies then outstanding, shall exceed 110% of $500,000,000, the
\nCompany and each other Borrower shall prepay the outstanding principal amount of
\nany such Eurocurrency Rate Advances or any such LIBO Rate Advances owing by such
\nBorrower, on the last day of the Interest Periods relating to such Advances, in
\nan aggregate amount sufficient to reduce such sum to an amount not to exceed
\n$500,000,000, together with any interest accrued to the date of such prepayment
\non the principal amounts prepaid. The Agent shall give prompt notice of any
\nprepayment required under this Section 2.09(b)(ii) to the Borrowers and the
\nLenders.<\/p>\n
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
\nintroduction of or any change in or in the interpretation of any law or
\nregulation or (ii) the compliance with any guideline or request from any central
\nbank or other governmental authority including, without limitation, any agency
\nof the European Union or similar monetary or multinational authority (whether or
\nnot having the force of law), there shall be any increase in the cost to any
\nLender of agreeing to make or making, funding or maintaining Eurocurrency Rate
\nAdvances or LIBO Rate Advances (excluding for purposes of this Section 2.10 any
\nsuch increased costs resulting from (i) Taxes or Other Taxes (as to which
\nSection 2.13 shall govern) and (ii) changes in the basis of taxation of overall
\nnet income or overall gross income by the United States or by the foreign
\njurisdiction or state under the laws of which such Lender is organized or has
\nits Applicable Lending Office or any political subdivision thereof), then the
\nBorrower of such Advances shall from time to time, upon demand by such Lender
\n(with a copy of such demand to the Agent), pay to the Agent for the account of
\nsuch Lender additional amounts sufficient to compensate such Lender for such
\nincreased cost. A certificate as to the amount of such increased cost, submitted
\nto such Borrower and the Agent by such Lender, shall be conclusive and binding
\nfor all purposes, absent manifest error.<\/p>\n
(b) If any Lender determines that compliance with any law or
\nregulation or any guideline or request from any central bank or other
\ngovernmental authority including,<\/p>\n
33<\/p>\n
without limitation, any agency of the European Union or similar monetary or
\nmultinational authority (whether or not having the force of law) affects or
\nwould affect the amount of capital required or expected to be maintained by such
\nLender or any corporation controlling such Lender and that the amount of such
\ncapital is increased by or based upon the existence of such Lender’s commitment
\nto lend hereunder and other commitments of this type, then, upon demand by such
\nLender (with a copy of such demand to the Agent), the Company shall pay to the
\nAgent for the account of such Lender, from time to time as specified by such
\nLender, additional amounts sufficient to compensate such Lender or such
\ncorporation in the light of such circumstances, to the extent that such Lender
\nreasonably determines such increase in capital to be allocable to the existence
\nof such Lender’s commitment to lend hereunder. A certificate as to such amounts
\nsubmitted to the Company and the Agent by such Lender shall be conclusive and
\nbinding for all purposes, absent manifest error.<\/p>\n
(c) Any Lender claiming any additional amounts payable
\npursuant to this Section 2.10 shall, upon the written request of the Company
\ndelivered to such Lender and the Agent, assign, pursuant to and in accordance
\nwith the provisions of Section 9.07, all of its rights and obligations under
\nthis Agreement and under the Notes to an Eligible Assignee selected by the
\nCompany; provided, however, that (i) no Default shall have occurred and be
\ncontinuing at the time of such request and at the time of such assignment; (ii)
\nthe assignee shall have paid to the assigning Lender the aggregate principal
\namount of, and any interest accrued and unpaid to the date of such assignment
\non, the Note or Notes of such Lender; (iii) the Company shall have paid to the
\nassigning Lender any and all facility fees and other fees payable to such Lender
\nand all other accrued and unpaid amounts owing to such Lender under any
\nprovision of this Agreement (including, but not limited to, any increased costs
\nor other additional amounts owing under this Section 2.10, and any
\nindemnification for Taxes under Section 2.13) as of the effective date of such
\nassignment and (iv) if the assignee selected by the Company is not an existing
\nLender, such assignee or the Company shall have paid the processing and
\nrecordation fee required under Section 9.07(a) for such assignment; provided
\nfurther that the assigning Lender’s rights under Sections 2.10, 2.13 and 9.04,
\nand its obligations under Section 8.05, shall survive such assignment as to
\nmatters occurring prior to the date of assignment.<\/p>\n
SECTION 2.11. Illegality. Notwithstanding any other provision
\nof this Agreement, if any Lender shall notify the Agent that the introduction of
\nor any change in or in the interpretation of any law or regulation makes it
\nunlawful, or any central bank or other governmental authority asserts that it is
\nunlawful, for any Lender or its Eurocurrency Lending Office to perform its
\nobligations hereunder to make Eurocurrency Rate Advances in Dollars or any Major
\nCurrency or LIBO Rate Advances in Dollars or in any Foreign Currency or to fund
\nor maintain Eurocurrency Rate Advances in Dollars or in any Major Currency or
\nLIBO Rate Advances in Dollars or in any Foreign Currency hereunder, (a) each
\nsuch Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be,
\nwill automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
\nLIBO Rate Advance is denominated in<\/p>\n
34<\/p>\n
Dollars, be Converted into a Base Rate Advance or an Advance that bears interest
\nat the rate set forth in Section 2.07(a)(i), as the case may be, and (ii) if
\nsuch Eurocurrency Rate Advance or LIBO Rate Advance is denominated in any
\nForeign Currency, be redenominated into an Equivalent amount of Dollars and
\nConverted into a Base Rate Advance or an Advance that bears interest at the rate
\nset forth in Section 2.07(a)(i), as the case may be, and (b) the obligation of
\nthe Lenders to make such Eurocurrency Rate Advances or such LIBO Rate Advances
\nshall be suspended until the Agent shall notify the Borrower and the Lenders
\nthat the circumstances causing such suspension no longer exist.<\/p>\n
SECTION 2.12. Payments and Computations. (a) Each Borrower
\nshall make each payment hereunder and under any Notes, except with respect to
\nprincipal of, interest on, and other amounts relating to, Advances denominated
\nin a Foreign Currency, not later than 11:00 A.M. (New York City time) on the day
\nwhen due in Dollars to the Agent at the applicable Agent’s Account in same day
\nfunds. Each Borrower shall make each payment hereunder and under any Notes with
\nrespect to principal of, interest on, and other amounts relating to Advances
\ndenominated in a Foreign Currency not later than 12:00 Noon (at the Payment
\nOffice for such Foreign Currency) on the day when due in such Foreign Currency
\nto the Agent in same day funds by deposit of such funds to the applicable
\nAgent’s Account. The Agent will promptly thereafter cause to be distributed like
\nfunds relating to the payment of principal or interest or facility fees ratably
\n(other than amounts payable pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10,
\n2.13 or 9.04(c)) to the Lenders for the account of their respective Applicable
\nLending Offices, and like funds relating to the payment of any other amount
\npayable to any Lender to such Lender for the account of its Applicable Lending
\nOffice, in each case to be applied in accordance with the terms of this
\nAgreement. Upon its acceptance of an Assignment and Acceptance and recording of
\nthe information contained therein in the Register pursuant to Section 9.07(c),
\nfrom and after the effective date specified in such Assignment and Acceptance,
\nthe Agent shall make all payments hereunder and under any Notes in respect of
\nthe interest assigned thereby to the Lender assignee thereunder, and the parties
\nto such Assignment and Acceptance shall make all appropriate adjustments in such
\npayments for periods prior to such effective date directly between themselves.<\/p>\n
(b) All computations of interest based on the Base Rate and of
\nfacility fees shall be made by the Agent on the basis of a year of 365 or 366
\ndays, as the case may be, all computations of interest based on the Eurocurrency
\nRate or the Federal Funds Rate shall be made by the Agent on the basis of a year
\nof 360 days and all computations in respect of Competitive Bid Advances shall be
\nmade by the Agent or the Sub-Agent, as the case may be, as specified in the
\napplicable Notice of Competitive Bid Borrowing (or, in each case of Advances
\ndenominated in Foreign Currencies where market practice differs, in accordance
\nwith market practice), in each case for the actual number of days (including the
\nfirst day but excluding the last day) occurring in the period for which such
\ninterest or facility fees are payable. Each determination by the<\/p>\n
35<\/p>\n
Agent of an interest rate hereunder shall be conclusive and binding for all
\npurposes, absent manifest error.<\/p>\n
(c) Whenever any payment hereunder or under the Notes shall be
\nstated to be due on a day other than a Business Day, such payment shall be made
\non the next succeeding Business Day, and such extension of time shall in such
\ncase be included in the computation of payment of interest or facility fee, as
\nthe case may be; provided, however, that, if such extension would cause payment
\nof interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
\nto be made in the next following calendar month, such payment shall be made on
\nthe next preceding Business Day.<\/p>\n
(d) Unless the Agent shall have received notice from any
\nBorrower prior to the date on which any payment is due to the Lenders hereunder
\nthat such Borrower will not make such payment in full, the Agent may assume that
\nsuch Borrower has made such payment in full to the Agent on such date and the
\nAgent may, in reliance upon such assumption, cause to be distributed to each
\nLender on such due date an amount equal to the amount then due such Lender. If
\nand to the extent such Borrower shall not have so made such payment in full to
\nthe Agent, each Lender shall repay to the Agent forthwith on demand such amount
\ndistributed to such Lender together with interest thereon, for each day from the
\ndate such amount is distributed to such Lender until the date such Lender repays
\nsuch amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
\ndenominated in Dollars or (ii) the cost of funds incurred by the Agent in
\nrespect of such amount in the case of Advances denominated in Foreign
\nCurrencies.<\/p>\n
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
\n(including the Company in its capacity as a guarantor under Article VII hereof)
\nhereunder or under the Notes shall be made, in accordance with Section 2.12,
\nfree and clear of and without deduction for any and all present or future taxes,
\nlevies, imposts, deductions, charges or withholdings, and all liabilities with
\nrespect thereto, excluding, in the case of each Lender and the Agent, net income
\ntaxes imposed by the United States and taxes imposed on its overall net income,
\nand franchise taxes imposed on it in lieu of net income taxes, by the
\njurisdiction under the laws of which such Lender or the Agent (as the case may
\nbe) is organized or any political subdivision thereof and, in the case of each
\nLender, taxes imposed on its overall net income, and franchise taxes imposed on
\nit in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable
\nLending Office or any political subdivision thereof (all such non-excluded
\ntaxes, levies, imposts, deductions, charges, withholdings and liabilities in
\nrespect of payments hereunder or under the Notes being hereinafter referred to
\nas “Taxes”). If any Borrower (including the Company in its capacity as a
\nguarantor under Article VII hereof) shall be required by law to deduct any Taxes
\nfrom or in respect of any sum payable hereunder or under any Note to any Lender
\nor the Agent, (i) the sum payable shall be increased as may be necessary so that
\nafter making all required deductions (including deductions applicable to
\nadditional sums payable under this Section 2.13) such Lender or the Agent (as
\nthe case may be) receives an amount equal to the sum it would have received<\/p>\n
36<\/p>\n
had no such deductions been made, (ii) such Borrower shall make such deductions
\nand (iii) such Borrower shall pay the full amount deducted to the relevant
\ntaxation authority or other authority in accordance with applicable law.<\/p>\n
(b) In addition, each Borrower agrees to pay any present or
\nfuture stamp or documentary taxes or any other excise or property taxes, charges
\nor similar levies that arise from any payment made hereunder or under the Notes
\nor from the execution, delivery or registration of, performing under, or
\notherwise with respect to, this Agreement or the Notes (hereinafter referred to
\nas “Other Taxes”).<\/p>\n
(c) Each Borrower shall indemnify each Lender and the Agent
\nfor the full amount of Taxes or Other Taxes (including, without limitation, any
\ntaxes imposed by any jurisdiction on amounts payable under this Section 2.13)
\nimposed on or paid by such Lender or the Agent (as the case may be) and any
\nliability (including penalties, interest and expenses) arising therefrom or with
\nrespect thereto; provided, however, that a Borrower shall not be obligated to
\npay any amounts in respect of penalties, interest or expenses pursuant to this
\nparagraph that are payable solely as a result of (i) the failure on the part of
\nthe pertinent Lender or the Agent to pay over those amounts received from the
\nBorrowers under this clause (c) or (ii) the gross negligence or willful
\nmisconduct on the part of the pertinent Lender or the Agent. This
\nindemnification shall be made within 30 days from the date such Lender or the
\nAgent (as the case may be) makes written demand therefor. Each Lender agrees to
\nprovide reasonably prompt notice to the Agent, the Company and any Borrower of
\nany imposition of Taxes or Other Taxes against such Lender; provided that
\nfailure to give such notice shall not affect such Lender’s rights to
\nindemnification hereunder. Each Lender agrees that it will, promptly upon a
\nrequest by the Company or a Borrower having made an indemnification payment
\nhereunder, furnish to the Company or such Borrower, as the case may be, such
\nevidence as is reasonably available to such Lender as to the payment of the
\nrelevant Taxes or Other Taxes, and that it will, if requested by the Company or
\nsuch Borrower, cooperate with the Company or such Borrower, as the case may be,
\nin its efforts to obtain a refund or similar relief in respect of such payment.<\/p>\n
(d) Within 30 days after the date of any payment of Taxes,
\neach Borrower shall furnish to the Agent, at its address referred to in Section
\n9.02, the original or a certified copy of a receipt evidencing payment thereof.
\nIn the case of any payment hereunder or under the Notes by or on behalf of any
\nBorrower through an account or branch outside the United States or by or on
\nbehalf of any Borrower by a payor that is not a United States person, if such
\nBorrower determines that no Taxes are payable in respect thereof, such Borrower
\nshall furnish, or shall cause such payor to furnish, to the Agent, at such
\naddress, an opinion of counsel acceptable to the Agent stating that such payment
\nis exempt from Taxes. For purposes of this subsection (d) and subsection (e),
\nthe terms “United States” and “United States person” shall have the meanings
\nspecified in Section 7701 of the Internal Revenue Code.<\/p>\n
37<\/p>\n
(e) Each Lender organized under the laws of a jurisdiction
\noutside the United States, on or prior to the date of its execution and delivery
\nof this Agreement in the case of each Initial Lender and on the date of the
\nAssignment and Acceptance pursuant to which it becomes a Lender in the case of
\neach other Lender, and from time to time thereafter as requested in writing by
\nany Borrower (but only so long as such Lender remains lawfully able to do so),
\nshall provide the Agent and each Borrower with two original Internal Revenue
\nService forms 1001 or 4224, as appropriate, or any successor or other form
\nprescribed by the Internal Revenue Service, certifying that such Lender is
\nexempt from or entitled to a reduced rate of United States withholding tax on
\npayments pursuant to this Agreement or the Notes. In addition, each Lender
\nfurther agrees to provide any Borrower with any form or document as any Borrower
\nmay request which is required by any taxing authority outside the United States
\nin order to secure an exemption from, or reduction in the rate of, withholding
\ntax. If the forms provided by a Lender at the time such Lender first becomes a
\nparty to this Agreement indicates a United States interest withholding tax rate
\nin excess of zero, withholding tax at such rate shall be considered excluded
\nfrom Taxes unless and until such Lender provides the appropriate forms
\ncertifying that a lesser rate applies, whereupon withholding tax at such lesser
\nrate only shall be considered excluded from Taxes for periods governed by such
\nform; provided, however, that, if at the date of the Assignment and Acceptance
\npursuant to which a Lender becomes a party to this Agreement, such Lender was
\nentitled to payments under subsection (a) in respect of United States
\nwithholding tax with respect to interest paid at such date, then, to such
\nextent, the term Taxes shall include (in addition to withholding taxes that may
\nbe imposed in the future or other amounts otherwise includable in Taxes) United
\nStates withholding tax, if any, applicable with respect to such Lender on such
\ndate. If any form or document referred to in this subsection (e) requires the
\ndisclosure of information, other than information necessary to compute the tax
\npayable and information required on the date hereof by Internal Revenue Service
\nform 1001 or 4224, that a Lender reasonably considers to be confidential, such
\nLender shall give notice thereof to each Borrower and shall not be obligated to
\ninclude in such form or document such confidential information.<\/p>\n
(f) For any period with respect to which a Lender has failed
\nto provide each Borrower with the appropriate form described in Section 2.13(e)
\n(other than if such failure is due to a change in law occurring subsequent to
\nthe date on which a form originally was required to be provided, or if such form
\notherwise is not required under the first sentence of subsection (e) above),
\nsuch Lender shall not be entitled to indemnification under Section 2.13(a) or
\n(c) with respect to Taxes imposed by the United States by reason of such
\nfailure; provided, however, that should a Lender become subject to Taxes because
\nof its failure to deliver a form required hereunder, each Borrower shall take
\nsuch steps as such Lender shall reasonably request to assist such Lender to
\nrecover such Taxes.<\/p>\n
(g) If any Borrower is required to pay any additional amount
\nto any Lender or to the Agent or on behalf of any of them to any taxing
\nauthority pursuant to this Section 2.13, such Lender shall, upon the written
\nrequest of the Company delivered to such Lender and the<\/p>\n
38<\/p>\n
Agent, assign, pursuant to and in accordance with the provisions of Section
\n9.07, all of its rights and obligations under this Agreement and under the Notes
\nto an Eligible Assignee selected by the Company; provided, however, that (i) no
\nDefault shall have occurred and be continuing at the time of such request and at
\nthe time of such assignment; (ii) the assignee shall have paid to the assigning
\nLender the aggregate principal amount of, and any interest accrued and unpaid to
\nthe date of such assignment on, the Note or Notes of such Lender; (iii) the
\nCompany shall have paid to the assigning Lender any and all facility fees and
\nother fees payable to such Lender and all other accrued and unpaid amounts owing
\nto such Lender under any provision of this Agreement (including, but not limited
\nto, any increased costs or other additional amounts owing under Section 2.10,
\nand any indemnification for Taxes under this Section 2.13) as of the effective
\ndate of such assignment; and (iv) if the assignee selected by the Company is not
\nan existing Lender, such assignee or the Company shall have paid the processing
\nand recordation fee required under Section 9.07(a) for such assignment; provided
\nfurther that the assigning Lender’s rights under Sections 2.10, 2.13 and 9.04,
\nand its obligations under Section 8.05, shall survive such assignment as to
\nmatters occurring prior to the date of assignment.<\/p>\n
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
\nobtain any payment (whether voluntary, involuntary, through the exercise of any
\nright of setoff, or otherwise) on account of the Revolving Credit Advances owing
\nto it (other than pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13 or
\n9.04(c)) in excess of its ratable share of payments on account of the Revolving
\nCredit Advances obtained by all the Lenders, such Lender shall forthwith
\npurchase from the other Lenders such participations in the Revolving Credit
\nAdvances owing to them as shall be necessary to cause such purchasing Lender to
\nshare the excess payment ratably with each of them; provided, however, that if
\nall or any portion of such excess payment is thereafter recovered from such
\npurchasing Lender, such purchase from each Lender shall be rescinded and such
\nLender shall repay to the purchasing Lender the purchase price to the extent of
\nsuch recovery together with an amount equal to such Lender’s ratable share
\n(according to the proportion of (i) the amount of such Lender’s required
\nrepayment to (ii) the total amount so recovered from the purchasing Lender) of
\nany interest or other amount paid or payable by the purchasing Lender in respect
\nof the total amount so recovered. Each Borrower agrees that any Lender so
\npurchasing a participation from another Lender pursuant to this Section 2.14
\nmay, to the fullest extent permitted by law, exercise all its rights of payment
\n(including the right of setoff) with respect to such participation as fully as
\nif such Lender were the direct creditor of such Borrower in the amount of such
\nparticipation.<\/p>\n
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
\nshall be available (and each Borrower agrees that it shall use such proceeds)
\nfor general corporate purposes of such Borrower and its Subsidiaries, including,
\nwithout limitation, backstop of commercial paper.<\/p>\n
39<\/p>\n
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain
\nin accordance with its usual practice an account or accounts evidencing the
\nindebtedness of each Borrower to such Lender resulting from each Revolving
\nCredit Advance owing to such Lender from time to time, including the amounts of
\nprincipal and interest payable and paid to such Lender from time to time
\nhereunder in respect of Revolving Credit Advances. Each Borrower agrees that
\nupon request of any Lender to such Borrower (with a copy of such notice to the
\nAgent) that such Lender receive a Revolving Credit Note to evidence (whether for
\npurposes of pledge, enforcement or otherwise) the Revolving Credit Advances
\nowing to, or to be made by, such Lender, such Borrower shall promptly execute
\nand deliver to such Lender a Revolving Credit Note payable to the order of such
\nLender in a principal amount up to the Commitment of such Lender.<\/p>\n
(b) The Register maintained by the Agent pursuant to Section
\n9.07(d) shall include a control account, and a subsidiary account for each
\nLender, in which accounts (taken together) shall be recorded (i) the date and
\namount of each Borrowing made hereunder, the Type of Advances comprising such
\nBorrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
\nterms of each Assignment and Acceptance delivered to and accepted by it, (iii)
\nthe amount of any principal or interest due and payable or to become due and
\npayable from each Borrower to each Lender hereunder and (iv) the amount of any
\nsum received by the Agent from each Borrower hereunder and each Lender’s share
\nthereof.<\/p>\n
(c) Entries made in good faith by the Agent in the Register
\npursuant to subsection (b) above, and by each Lender in its account or accounts
\npursuant to subsection (a) above, shall be prima facie evidence of the amount of
\nprincipal and interest due and payable or to become due and payable from the
\nBorrowers to, in the case of the Register, each Lender and, in the case of such
\naccount or accounts, such Lender, under this Agreement, absent manifest error;
\nprovided, however, that the failure of the Agent or such Lender to make an
\nentry, or any finding that an entry is incorrect, in the Register or such
\naccount or accounts shall not limit or otherwise affect the obligations of any
\nBorrower under this Agreement.<\/p>\n
ARTICLE III<\/p>\n
CONDITIONS TO EFFECTIVENESS AND LENDING<\/p>\n
SECTION 3.01. Conditions Precedent to Effectiveness of
\nSections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
\neffective on and as of the first date (the “Effective Date”) on which the
\nfollowing conditions precedent have been satisfied:<\/p>\n
(a) There shall have occurred no Material Adverse Change since
\n December 31, 1998.<\/p>\n
40<\/p>\n
(b) There shall exist no action, suit, investigation,
\n litigation or proceeding affecting the Company or any of its
\n Subsidiaries pending or to the knowledge of the Company Threatened
\n before any court, governmental agency or arbitrator that (i) is
\n reasonably likely to have a Material Adverse Effect, other than the
\n matters described on Schedule 3.01(b) hereto (the “Disclosed
\n Litigation”) or (ii) purports to affect the legality, validity or
\n enforceability of this Agreement or any Note of the Company or the
\n consummation of the transactions contemplated hereby, and there shall
\n have been no adverse change in the status, or financial effect on the
\n Company or any of its Subsidiaries, of the Disclosed Litigation from
\n that described on Schedule 3.01(b) hereto.<\/p>\n
(c) The Company shall have paid all accrued fees and expenses
\n of the Agent and the Lenders in respect of this Agreement.<\/p>\n
(d) On the Effective Date, the following statements shall be
\n true and the Agent shall have received a certificate signed by a duly
\n authorized officer of the Company, dated the Effective Date, stating
\n that:<\/p>\n
(i) The representations and warranties contained in
\n Section 4.01 are correct on and as of the Effective Date, and<\/p>\n
(ii) No event has occurred and is continuing that
\n constitutes a Default.<\/p>\n
(e) The Agent shall have received on or before the Effective
\n Date the following, each dated such day, in form and substance
\n satisfactory to the Agent:<\/p>\n
(i) The Revolving Credit Notes of the Company to the
\n order of the Lenders to the extent requested by any Lender
\n pursuant to Section 2.16.<\/p>\n
(ii) Certified copies of the resolutions of the Board
\n of Directors of the Company approving this Agreement and the
\n Notes of the Company, and of all documents evidencing other
\n necessary corporate action and governmental approvals, if any,
\n with respect to this Agreement and such Notes.<\/p>\n
(iii) A certificate of the Secretary or an Assistant
\n Secretary of the Company certifying the names and true
\n signatures of the officers of the Company authorized to sign
\n this Agreement and the Notes of the Company and the other
\n documents to be delivered hereunder.<\/p>\n
(iv) A favorable opinion of J. Edward Smith,
\n Assistant General Counsel of the Company, substantially in the
\n form of Exhibit F hereto and as to such other matters as any
\n Lender through the Agent may reasonably request.<\/p>\n
41<\/p>\n
(v) A favorable opinion of Shearman & Sterling,
\n counsel for the Agent, substantially in the form of Exhibit H
\n hereto.<\/p>\n
(vi) Such other approvals, opinions or documents as
\n any Lender, through the Agent, may reasonably request.<\/p>\n
(f) The Company shall have terminated the commitments, and
\n paid in full all Debt, interest, fees and other amounts outstanding,
\n under (i) the $750,000,000 Credit Agreement dated as of June 30, 1995
\n (the “$750,000,000 Credit Agreement”) among the Company, the lenders
\n and arrangers parties thereto and Citibank, as administrative agent,
\n (ii) the $900,000,000 364 Day Backstop Credit Agreement dated as of
\n October 9, 1998 (the “Backstop Credit Agreement”) among the Borrower,
\n as borrower, the lenders and arrangers parties thereto and Citibank, as
\n administrative agent, and (iii) the $1,325,000,000 Credit Agreement
\n dated as of April 15, 1997 (the “Honeywell Credit Agreement”) among
\n Honeywell Inc., as borrower, Morgan Guaranty Trust Company of New York,
\n as documentation agent, Citicorp USA, Inc., as syndication agent, Chase
\n Securities Inc. and J.P. Morgan Securities Inc., as co-arrangers, and
\n The Chase Manhattan Bank, as administrative agent, and each of the
\n Lenders that is a party to each such credit facility hereby waives,
\n upon execution of this Agreement, the three Business Days’ notice
\n required by Section 2.05 of the $750,000,000 Credit Agreement, Section
\n 2.05 of the Backstop Credit Agreement and Section 2.12 of the Honeywell
\n Credit Agreement, respectively, relating to the termination of
\n commitments thereunder.<\/p>\n
(g) All of the conditions precedent to the Merger Agreement
\n (or as amended in a manner satisfactory to the Lenders) shall have been
\n satisfied, including, without limitation, expiration or termination of
\n the applicable waiting period under the Hart-Scott-Rodino Act and
\n receipt of all applicable approvals, and the merger contemplated
\n thereby shall have been effected.<\/p>\n
SECTION 3.02. Conditions Precedent to Initial Borrowing. The
\nobligation of each Lender to make an Advance on the occasion of the initial
\nBorrowing hereunder is subject to the following conditions precedent:<\/p>\n
(a) The Effective Date shall have occurred.<\/p>\n
(b) The Company shall have terminated all outstanding
\n commitments of lenders (and paid in full all outstanding debt under the
\n related credit agreements) which backstop commercial paper issuance,
\n other than commitments made by parties which are not Lenders hereunder.<\/p>\n
42<\/p>\n
(c) The Company shall have paid (i) to the Agent for the
\n account of each Lender the upfront fees as agreed prior to the
\n Effective Date by the Borrower and the Lenders and (ii) all accrued
\n fees and expenses of the Agent (including the billed fees and expenses
\n of counsel to the Agent).<\/p>\n
SECTION 3.03. Initial Loan to Each Designated Subsidiary. The
\nobligation of each Lender to make an initial Advance to each Designated
\nSubsidiary following any designation of such Designated Subsidiary as a Borrower
\nhereunder pursuant to Section 9.08 is subject to the Agent’s receipt on or
\nbefore the date of such initial Advance of each of the following, in form and
\nsubstance satisfactory to the Agent and dated such date, and (except for the
\nRevolving Credit Notes) in sufficient copies for each Lender:<\/p>\n
(a) The Revolving Credit Notes of such Borrower to the order
\n of the Lenders to the extent requested by any Lender pursuant to
\n Section 2.16.<\/p>\n
(b) Certified copies of the resolutions of the Board of
\n Directors of such Borrower (with a certified English translation if the
\n original thereof is not in English) approving this Agreement and the
\n Notes of such Borrower, and of all documents evidencing other necessary
\n corporate action and governmental approvals, if any, with respect to
\n this Agreement and such Notes.<\/p>\n
(c) A certificate of the Secretary or an Assistant Secretary
\n of such Borrower certifying the names and true signatures of the
\n officers of such Borrower authorized to sign this Agreement and the
\n Notes of such Borrower and the other documents to be delivered
\n hereunder.<\/p>\n
(d) A certificate signed by a duly authorized officer of the
\n Company, dated as of the date of such initial Advance, certifying that
\n such Borrower shall have obtained all governmental and third party
\n authorizations, consents, approvals (including exchange control
\n approvals) and licenses required under applicable laws and regulations
\n necessary for such Borrower to execute and deliver this Agreement and
\n the Notes and to perform its obligations thereunder.<\/p>\n
(e) The Designation Letter of such Designated Subsidiary,
\n substantially in the form of Exhibit D hereto.<\/p>\n
(f) Evidence of the Process Agent’s acceptance of its
\n appointment pursuant to Section 9.13(a) as the agent of such Borrower,
\n substantially in the form of Exhibit E hereto.<\/p>\n
43<\/p>\n
(g) A favorable opinion of counsel to such Designated
\n Subsidiary, dated the date of such initial Advance, substantially in
\n the form of Exhibit G hereto.<\/p>\n
(h) Such other approvals, opinions or documents as any Lender,
\n through the Agent, may reasonably request.<\/p>\n
SECTION 3.04. Conditions Precedent to Each Revolving Credit
\nBorrowing. The obligation of each Lender to make a Revolving Credit Advance on
\nthe occasion of each Revolving Credit Borrowing shall be subject to the
\nconditions precedent that the Effective Date shall have occurred and on the date
\nof such Revolving Credit Borrowing (a) the following statements shall be true
\n(and each of the giving of the applicable Notice of Revolving Credit Borrowing
\nand the acceptance by the Borrower requesting such Revolving Credit Borrowing of
\nthe proceeds of such Revolving Credit Borrowing shall constitute a
\nrepresentation and warranty by such Borrower that on the date of such Borrowing
\nsuch statements are true):<\/p>\n
(i) the representations and warranties of the Company
\n contained in Section 4.01 (except the representations set forth in the
\n last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
\n and (n) thereof) are correct on and as of the date of such Revolving
\n Credit Borrowing, before and after giving effect to such Revolving
\n Credit Borrowing and to the application of the proceeds therefrom, as
\n though made on and as of such date, and additionally, if such Revolving
\n Credit Borrowing shall have been requested by a Designated Subsidiary,
\n the representations and warranties of such Designated Subsidiary
\n contained in its Designation Letter are correct on and as of the date
\n of such Revolving Credit Borrowing, before and after giving effect to
\n such Revolving Credit Borrowing and to the application of the proceeds
\n therefrom, as though made on and as of such date, and<\/p>\n
(ii) no event has occurred and is continuing, or would result
\n from such Revolving Credit Borrowing or from the application of the
\n proceeds therefrom, that constitutes a Default;<\/p>\n
and (b) the Agent shall have received such other approvals, opinions or
\ndocuments as any Lender through the Agent may reasonably request.<\/p>\n
SECTION 3.05. Conditions Precedent to Each Competitive Bid
\nBorrowing. The obligation of each Lender that is to make a Competitive Bid
\nAdvance on the occasion of a Competitive Bid Borrowing to make such Competitive
\nBid Advance as part of such Competitive Bid Borrowing is subject to the
\nconditions precedent that (i) the Agent shall have received the written
\nconfirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
\nor before the date of such Competitive Bid Borrowing, but prior to such
\nCompetitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
\npayable to the order of such Lender and<\/p>\n
44<\/p>\n
substantially in the form of Exhibit A-2 hereto for each of the one or more
\nCompetitive Bid Advances to be made by such Lender as part of such Competitive
\nBid Borrowing, in a principal amount equal to the principal amount of the
\nCompetitive Bid Advance to be evidenced thereby and otherwise on such terms as
\nwere agreed to for such Competitive Bid Advance in accordance with Section 2.03,
\nand (iii) on the date of such Competitive Bid Borrowing the following statements
\nshall be true (and each of the giving of the applicable Notice of Competitive
\nBid Borrowing and the acceptance by the Borrower requesting such Competitive Bid
\nBorrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
\nrepresentation and warranty by such Borrower that on the date of such
\nCompetitive Bid Borrowing such statements are true):<\/p>\n
(a) the representations and warranties of the Company
\n contained in Section 4.01 (except the representations set forth in the
\n last sentence of subsection (e) thereof and in subsections (f), (h)-(l)
\n and (n) thereof) are correct on and as of the date of such Competitive
\n Bid Borrowing, before and after giving effect to such Competitive Bid
\n Borrowing and to the application of the proceeds therefrom, as though
\n made on and as of such date, and, if such Competitive Bid Borrowing
\n shall have been requested by a Designated Subsidiary, the
\n representations and warranties of such Designated Subsidiary contained
\n in its Designation Letter are correct on and as of the date of such
\n Competitive Bid Borrowing, before and after giving effect to such
\n Competitive Bid Borrowing and to the application of the proceeds
\n therefrom, as though made on and as of such date,<\/p>\n
(b) no event has occurred and is continuing, or would result
\n from such Competitive Bid Borrowing or from the application of the
\n proceeds therefrom, that constitutes a Default, and<\/p>\n
(c) no event has occurred and no circumstance exists as a
\n result of which the information concerning such Borrower that has been
\n provided to the Agent and each Lender by such Borrower in connection
\n herewith would include an untrue statement of a material fact or omit
\n to state any material fact necessary to make the statements contained
\n therein, in the light of the circumstances under which they were made,
\n not misleading,<\/p>\n
and (iv) the Agent shall have received such other approvals, opinions or
\ndocuments as any Lender through the Agent may reasonably request.<\/p>\n
SECTION 3.06. Determinations Under Section 3.01. For purposes
\nof determining compliance with the conditions specified in Section 3.01, each
\nLender shall be deemed to have consented to, approved or accepted or to be
\nsatisfied with each document or other matter required thereunder to be consented
\nto or approved by or acceptable or satisfactory to the Lenders unless an officer
\nof the Agent responsible for the transactions contemplated by this Agreement
\nshall have received notice from such Lender prior to the date that the Company,<\/p>\n
45<\/p>\n
by notice to the Lenders, designates as the proposed Effective Date, specifying
\nits objection thereto. The Agent shall promptly notify the Lenders of the
\noccurrence of the Effective Date.<\/p>\n
ARTICLE IV<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.01. Representations and Warranties of the Company. The
\nCompany represents and warrants as follows:<\/p>\n
(a) The Company is a corporation duly organized, validly
\n existing and in good standing under the laws of the State of Delaware.<\/p>\n
(b) The execution, delivery and performance by the Company of
\n this Agreement and the Notes of the Company, and the consummation of
\n the transactions contemplated hereby, are within the Company’s
\n corporate powers, have been duly authorized by all necessary corporate
\n action, and do not and will not cause or constitute a violation of any
\n provision of law or regulation or any provision of the Certificate of
\n Incorporation or By-Laws of the Company or result in the breach of, or
\n constitute a default or require any consent under, or result in the
\n creation of any lien, charge or encumbrance upon any of the properties,
\n revenues, or assets of the Company pursuant to, any indenture or other
\n agreement or instrument to which the Company is a party or by which the
\n Company or its property may be bound or affected.<\/p>\n
(c) No authorization, consent, approval (including any
\n exchange control approval), license or other action by, and no notice
\n to or filing or registration with, any governmental authority,
\n administrative agency or regulatory body or any other third party is
\n required for the due execution, delivery and performance by the Company
\n of this Agreement or the Notes of the Company.<\/p>\n
(d) This Agreement has been, and each of the Notes when
\n delivered hereunder will have been, duly executed and delivered by the
\n Company. This Agreement is, and each of the Notes of the Company when
\n delivered hereunder will be, the legal, valid and binding obligation of
\n the Company enforceable against the Company in accordance with their
\n respective terms, except to the extent that such enforcement may be
\n limited by applicable bankruptcy, insolvency and other similar laws
\n affecting creditors’ rights generally.<\/p>\n
(e) The Consolidated balance sheet of the Company and its
\n Consolidated Subsidiaries as at December 31, 1998, and the related
\n Consolidated statements of income<\/p>\n
46<\/p>\n
and cash flows of the Company and its Consolidated Subsidiaries for the
\n fiscal year then ended (together with the notes to the financial
\n statements of the Company and its Consolidated Subsidiaries and the
\n Consolidated statements of cash flows of the Company and its
\n Consolidated Subsidiaries), accompanied by an opinion of one or more
\n nationally recognized firms of independent public accountants, and the
\n Consolidated balance sheet of the Company and its Consolidated
\n Subsidiaries as at June 30, 1999, and the related Consolidated
\n statements of income and cash flows of the Company and its Consolidated
\n Subsidiaries for the six months then ended, duly certified by the
\n principal financial officer of the Company, copies of which have been
\n furnished to each Lender, are materially complete and correct, and
\n fairly present, subject, in the case of said balance sheet as at June
\n 30, 1999, and said statements of income and cash flows for the six
\n months then ended, to year-end audit adjustments, the Consolidated
\n financial condition of the Company and its Consolidated Subsidiaries as
\n at such dates and the Consolidated results of the operations of the
\n Company and its Consolidated Subsidiaries for the periods ended on such
\n dates, all in accordance with GAAP consistently applied, except as
\n otherwise noted therein; the Company and its Consolidated Subsidiaries
\n do not have on such date any material contingent liabilities,
\n liabilities for taxes, unusual forward or long-term commitments or
\n unrealized or anticipated losses from any unfavorable commitments,
\n except as referred to or reflected or provided for in such balance
\n sheet or the notes thereto as at such date. Since December 31, 1998,
\n there has been no Material Adverse Change.<\/p>\n
(f) There is no action, suit, investigation, litigation or
\n proceeding, including, without limitation, any Environmental Action,
\n pending or to the knowledge of the Company Threatened affecting the
\n Company or any of its Subsidiaries before any court, governmental
\n agency or arbitrator that (i) is reasonably likely to have a Material
\n Adverse Effect (other than the Disclosed Litigation), or (ii) purports
\n to affect the legality, validity or enforceability of this Agreement or
\n any Note or the consummation of the transactions contemplated hereby,
\n and there has been no adverse change in the status, or financial effect
\n on the Company or any of its Subsidiaries, of the Disclosed Litigation
\n from that described on Schedule 3.01(b) hereto.<\/p>\n
(g) Following application of the proceeds of each Advance, not
\n more than 25 percent of the value of the assets (either of the Borrower
\n of such Advance or of such Borrower and its Subsidiaries on a
\n Consolidated basis) subject to the provisions of Section 5.02(a) or
\n subject to any restriction contained in any agreement or instrument
\n between such Borrower and any Lender or any Affiliate of any Lender
\n relating to Debt and within the scope of Section 6.01(e) will be margin
\n stock (within the meaning of Regulation U issued by the Board of
\n Governors of the Federal Reserve System).<\/p>\n
(h) The Company and each wholly-owned direct Subsidiary of the
\n Company have, in the aggregate, met their minimum funding requirements
\n under ERISA with<\/p>\n
47<\/p>\n
respect to their Plans in all material respects and have not incurred
\n any material liability to the PBGC, other than for the payment of
\n premiums, in connection with such Plans.<\/p>\n
(i) No ERISA Event has occurred or is reasonably expected to
\n occur with respect to any Plan of the Company or any of its ERISA
\n Affiliates that has resulted in or is reasonably likely to result in a
\n material liability of the Company or any of its ERISA Affiliates.<\/p>\n
(j) The Schedules B (Actuarial Information) to the 1998 annual
\n reports (Form 5500 Series) with respect to each Plan of the Company or
\n any of its ERISA Affiliates, copies of which have been filed with the
\n Internal Revenue Service (and which will be furnished to any Bank
\n through the Administrative Agent upon the request of such Bank through
\n the Administrative Agent to the Company), are complete and accurate in
\n all material respects and fairly present in all material respects the
\n funding status of such Plans at such date, and since the date of each
\n such Schedule B there has been no material adverse change in funding
\n status.<\/p>\n
(k) Neither the Company nor any of its ERISA Affiliates has
\n incurred or reasonably expects to incur any Withdrawal Liability to any
\n Multiemployer Plan in an annual amount exceeding 6% of Net Tangible
\n Assets of the Company and its Consolidated Subsidiaries.<\/p>\n
(l) Neither the Company nor any of its ERISA Affiliates has
\n been notified by the sponsor of a Multiemployer Plan that such
\n Multiemployer Plan is in reorganization or has been terminated, within
\n the meaning of Title IV of ERISA. No such Multiemployer Plan is
\n reasonably expected to be in reorganization or to be terminated, within
\n the meaning of Title IV of ERISA, in a reorganization or termination
\n which might reasonably be expected to result in a liability of the
\n Company in an amount in excess of $5,000,000.<\/p>\n
(m) The Company is not, and immediately after the application
\n by the Company of the proceeds of each Loan will not be, (a) an
\n “investment company” within the meaning of the Investment Company Act
\n of 1940, as amended, or (b) a “holding company” within the meaning of
\n the Public Utility Holding Company Act of 1935, as amended.<\/p>\n
(n) To the best of the Company’s knowledge, the operations and
\n properties of the Company and its Subsidiaries taken as a whole comply
\n in all material respects with all Environmental Laws, all necessary
\n Environmental Permits have been applied for or have been obtained and
\n are in effect for the operations and properties of the Company and its
\n Subsidiaries and the Company and its Subsidiaries are in compliance in
\n all material<\/p>\n
48<\/p>\n
respects with all such Environmental Permits. To the best of the
\n Company’s knowledge no circumstances exist that would be reasonably
\n likely to form the basis of an Environmental Action against the Company
\n or any of its Subsidiaries or any of their properties that could have a
\n Material Adverse Effect.<\/p>\n
(o) The Company has (i) initiated a review and assessment of
\n all areas within its and each of its Subsidiaries’ business and
\n operations (including those affected by suppliers, vendors and
\n customers) that could be adversely affected by the risk that computer
\n applications used by the Company or any of its Subsidiaries (or
\n suppliers, vendors and customers) may be unable to recognize and
\n perform properly date sensitive functions involving certain dates prior
\n to and any date after December 31, 1999 (the “Year 2000 Problem”), (ii)
\n developed a plan and timetable for addressing the Year 2000 Problem on
\n a timely basis and (iii) to date, implemented that plan in accordance
\n with such timetable. Based on the foregoing, the Company believes that
\n all computer applications (including those of its suppliers, vendors
\n and customers) that are material to its or any of its Subsidiaries’
\n business and operations are reasonably expected on a timely basis to be
\n able to perform properly date-sensitive functions for all dates before,
\n on and after January 1, 2000, except to the extent that a failure to do
\n so could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
ARTICLE V<\/p>\n
COVENANTS OF THE BORROWER<\/p>\n
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
\nremain unpaid or any Lender shall have any Commitment hereunder, the Company
\nwill:<\/p>\n
(a) Compliance with Laws, Etc. Comply, and cause each
\n Designated Subsidiary to comply with all applicable laws, rules,
\n regulations and orders, such compliance to include, without limitation,
\n compliance with ERISA and Environmental Laws as provided in Section
\n 5.01(j), if failure to comply with such requirements would have a
\n Material Adverse Effect.<\/p>\n
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
\n Designated Subsidiary to pay and discharge, all taxes, assessments and
\n governmental charges or levies imposed upon it or on its income or
\n profits or upon any of its property; provided, however, that neither
\n the Company nor any of its Subsidiaries shall be required to pay or
\n discharge any such tax, assessment, charge or claim that is being
\n contested in good faith and by proper proceedings and as to which
\n appropriate reserves are being maintained.<\/p>\n
49<\/p>\n
(c) Maintenance of Insurance. Maintain, and cause each
\n Designated Subsidiary to maintain, insurance with responsible and
\n reputable insurance companies or associations in such amounts and
\n covering such risks as is usually carried by companies engaged in
\n similar businesses and owning similar properties in the same general
\n areas in which the Company or such Subsidiary operates.<\/p>\n
(d) Preservation of Corporate Existence, Etc. Preserve and
\n maintain, and cause each Designated Subsidiary to preserve and
\n maintain, its corporate existence and all its material rights (charter
\n and statutory) privileges and franchises; provided, however, that the
\n Company and each Designated Subsidiary may consummate any merger,
\n consolidation or sale of assets permitted under Section 5.02(b).<\/p>\n
(e) Visitation Rights. At any reasonable time and from time to
\n time, permit the Agent or any of the Lenders or any agents or
\n representatives thereof, to examine and make copies of and abstracts
\n from the records and books of account of, and visit the properties of,
\n the Company and any Designated Subsidiary, and to discuss the affairs,
\n finances and accounts of the Company and any Designated Subsidiary with
\n any of their officers or directors and with their independent certified
\n public accountants.<\/p>\n
(f) Keeping of Books. Keep, and cause each Designated
\n Subsidiary to keep, proper books of record and account, in which full
\n and correct entries shall be made of all financial transactions and the
\n assets and business of the Company and each Designated Subsidiary in
\n accordance with generally accepted accounting principles in effect from
\n time to time.<\/p>\n
(g) Maintenance of Properties, Etc. Maintain and preserve, and
\n cause each Designated Subsidiary to maintain and preserve, all of its
\n properties that are used or useful in the conduct of its business in
\n good working order and condition, ordinary wear and tear excepted;
\n provided, however, that neither the Company nor any of its Designated
\n Subsidiaries shall be required to maintain or preserve any property if
\n the failure to maintain or preserve such property shall not have a
\n Material Adverse Effect.<\/p>\n
(h) Reporting Requirements. Furnish to the Agent (with a copy
\n for each Lender) and the Agent shall promptly forward the same to the
\n Lenders:<\/p>\n
(i) as soon as available and in any event within 60
\n days after the end of each of the first three quarters of each
\n fiscal year of the Company, a Consolidated balance sheet of
\n the Company and its Consolidated Subsidiaries as of the end of
\n such quarter and a Consolidated statement of income and cash
\n flows of the Company and its Consolidated Subsidiaries for the
\n period commencing at the end of the previous fiscal year and
\n ending with the end of such quarter, setting forth in each
\n case in comparative form the corresponding figures as of the<\/p>\n
50<\/p>\n
corresponding date and for the corresponding period of the
\n preceding fiscal year, all in reasonable detail and certified
\n by the principal financial officer, principal accounting
\n officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company, subject, however, to year-end
\n auditing adjustments, which certificate shall include a
\n statement that such officer has no knowledge, except as
\n specifically stated, of any condition, event or act which
\n constitutes a Default;<\/p>\n
(ii) as soon as available and in any event within 120
\n days after the end of each fiscal year of the Company, a
\n Consolidated balance sheet of the Company and its Consolidated
\n Subsidiaries as of the end of such fiscal year and the related
\n Consolidated statements of income and cash flows of the
\n Company and its Consolidated Subsidiaries for such fiscal year
\n setting forth in each case in comparative form the
\n corresponding figures as of the close of and for the preceding
\n fiscal year, all in reasonable detail and accompanied by an
\n opinion of independent public accountants of nationally
\n recognized standing, as to said financial statements and a
\n certificate of the principal financial officer, principal
\n accounting officer, the Vice-President and Treasurer or an
\n Assistant Treasurer of the Company stating that such officer
\n has no knowledge, except as specifically stated, of any
\n condition, event or act which constitutes a Default;<\/p>\n
(iii) copies of the Forms 8-K and 10-K reports (or
\n similar reports) which the Company is required to file with
\n the Securities and Exchange Commission of the United States of
\n America, promptly after the filing thereof;<\/p>\n
(iv) copies of each annual report, quarterly report,
\n special report or proxy statement mailed to substantially all
\n of the stockholders of the Company, promptly after the mailing
\n thereof to the stockholders;<\/p>\n
(v) immediate notice of the occurrence of any Default
\n of which the principal financial officer, principal accounting
\n officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company shall have knowledge;<\/p>\n
(vi) as soon as available and in any event within 15
\n days after the Company or any of its ERISA Affiliates knows or
\n has reason to know that any ERISA Event has occurred, a
\n statement of a senior officer of the Company with
\n responsibility for compliance with the requirements of ERISA
\n describing such ERISA Event and the action, if any, which the
\n Company or such ERISA Affiliate proposes to take with respect
\n thereto;<\/p>\n
(vii) at the request of any Lender, promptly after
\n the filing thereof with the Internal Revenue Service, copies
\n of Schedule B (Actuarial Information) to<\/p>\n
51<\/p>\n
each annual report (Form 5500 series) filed by the Company or
\n any of its ERISA Affiliates with respect to each Plan;<\/p>\n
(viii) promptly after receipt thereof by the Company
\n or any of its ERISA Affiliates, copies of each notice from the
\n PBGC stating its intention to terminate any Plan or to have a
\n trustee appointed to administer any Plan;<\/p>\n
(ix) promptly after such request, such other
\n documents and information relating to any Plan as any Lender
\n may reasonably request from time to time;<\/p>\n
(x) promptly and in any event within five Business
\n Days after receipt thereof by the Company or any of its ERISA
\n Affiliates from the sponsor of a Multiemployer Plan, copies of
\n each notice concerning (A) (x) the imposition of Withdrawal
\n Liability in an amount in excess of $5,000,000 with respect to
\n any one Multiemployer Plan or in an aggregate amount in excess
\n of $25,000,000 with respect to all such Multiemployer Plans
\n within any one calendar year or (y) the reorganization or
\n termination, within the meaning of Title IV of ERISA, of any
\n Multiemployer Plan that has resulted or might reasonably be
\n expected to result in Withdrawal Liability in an amount in
\n excess of $5,000,000 or of all such Multiemployer Plans that
\n has resulted or might reasonably be expected to result in
\n Withdrawal Liability in an aggregate amount in excess of
\n $25,000,000 within any one calendar year and (B) the amount of
\n liability incurred, or that may be incurred, by the Company or
\n any of its ERISA Affiliates in connection with any event
\n described in such subclause (x) or (y);<\/p>\n
(xi) promptly after the commencement thereof, notice
\n of all actions and proceedings before any court, governmental
\n agency or arbitrator affecting the Borrower or any Designated
\n Subsidiary of the type described in Section 4.01(f); and<\/p>\n
(xii) from time to time such further information
\n respecting the financial condition and operations of the
\n Company and its Subsidiaries as any Lender may from time to
\n time reasonably request.<\/p>\n
(i) Authorizations. Obtain, and cause each Designated
\n Subsidiary to obtain, at any time and from time to time all
\n authorizations, licenses, consents or approvals (including exchange
\n control approvals) as shall now or hereafter be necessary or desirable
\n under applicable law or regulations in connection with its making and
\n performance of this Agreement and, upon the request of any Lender,
\n promptly furnish to such Lender copies thereof.<\/p>\n
52<\/p>\n
(j) Compliance with Environmental Laws. Comply, and cause each
\n of its Subsidiaries and all lessees and other Persons operating or
\n occupying its properties to comply, in all material respects, with all
\n applicable Environmental Laws and Environmental Permits;
\n obtain and renew and cause each of its Subsidiaries to obtain and renew
\n all Environmental Permits necessary for its operations and properties;
\n and conduct, and cause each of its Subsidiaries to conduct, any
\n investigation, study, sampling and testing, and undertake any cleanup,
\n removal, remedial or other action necessary to remove and clean up all
\n Hazardous Materials from any of its properties, in accordance with the
\n requirements of all Environmental Laws; provided, however, that neither
\n the Company nor any of its Subsidiaries shall be required to undertake
\n any such cleanup, removal, remedial or other action to the extent that
\n its obligation to do so is being contested in good faith and by proper
\n proceedings and appropriate reserves are being maintained with respect
\n to such circumstances.<\/p>\n
(k) Change of Control. If a Change of Control shall occur,
\n within ten calendar days after the occurrence thereof, provide the
\n Agent with notice thereof, describing therein in reasonable detail the
\n facts and circumstances giving rise to such Change in Control.<\/p>\n
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
\nunpaid or any Lender shall have any Commitment hereunder, the Company will not:<\/p>\n
(a) Liens, Etc. Issue, assume or guarantee, or permit any of
\n its Subsidiaries owning Restricted Property to issue, assume or
\n guarantee, any Debt secured by Liens on or with respect to any
\n Restricted Property without effectively providing that its obligations
\n to the Lenders under this Agreement and any of the Notes shall be
\n secured equally and ratably with such Debt so long as such Debt shall
\n be so secured, except that the foregoing shall not apply to:<\/p>\n
(i) Liens affecting property of the Company or any of
\n its Subsidiaries existing on the Effective Date in effect as
\n of the date hereof or of any corporation existing at the time
\n it becomes a Subsidiary of the Company or at the time it is
\n merged into or consolidated with the Company or a Subsidiary
\n of the Company;<\/p>\n
(ii) Liens on property of the Company or its
\n Subsidiaries existing at the time of acquisition thereof or
\n incurred to secure the payment of all or part of the purchase
\n price thereof or to secure Debt incurred prior to, at the time
\n of or within 24 months after acquisition thereof for the
\n purpose of financing all or part of the purchase price
\n thereof;<\/p>\n
(iii) Liens on property of the Company or its
\n Subsidiaries (in the case of property that is, in the opinion
\n of the Board of Directors of the Company,<\/p>\n
53<\/p>\n
substantially unimproved for the use intended by the Company)
\n to secure all or part of the cost of improvement thereof, or
\n to secure Debt incurred to provide funds for any such purpose;<\/p>\n
(iv) Liens which secure only Debt owing by a
\n Subsidiary of the Company to the Company or to another
\n Subsidiary of the Company;<\/p>\n
(v) Liens in favor of the United States of America,
\n any State, any foreign country, or any department, agency,
\n instrumentality, or political subdivisions of any such
\n jurisdiction, to secure partial, progress, advance or other
\n payments pursuant to any contract or statute or to secure any
\n Debt incurred for the purpose of financing all or any part of
\n the purchase price or cost of constructing or improving the
\n property subject thereto, including, without limitation, Liens
\n to secure Debt of the pollution control or industrial revenue
\n bond type; or<\/p>\n
(vi) any extension, renewal or replacement (or
\n successive extensions, renewals or replacements), in whole or
\n in part, of any Lien referred to in the foregoing clauses (i)
\n to (v) inclusive of any Debt secured thereby, provided that
\n the principal amount of Debt secured thereby shall not exceed
\n the principal amount of Debt so secured at the time of such
\n extension, renewal or replacement, and that such extension,
\n renewal or replacement Lien shall be limited to all or part of
\n the property which secured the Lien extended, renewed or
\n replaced (plus improvements on such property);<\/p>\n
provided, however, that, the Company and any one or more Subsidiaries
\n owning Restricted Property may issue, assume or guarantee Debt secured
\n by Liens which would otherwise be subject to the foregoing restrictions
\n in an aggregate principal amount which, together with the aggregate
\n outstanding principal amount of all other Debt of the Company and its
\n Subsidiaries owning Restricted Property that would otherwise be subject
\n to the foregoing restrictions (not including Debt permitted to be
\n secured under clause (i) through (vi) above) and the aggregate value of
\n the Sale and Leaseback Transactions in existence at such time, does not
\n at any one time exceed 10% of the Net Tangible Assets of the Company
\n and its Consolidated Subsidiaries; and provided further that the
\n following type of transaction, among others, shall not be deemed to
\n create Debt secured by Liens: Liens required by any contract or statute
\n in order to permit the Company or any of its Subsidiaries to perform
\n any contract or subcontract made by it with or at the request of the
\n United States of America, any foreign country or any department, agency
\n or instrumentality of any of the foregoing jurisdictions.<\/p>\n
(b) Mergers, Etc. Merge or consolidate with or into, or
\n convey, transfer, lease or otherwise dispose of (whether in one
\n transaction or in a series of transactions) all or substantially all of
\n its assets (whether now owned or hereafter acquired) to, any Person;<\/p>\n
54<\/p>\n
provided, however, that the Company may merge or consolidate with any
\n other Person so long as the Company is the surviving corporation and so
\n long as no Default shall have occurred and be continuing at the time of
\n such proposed transaction or would result therefrom.<\/p>\n
ARTICLE VI<\/p>\n
EVENTS OF DEFAULT<\/p>\n
SECTION 6.01. Events of Default. If any of the following events
\n(“Events of Default”) shall occur and be continuing:<\/p>\n
(a) Any Borrower shall fail to pay: (i) any principal of any
\n Advance when the same becomes due and payable; (ii) any facility fees,
\n utilization fees or any interest on any Advance payable under this
\n Agreement or any Note within three Business Days after the same becomes
\n due and payable; or (iii) any other fees or other amounts payable under
\n this Agreement or any Notes within 30 days after the same becomes due
\n and payable other than those fees and amounts the liabilities for which
\n are being contested in good faith by such Borrower and which have been
\n placed in Escrow by such Borrower; or<\/p>\n
(b) Any representation or warranty made (or deemed made) by
\n any Borrower (or any of its officers) in connection with this Agreement
\n or by any Designated Subsidiary in the Designation Letter pursuant to
\n which such Designated Subsidiary became a Borrower hereunder shall
\n prove to have been incorrect in any material respect when made (or
\n deemed made); or<\/p>\n
(c) The Company shall repudiate its obligations under, or
\n shall default in the due performance or observance of, any term,
\n covenant or agreement contained in Article VII of this Agreement; or<\/p>\n
(d) (i) The Company shall fail to perform or observe any other
\n term, covenant or agreement contained in Section 5.02(a) and such
\n failure shall remain unremedied for a period of 30 days after any
\n Lender shall have given notice thereof to the Company (through the
\n Agent), or (ii) the Company or any other Borrower shall fail to perform
\n or to observe any other term, covenant or agreement contained in this
\n Agreement on its part to be performed or observed and such failure
\n shall remain unremedied for a period of 30 days after any Lender shall
\n have given notice thereof to the relevant Borrower or, in the case of
\n the Company, any of the principal financial officer, the principal
\n accounting officer, the Vice-President and Treasurer or an Assistant
\n Treasurer of the Company, and in the case of any other Borrower, a
\n responsible officer of such Borrower, first has knowledge of such
\n failure; or<\/p>\n
55<\/p>\n
(e) (i) The Company or any of its Consolidated or Designated
\n Subsidiaries shall fail to pay any principal of or premium or interest
\n on any Debt (other than Debt owed to the Company or its Subsidiaries or
\n Affiliates) that is outstanding in a principal amount of at least
\n $150,000,000 in the aggregate (but excluding Debt outstanding hereunder
\n and Debt owed by such party to any bank, financial institution or other
\n institutional lender to the extent the Borrower or any Subsidiary has
\n deposits with such bank, financial institution or other institutional
\n lender sufficient to repay such Debt) of the Company or such Subsidiary
\n (as the case may be), when the same becomes due and payable (whether by
\n scheduled maturity, required prepayment, acceleration, demand or
\n otherwise), and such failure shall continue after the applicable grace
\n period, if any, specified in the agreement or instrument relating to
\n such Debt, or (ii) any other event shall occur or condition shall exist
\n under any agreement or instrument relating to any such Debt and shall
\n continue after the applicable grace period, if any, specified in such
\n agreement or instrument, if the effect of such event or condition is to
\n accelerate, or to permit the acceleration of, the maturity of such
\n Debt, or (iii) any such Debt shall be declared to be due and payable,
\n or required to be prepaid or redeemed (other than by a regularly
\n scheduled required prepayment or redemption), purchased or defeased, or
\n an offer to prepay, redeem, purchase or defease such Debt shall be
\n required to be made, in each case prior to the stated maturity thereof;
\n provided, however, that, for purposes of this Section 6.0l(e), in the
\n case of (x) Debt of any Person (other than the Company or one of its
\n Consolidated Subsidiaries) which the Company has guaranteed and (y)
\n Debt of Persons (other than the Company or one of its Consolidated
\n Subsidiaries) the payment of which is secured by a Lien on property of
\n the Company or such Subsidiary, such Debt shall be deemed to have not
\n been paid when due or to have been declared to be due and payable only
\n when the Company or such Subsidiary, as the case may be, shall have
\n failed to pay when due any amount which it shall be obligated to pay
\n with respect to such Debt; provided further, however, that any event or
\n occurrence described in this subsection (e) shall not be an Event of
\n Default if (A) such event or occurrence relates to the Debt of any
\n Subsidiary of the Company located in China, India, the Commonwealth of
\n Independent States or Turkey (collectively, the “Exempt Countries”),
\n (B) such Debt is not guaranteed or supported in any legally enforceable
\n manner by any Borrower or by any Subsidiary or Affiliate of the Company
\n located outside the Exempt Countries, (C) such event or occurrence is
\n due to the direct or indirect action of any government entity or agency
\n in any Exempt Country and (D) as of the last day of the calendar
\n quarter immediately preceding such event or occurrence, the book value
\n of the assets of such Subsidiary does not exceed $150,000,000 and the
\n aggregate book value of the assets of all Subsidiaries of the Company
\n located in Exempt Countries the Debt of which would cause an Event of
\n Default to occur but for the effect of this proviso does not exceed
\n $500,000,000; or<\/p>\n
(f) The Company or any of its Designated or Consolidated
\n Subsidiaries shall generally not pay its debts as such debts become
\n due, or shall admit in writing its inability to pay its debts
\n generally, or shall make a general assignment for the benefit of
\n creditors;<\/p>\n
56<\/p>\n
or any proceeding shall be instituted by or against the Company or any
\n such Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
\n seeking liquidation, winding up, reorganization, arrangement,
\n adjustment, protection, relief, or composition of it or its debts under
\n any law relating to bankruptcy, insolvency or reorganization or relief
\n of debtors, or seeking the entry of an order for relief or the
\n appointment of a receiver, trustee, custodian or other similar official
\n for it or for any substantial part of its property and, in the case of
\n any such proceeding instituted against it (but not instituted by it),
\n either such proceeding shall remain undismissed or unstayed for a
\n period of 30 days, or any of the actions sought in such proceeding
\n (including, without limitation, the entry of an order for relief
\n against, or the appointment of a receiver, trustee, custodian or other
\n similar official for, it or for any substantial part of its property)
\n shall occur; or the Company or any such Subsidiaries shall take any
\n corporate action to authorize any of the actions set forth above in
\n this subsection (f); provided, however, that any event or occurrence
\n described in this subsection (f) shall not be an Event of Default if
\n (A) such event or occurrence relates to any Subsidiary of the Company
\n located in an Exempt Country, (B) the Debt of such Subsidiary is not
\n guaranteed or supported in any legally enforceable manner by any
\n Borrower or by any Subsidiary or Affiliate of the Company located
\n outside the Exempt Countries, (C) such event or occurrence is due to
\n the direct or indirect action of any government entity or agency in any
\n Exempt Country and (D) as of the last day of the calendar quarter
\n immediately preceding such event or occurrence, the book value of the
\n assets of such Subsidiary does not exceed $150,000,000 and the
\n aggregate book value of the assets of all Subsidiaries of the Company
\n located in Exempt Countries with respect to which the happening of the
\n events or occurrences described in this subsection (f) would cause an
\n Event of Default to occur but for the effect of this proviso does not
\n exceed $500,000,000; or<\/p>\n
(g) Any judgment or order for the payment of money in excess
\n of $150,000,000 shall be rendered against the Company or any of its
\n Subsidiaries and enforcement proceedings shall have been commenced by
\n any creditor upon such judgment or order and there shall be any period
\n of 10 consecutive days during which a stay of enforcement of such
\n judgment or order, by reason of a pending appeal or otherwise, shall
\n not be in effect; provided, however, that any such judgment or order
\n shall not be an Event of Default under this Section 6.01(g) if (A) such
\n judgment or order is rendered against any Subsidiary of the Company
\n located in an Exempt Country, (B) the Debt of such Subsidiary is not
\n guaranteed or supported in any legally enforceable manner by any
\n Borrower or by any Subsidiary or Affiliate of the Company located
\n outside the Exempt Countries, (C) such judgment or order is due to the
\n direct or indirect action of any government entity or agency in any
\n Exempt Country and (D) as of the last day of the calendar quarter
\n immediately preceding the tenth consecutive day of the stay period
\n referred to above, the book value of the assets of such Subsidiary does
\n not exceed $150,000,000 and the aggregate book value of the assets of
\n all Subsidiaries of the Company located in Exempt Countries the
\n judgments and orders against which would<\/p>\n
57<\/p>\n
cause an Event of Default to occur but for the effect of this proviso
\n does not exceed $500,000,000; or<\/p>\n
(h) Any non-monetary judgment or order shall be rendered
\n against the Company or any of its Subsidiaries that is reasonably
\n likely to have a Material Adverse Effect, and enforcement proceedings
\n shall have been commenced by any Person upon such judgment or order and
\n there shall be any period of 10 consecutive days during which a stay of
\n enforcement of such judgment or order, by reason of a pending appeal or
\n otherwise, shall not be in effect; or<\/p>\n
(i) Any license, consent, authorization or approval (including
\n exchange control approvals) now or hereafter necessary to enable the
\n Company or any Designated Subsidiary to comply with its obligations
\n herein or under any Notes of such Borrower shall be modified, revoked,
\n withdrawn, withheld or suspended; or<\/p>\n
(j) (i) Any ERISA Event shall have occurred with respect to a
\n Plan of any Borrower or any of its ERISA Affiliates and the sum
\n (determined as of the date of occurrence of such ERISA Event) of the
\n Insufficiency of such Plan and the Insufficiency of any and all other
\n Plans of the Borrowers and their ERISA Affiliates with respect to which
\n an ERISA Event shall have occurred and then exist (or the liability of
\n the Borrowers and their ERISA Affiliates related to such ERISA Event)
\n exceeds $150,000,000; or (ii) any Borrower or any of its ERISA
\n Affiliates shall be in default, as defined in Section 4219(c)(5) of
\n ERISA, with respect to any payment of Withdrawal Liability and the sum
\n of the outstanding balance of such Withdrawal Liability and the
\n outstanding balance of any other Withdrawal Liability that any Borrower
\n or any of its ERISA Affiliates has incurred exceeds 6% of Net Tangible
\n Assets of the Company and its Consolidated Subsidiaries; or (iii) any
\n Borrower or any of its ERISA Affiliates shall have been notified by the
\n sponsor of a Multiemployer Plan of such Borrower or any of its ERISA
\n Affiliates that such Multiemployer Plan is in reorganization or is
\n being terminated, within the meaning of Title IV of ERISA, and as a
\n result of such reorganization or termination the aggregate annual
\n contributions of the Borrowers and their ERISA Affiliates to all
\n Multiemployer Plans that are then in reorganization or being terminated
\n have been or will be increased over the amounts contributed to such
\n Multiemployer Plans for the plan years of such Multiemployer Plans
\n immediately preceding the plan year in which such reorganization or
\n termination occurs by an amount exceeding $150,000,000; or<\/p>\n
then, and (i) in any such event (except as provided in clause (ii) below), the
\nAgent (A) shall at the request, or may with the consent, of the Majority
\nLenders, by notice to the Company, declare the obligation of each Lender to make
\nAdvances to be terminated, whereupon the same shall forthwith terminate, and (B)
\nshall at the request, or may with the consent, of the Majority Lenders, by
\nnotice to the Company, declare the Advances, all interest thereon and all other<\/p>\n
58<\/p>\n
amounts payable under this Agreement to be forthwith due and payable, whereupon
\nthe Advances, all such interest and all such amounts shall become and be
\nforthwith due and payable, without presentment, demand, protest or further
\nnotice of any kind, all of which are hereby expressly waived by the Borrowers
\nand (ii) in the case of the occurrence of any Event of Default described in
\nclause (i) or (ii) of Section 6.01(a), the Agent shall, at the request, or may
\nwith the consent, of the Lenders which have made or assumed under this Agreement
\nat least 66-2\/3% of the aggregate principal amount (based in respect of
\nCompetitive Bid Advances denominated in Foreign Currencies on the Equivalent in
\nDollars on the date of such request) of Competitive Bid Advances then
\noutstanding and to whom such Advances are owed, by notice to the Company,
\ndeclare the full unpaid principal of and accrued interest on all Competitive Bid
\nAdvances hereunder and all other obligations of the Borrowers hereunder to be
\nimmediately due and payable, whereupon such Advances and such obligations shall
\nbe immediately due and payable, without presentment, demand, protest or other
\nfurther notice of any kind, all of which are hereby expressly waived by the
\nBorrowers; provided, however, that in the event of an actual or deemed entry of
\nan order for relief with respect to any Borrower under the United States
\nBankruptcy Code of 1978, as amended, (x) the obligation of each Lender to make
\nAdvances shall automatically be terminated and (y) the Advances, all such
\ninterest and all such amounts shall automatically become and be due and payable,
\nwithout presentment, demand, protest or any notice of any kind, all of which are
\nhereby expressly waived by the Borrowers.<\/p>\n
ARTICLE VII<\/p>\n
GUARANTEE<\/p>\n
SECTION 7.01. Unconditional Guarantee. For valuable
\nconsideration, receipt whereof is hereby acknowledged, and to induce each Lender
\nto make Advances to the Designated Subsidiaries and to induce the Agent to act
\nhereunder, the Company hereby unconditionally and irrevocably guarantees to each
\nLender and the Agent that:<\/p>\n
(a) the principal of and interest on each Advance to each
\n Designated Subsidiary shall be promptly paid in full when due (whether
\n at stated maturity, by acceleration or otherwise) in accordance with
\n the terms hereof, and, in case of any extension of time of payment, in
\n whole or in part, of such Advance, that all such sums shall be promptly
\n paid when due (whether at stated maturity, by acceleration or
\n otherwise) in accordance with the terms of such extension; and<\/p>\n
(b) all other amounts payable hereunder by any Designated
\n Subsidiary to any Lender or the Agent or the Sub-Agent, as the case may
\n be, shall be promptly paid in full when due in accordance with the
\n terms hereof (the obligations of the Designated Subsidiaries under
\n these subsections (a) and (b) of this Section 7.01 being the
\n “Obligations”).<\/p>\n
59<\/p>\n
In addition, the Company hereby unconditionally and irrevocably agrees that upon
\ndefault in the payment when due (whether at stated maturity, by acceleration or
\notherwise) of any principal of, or interest on, any Advance to any Designated
\nSubsidiary or such other amounts payable by any Designated Subsidiary to any
\nLender or the Agent, the Company will forthwith pay the same, without further
\nnotice or demand.<\/p>\n
SECTION 7.02. Guarantee Absolute. The Company guarantees that
\nthe Obligations will be paid strictly in accordance with the terms of this
\nAgreement, regardless of any law, regulation or order now or hereafter in effect
\nin any jurisdiction affecting any of such terms or the rights of any Lender or
\nthe Agent with respect thereto. The liability of the Company under this
\nguarantee shall be absolute and unconditional irrespective of:<\/p>\n
(a) any lack of validity or enforceability of this Agreement
\n or any other agreement or instrument relating thereto;<\/p>\n
(b) any change in the time, manner or place of payment of, or
\n in any other term of, all or any of the Obligations, or any other
\n amendment or waiver of or any consent to departure from this Agreement;<\/p>\n
(c) any exchange, release or non-perfection of any collateral,
\n or any release or amendment or waiver of or consent to departure from
\n any other guaranty, for all or any of the Obligations; or<\/p>\n
(d) any other circumstance which might otherwise constitute a
\n defense available to, or a discharge of, the Company, any Borrower or a
\n guarantor.<\/p>\n
This guarantee shall continue to be effective or be reinstated, as the case may
\nbe, if at any time any payment of any of the Obligations is rescinded or must
\notherwise be returned by any of the Lenders or the Agent upon the insolvency,
\nbankruptcy or reorganization of the Company or any Borrower or otherwise, all as
\nthough such payment had not been made.<\/p>\n
SECTION 7.03. Waivers. The Company hereby expressly waives
\ndiligence, presentment, demand for payment, protest, any requirement that any
\nright or power be exhausted or any action be taken against any Designated
\nSubsidiary or against any other guarantor of all or any portion of the Advances,
\nand all other notices and demands whatsoever.<\/p>\n
SECTION 7.04. Remedies. Each of the Lenders and the Agent may
\npursue its respective rights and remedies under this Article VII and shall be
\nentitled to payment hereunder notwithstanding any other guarantee of all or any
\npart of the Advances to the Designated Subsidiaries, and notwithstanding any
\naction taken by any such Lender or the Agent to enforce any of its rights or
\nremedies under such other guarantee, or any payment received thereunder. The
\nCompany hereby irrevocably waives any claim or other right that it may now or
\nhereafter<\/p>\n
60<\/p>\n
acquire against any Designated Subsidiary that arises from the existence,
\npayment, performance or enforcement of the Company’s obligations under this
\nArticle VII, including, without limitation, any right of subrogation,
\nreimbursement, exoneration, contribution or indemnification and any right to
\nparticipate in any claim or remedy of the Agent or the Lenders against any
\nDesignated Subsidiary, whether or not such claim, remedy or right arises in
\nequity or under contract, statute or common law, including, without limitation,
\nthe right to take or receive from the Designated Subsidiary, directly or
\nindirectly, in cash or other property or by set-off or in any other manner,
\npayment or security on account of such claim, remedy or right. If any amount
\nshall be paid to the Company in violation of the preceding sentence at any time
\nwhen all the Obligations shall not have been paid in full, such amount shall be
\nheld in trust for the benefit of the Lenders and the Agent and shall forthwith
\nbe paid to the Agent for its own account and the accounts of the respective
\nLenders to be credited and applied to the Obligations, whether matured or
\nunmatured, in accordance with the terms of this Agreement, or to be held as
\ncollateral for any Obligations or other amounts payable under this Agreement
\nthereafter arising. The Company acknowledges that it will receive direct and
\nindirect benefits from the financing arrangements contemplated by this Agreement
\nand that the waiver set forth in this section is knowingly made in contemplation
\nof such benefits.<\/p>\n
SECTION 7.05. No Stay. The Company agrees that, as between (a)
\nthe Company and (b) the Lenders and the Agent, the Obligations of any Designated
\nSubsidiary guaranteed by the Company hereunder may be declared to be forthwith
\ndue and payable as provided in Article VI hereof for purposes of this Article
\nVII by declaration to the Company as guarantor notwithstanding any stay,
\ninjunction or other prohibition preventing such declaration as against such
\nDesignated Subsidiary and that, in the event of such declaration to the Company
\nas guarantor, such Obligations (whether or not due and payable by such
\nDesignated Subsidiary), shall forthwith become due and payable by the Company
\nfor purposes of this Article VII.<\/p>\n
SECTION 7.06. Survival. This guarantee is a continuing
\nguarantee and shall (a) remain in full force and effect until payment in full
\n(after the Termination Date) of the Obligations and all other amounts payable
\nunder this guaranty, (b) be binding upon the Company, its successors and
\nassigns, (c) inure to the benefit of and be enforceable by each Lender
\n(including each assignee Lender pursuant to Section 9.07) and the Agent and
\ntheir respective successors, transferees and assigns and (d) shall be reinstated
\nif at any time any payment to a Lender or the Agent hereunder is required to be
\nrestored by such Lender or the Agent. Without limiting the generality of the
\nforegoing clause (c), each Lender may assign or otherwise transfer its interest
\nin any Advance to any other person or entity, and such other person or entity
\nshall thereupon become vested with all the rights in respect thereof granted to
\nsuch Lender herein or otherwise.<\/p>\n
61<\/p>\n
ARTICLE VIII<\/p>\n
THE AGENT<\/p>\n
SECTION 8.01. Authorization and Action. Each Lender hereby
\nappoints and authorizes the Agent to take such action as agent on its behalf and
\nto exercise such powers and discretion under this Agreement as are delegated to
\nthe Agent by the terms hereof, together with such powers and discretion as are
\nreasonably incidental thereto. As to any matters not expressly provided for by
\nthis Agreement (including, without limitation, enforcement or collection of the
\nNotes), the Agent shall not be required to exercise any discretion or take any
\naction, but shall be required to act or to refrain from acting (and shall be
\nfully protected in so acting or refraining from acting) upon the instructions of
\nthe Majority Lenders, and such instructions shall be binding upon all Lenders
\nand all holders of Notes; provided, however, that the Agent shall not be
\nrequired to take any action that exposes the Agent to personal liability or that
\nis contrary to this Agreement or applicable law. The Agent agrees to give to
\neach Lender prompt notice of each notice given to it by any Borrower pursuant to
\nthe terms of this Agreement.<\/p>\n
SECTION 8.02. Agent’s Reliance, Etc. Neither the Agent nor any
\nof its directors, officers, agents or employees shall be liable for any action
\ntaken or omitted to be taken by it or them under or in connection with this
\nAgreement, except for its or their own gross negligence or willful misconduct.
\nWithout limitation of the generality of the foregoing, the Agent: (a) may treat
\nthe Lender that made any Advance as the holder of the Debt resulting therefrom
\nuntil the Agent receives and accepts an Assignment and Acceptance entered into
\nby such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
\nin Section 9.07; (b) may consult with legal counsel (including counsel for the
\nCompany), independent public accountants and other experts selected by it and
\nshall not be liable for any action taken or omitted to be taken in good faith by
\nit in accordance with the advice of such counsel, accountants or experts; (c)
\nmakes no warranty or representation to any Lender and shall not be responsible
\nto any Lender for any statements, warranties or representations (whether written
\nor oral) made in or in connection with this Agreement; (d) shall not have any
\nduty to ascertain or to inquire as to the performance or observance of any of
\nthe terms, covenants or conditions of this Agreement on the part of any Borrower
\nor to inspect the property (including the books and records) of any Borrower;
\n(e) shall not be responsible to any Lender for the due execution, legality,
\nvalidity, enforceability, genuineness, sufficiency or value of this Agreement or
\nany other instrument or document furnished pursuant hereto; and (f) shall incur
\nno liability under or in respect of this Agreement by acting upon any notice,
\nconsent, certificate or other instrument or writing (which may be by telecopier,
\ntelegram or telex) believed by it to be genuine and signed or sent by the proper
\nparty or parties.<\/p>\n
SECTION 8.03. Citibank and Affiliates. With respect to its Commitment,
\nthe Advances made by it and the Note issued to it, Citibank shall have the same
\nrights and powers under this Agreement as any other Lender and may exercise the
\nsame as though it were not the<\/p>\n
62<\/p>\n
Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly
\nindicated, include Citibank in its individual capacity. Citibank and its
\nAffiliates may accept deposits from, lend money to, act as trustee under
\nindentures of, accept investment banking engagements from and generally engage
\nin any kind of business with, the Company, any of its Subsidiaries and any
\nPerson who may do business with or own securities of the Company or any such
\nSubsidiary, all as if Citibank were not the Agent and without any duty to
\naccount therefor to the Lenders.<\/p>\n
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
\nthat it has, independently and without reliance upon the Agent or any other
\nLender and based on the financial statements referred to in Section 4.01 and
\nsuch other documents and information as it has deemed appropriate, made its own
\ncredit analysis and decision to enter into this Agreement. Each Lender also
\nacknowledges that it will, independently and without reliance upon the Agent or
\nany other Lender and based on such documents and information as it shall deem
\nappropriate at the time, continue to make its own credit decisions in taking or
\nnot taking action under this Agreement.<\/p>\n
SECTION 8.05. Indemnification. The Lenders agree to indemnify
\nthe Agent (to the extent not reimbursed by a Borrower), ratably according to the
\nrespective principal amounts of the Revolving Credit Advances then owed to each
\nof them (or if no Revolving Credit Advances are at the time outstanding, ratably
\naccording to the respective amounts of their Commitments), from and against any
\nand all liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, expenses or disbursements of any kind or nature
\nwhatsoever that may be imposed on, incurred by, or asserted against the Agent in
\nany way relating to or arising out of this Agreement or any action taken or
\nomitted by the Agent under this Agreement, provided that no Lender shall be
\nliable for any portion of such liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses or disbursements resulting
\nfrom the Agent’s gross negligence or willful misconduct. Without limitation of
\nthe foregoing, each Lender agrees to reimburse the Agent promptly upon demand
\nfor its ratable share of any out-of-pocket expenses (including counsel fees)
\nincurred by the Agent in connection with the preparation, execution, delivery,
\nadministration, modification, amendment or enforcement (whether through
\nnegotiations, legal proceedings or otherwise) of, or legal advice in respect of
\nrights or responsibilities under, this Agreement, to the extent that the Agent
\nis not reimbursed for such expenses by a Borrower.<\/p>\n
SECTION 8.06. Successor Agent. The Agent may resign at any
\ntime by giving written notice thereof to the Lenders and the Company and may be
\nremoved at any time with or without cause by the Majority Lenders. The Company
\nmay at any time, by notice to the Agent, propose a successor Agent (which shall
\nmeet the criteria described below) specified in such notice and request that the
\nLenders be notified thereof by the Agent with a view to their removal of the
\nAgent and their appointment of such successor Agent; the Agent agrees to forward
\nany such notice to the Lenders promptly upon its receipt by the Agent. Upon any
\nsuch resignation or removal, the Majority Lenders shall have the right to
\nappoint a successor Agent. If no successor<\/p>\n
63<\/p>\n
Agent shall have been so appointed by the Majority Lenders, and shall have
\naccepted such appointment, within 30 days after the retiring Agent’s giving of
\nnotice of resignation or the Majority Lenders’ removal of the retiring Agent,
\nthen the retiring Agent may, on behalf of the Lenders, appoint a successor
\nAgent, which shall be a commercial bank organized under the laws of the United
\nStates of America or of any State thereof and having a combined capital and
\nsurplus of at least $500,000,000. Upon the acceptance of any appointment as
\nAgent hereunder by a successor Agent, such successor Agent shall thereupon
\nsucceed to and become vested with all the rights, powers, discretion, privileges
\nand duties of the retiring Agent, and the retiring Agent shall be discharged
\nfrom its duties and obligations under this Agreement. After any retiring Agent’s
\nresignation or removal hereunder as Agent, the provisions of this Article VIII
\nshall inure to its benefit as to any actions taken or omitted to be taken by it
\nwhile it was Agent under this Agreement.<\/p>\n
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated
\nunder this Agreement to carry out duties of the Agent. The Sub-Agent shall be
\nsubject to each of the obligations in this Agreement to be performed by the
\nSub-Agent, and each of the Borrowers and the Lenders agrees that the Sub-Agent
\nshall be entitled to exercise each of the rights and shall be entitled to each
\nof the benefits of the Agent under this Agreement as relate to the performance
\nof its obligations hereunder.<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
\nprovision of this Agreement or the Revolving Credit Notes, nor consent to any
\ndeparture by any Borrower therefrom, shall in any event be effective unless the
\nsame shall be in writing and signed by the Majority Lenders, and then such
\nwaiver or consent shall be effective only in the specific instance and for the
\nspecific purpose for which given; provided, however, that no amendment, waiver
\nor consent shall, unless in writing and signed by all the Lenders, do any of the
\nfollowing: (a) increase the Commitments of the Lenders or subject the Lenders to
\nany additional obligations, (b) reduce the principal of, or interest on, the
\nRevolving Credit Advances or any fees or other amounts payable hereunder, (c)
\npostpone any date fixed for any payment of principal of, or interest on, the
\nRevolving Credit Advances or any fees or other amounts payable hereunder, (d)
\nrelease the Company from any of its obligations under Article VII, (e) require
\nthe duration of an Interest Period to be nine months if such period is not
\navailable to all Lenders or (f) amend this Section 9.01; and provided further
\nthat no amendment, waiver or consent shall, unless in writing and signed by the
\nAgent in addition to the Lenders required above to take such action, affect the
\nrights or duties of the Agent under this Agreement or any Note.<\/p>\n
64<\/p>\n
SECTION 9.02. Notices, Etc. All notices and other
\ncommunications provided for hereunder shall be in writing (including telecopier,
\ntelegraphic or telex communication) and mailed (return receipt requested),
\ntelecopied, telegraphed, telexed or delivered, if to the Company or to any
\nDesignated Subsidiary, at the Company’s address at 101 Columbia Road,
\nMorristown, New Jersey 07962-1219, Attention: Assistant Treasurer; if to any
\nInitial Lender, at its Domestic Lending Office specified opposite its name on
\nSchedule I hereto; if to any other Lender, at its Domestic Lending Office
\nspecified in the Assignment and Acceptance pursuant to which it became a Lender;
\nand if to the Agent, at its address at Two Penns Way, New Castle, Delaware
\n19720, Attention: Bank Loan Syndications Department, with a copy to 399 Park
\nAvenue, New York, New York 10043, Attention: Carolyn Sheridan; or, as to any
\nBorrower or the Agent, at such other address as shall be designated by such
\nparty in a written notice to the other parties and, as to each other party, at
\nsuch other address as shall be designated by such party in a written notice to
\nthe Company and the Agent. All such notices and communications shall, when
\nmailed, telecopied, telegraphed or telexed, be effective when deposited in the
\nmails, telecopied, delivered to the telegraph company or confirmed by telex
\nanswerback, respectively, except that notices and communications to the Agent
\npursuant to Article II, III or VIII shall not be effective until received by the
\nAgent. Delivery by telecopier of an executed counterpart of any amendment or
\nwaiver of any provision of this Agreement or the Notes or of any Exhibit hereto
\nto be executed and delivered hereunder shall be effective as delivery of a
\nmanually executed counterpart thereof.<\/p>\n
SECTION 9.03. No Waiver; Remedies. No failure on the part of
\nany Lender or the Agent to exercise, and no delay in exercising, any right
\nhereunder or under any Note shall operate as a waiver thereof; nor shall any
\nsingle or partial exercise of any such right preclude any other or further
\nexercise thereof or the exercise of any other right. The remedies herein
\nprovided are cumulative and not exclusive of any remedies provided by law.<\/p>\n
SECTION 9.04. Costs and Expenses. (a) The Company agrees to
\npay on demand all costs and expenses of the Agent in connection with the
\nadministration, modification and amendment of this Agreement, the Notes and the
\nother documents to be delivered hereunder, including, without limitation, (i)
\nall due diligence, syndication (including printing, distribution and bank
\nmeetings), transportation, computer, duplication, appraisal, consultant, and
\naudit expenses and (ii) the reasonable fees and expenses of counsel for the
\nAgent with respect thereto. The Company further agrees to pay on demand all
\ncosts and expenses of the Agent and the Lenders, if any (including, without
\nlimitation, reasonable counsel fees and expenses), in connection with the
\nenforcement (whether through negotiations, legal proceedings or otherwise) of
\nthis Agreement, the Notes and the other documents to be delivered hereunder,
\nincluding, without limitation, reasonable fees and expenses of counsel for the
\nAgent and each Lender in connection with the enforcement of rights under this
\nSection 9.04(a).<\/p>\n
(b) Each Borrower agrees to indemnify and hold harmless the
\nAgent and each Lender and each of their Affiliates and their officers,
\ndirectors, employees, agents and advisors (each, an “Indemnified Party”) from
\nand against any and all claims, damages, losses, liabilities<\/p>\n
65<\/p>\n
and expenses (including, without limitation, reasonable fees and expenses of
\ncounsel) that may be incurred by or asserted or awarded against any Indemnified
\nParty, in each case arising out of or in connection with or by reason of, or in
\nconnection with the preparation for a defense of, any investigation, litigation
\nor proceeding arising out of, related to or in connection with the Notes, this
\nAgreement, any of the transactions contemplated herein or the actual or proposed
\nuse of the proceeds of the Advances whether or not such investigation,
\nlitigation or proceeding is brought by the Company, its directors, shareholders
\nor creditors or an Indemnified Party or any other Person or any Indemnified
\nParty is otherwise a party thereto and whether or not the transactions
\ncontemplated hereby are consummated, except to the extent any such claim,
\ndamage, loss, liability or expense has resulted from such Indemnified Party’s
\ngross negligence or willful misconduct. The Company also agrees not to assert
\nany claim against any Indemnified Party on any theory of liability for special,
\nindirect, consequential or punitive damages arising out of or otherwise relating
\nto the Notes, this Agreement, any of the transactions contemplated herein or the
\nactual or proposed use of the proceeds of the Advances.<\/p>\n
(c) If any payment of principal of, or Conversion of, any
\nEurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to or for
\nthe account of a Lender other than on the last day of the Interest Period for
\nsuch Advance, as a result of a payment or Conversion pursuant to Section
\n2.03(d), 2.05(b), 2.09(a) or (b) or 2.11, acceleration of the maturity of the
\nNotes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
\ndemand by such Lender (with a copy of such demand to the Agent), pay to the
\nAgent for the account of such Lender any amounts required to compensate such
\nLender for any additional losses, costs or expenses that it may reasonably incur
\nas a result of such payment or Conversion, including, without limitation, any
\nloss (including loss of anticipated profits), cost or expense incurred by reason
\nof the liquidation or reemployment of deposits or other funds acquired by any
\nLender to fund or maintain such Advance.<\/p>\n
(d) Without prejudice to the survival of any other agreement
\nof the Borrower hereunder, the agreements and obligations of the Borrower
\ncontained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
\nprincipal, interest and all other amounts payable hereunder and under the Notes
\nand the termination in whole of any Commitment hereunder.<\/p>\n
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
\nduring the continuance of any Event of Default and (b) the making of the request
\nor the granting of the consent specified by Section 6.01 to authorize the Agent
\nto declare the Notes due and payable pursuant to the provisions of Section 6.01,
\neach Lender and each of its Affiliates is hereby authorized at any time and from
\ntime to time, to the fullest extent permitted by law, to set off and apply any
\nand all deposits (general or special, time or demand, provisional or final) at
\nany time held and other indebtedness at any time owing by such Lender or such
\nAffiliate to or for the credit or the account of any Borrower against any and
\nall of the obligations of such Borrower now or hereafter existing under this
\nAgreement and the Note of such Borrower held by such Lender, whether or not such
\nLender shall have made any demand under this Agreement or such<\/p>\n
66<\/p>\n
Note and although such obligations may be unmatured. Each Lender agrees promptly
\nto notify the relevant Borrower after any such set-off and application, provided
\nthat the failure to give such notice shall not affect the validity of such
\nset-off and application. The rights of each Lender and its Affiliates under this
\nSection are in addition to other rights and remedies (including, without
\nlimitation, other rights of set-off) that such Lender and its Affiliates may
\nhave.<\/p>\n
SECTION 9.06. Binding Effect. This Agreement shall become
\neffective (other than Sections 2.01 and 2.03, which shall only become effective
\nupon satisfaction of the conditions precedent set forth in Section 3.01) when it
\nshall have been executed by the Company and the Agent and when the Agent shall
\nhave been notified by each Initial Lender that such Initial Lender has executed
\nit and thereafter shall be binding upon and inure to the benefit of each
\nBorrower, the Agent and each Lender and their respective successors and assigns,
\nexcept that no Borrower shall not have the right to assign its rights hereunder
\nor any interest herein without the prior written consent of the Lenders.<\/p>\n
SECTION 9.07. Assignments and Participations. (a) Each Lender
\nmay at any time, with notice to the Company prior to making any proposal to any
\npotential assignee and with the consent of the Company, which consent shall not
\nbe unreasonably withheld (and shall at any time, if requested to do so by the
\nCompany pursuant to Section 2.05(b), 2.10 or 2.13) assign to one or more Persons
\nall or a portion of its rights and obligations under this Agreement (including,
\nwithout limitation, all or a portion of its Commitment, the Revolving Credit
\nAdvances owing to it and the Revolving Credit Note or Notes held by it);
\nprovided, however, that (i) the Company’s consent shall not be required (A) in
\nthe case of an assignment to an Affiliate of such Lender, provided that notice
\nthereof shall have been given to the Company and the Agent, or (B) in the case
\nof an assignment of the type described in subsection (g) below; (ii) each such
\nassignment shall be of a constant, and not a varying, percentage of all rights
\nand obligations under this Agreement (other than any right to make Competitive
\nBid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes);
\n(iii) except in the case of an assignment to a Person that, immediately prior to
\nsuch assignment, was a Lender or an assignment of all of a Lender’s rights and
\nobligations under this Agreement, the amount of the Commitment of the assigning
\nLender being assigned pursuant to each such assignment (determined as of the
\ndate of the Assignment and Acceptance with respect to such assignment) shall in
\nno event be less than $10,000,000 or an integral multiple of $1,000,000 in
\nexcess thereof; (iv) each such assignment shall be to an Eligible Assignee, (v)
\neach such assignment made as a result of a demand by the Company pursuant to
\nthis Section 9.07(a) shall be arranged by the Company after consultation with,
\nand subject to the approval of, the Agent, and shall be either an assignment of
\nall of the rights and obligations of the assigning Lender under this Agreement
\nor an assignment of a portion of such rights and obligations made concurrently
\nwith another such assignment or other such assignments that together cover all
\nof the rights and obligations of the assigning Lender under this Agreement, (vi)
\nno Lender shall be obligated to make any such assignment as a result of a demand
\nby the Borrower pursuant to this Section 9.07(a) unless and until such Lender
\nshall have received one or more payments from either the Borrower or one or<\/p>\n
67<\/p>\n
more Eligible Assignees in an aggregate amount at least equal to the aggregate
\noutstanding principal amount of the Advances owing to such Lender, together with
\naccrued interest thereon to the date of payment of such principal amount and all
\nother amounts payable to such Lender under this Agreement and all of the
\nobligations of the Borrower to such Lender shall have been satisfied; and (vii)
\nthe parties to each such assignment shall execute and deliver to the Agent, for
\nits acceptance and recording in the Register, an Assignment and Acceptance,
\ntogether with a processing and recordation fee of $3,500 and, if the assigning
\nLender is not retaining a Commitment hereunder, any Revolving Credit Note
\nsubject to such assignment. Upon such execution, delivery, acceptance and
\nrecording, from and after the effective date specified in each Assignment and
\nAcceptance, (x) the assignee thereunder shall be a party hereto and, to the
\nextent that rights and obligations hereunder have been assigned to it pursuant
\nto such Assignment and Acceptance, have the rights and obligations of a Lender
\nhereunder and (y) the Lender assignor thereunder shall, to the extent that
\nrights and obligations hereunder have been assigned by it pursuant to such
\nAssignment and Acceptance, relinquish its rights and be released from its
\nobligations under this Agreement (and, in the case of an Assignment and
\nAcceptance covering all or the remaining portion of an assigning Lender’s rights
\nand obligations under this Agreement, such Lender shall cease to be a party
\nhereto, provided, however, that such assigning Lender’s rights under Sections
\n2.10, 2.13 and 9.04, and its obligations under Section 8.05, shall survive such
\nassignment as to matters occurring prior to the effective date of such
\nassignment).<\/p>\n
(b) By executing and delivering an Assignment and Acceptance,
\nthe Lender assignor thereunder and the assignee thereunder confirm to and agree
\nwith each other and the other parties hereto as follows: (i) other than as
\nprovided in such Assignment and Acceptance, such assigning Lender makes no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with this
\nAgreement or any other instrument or document furnished pursuant hereto or the
\nexecution, legality, validity, enforceability, genuineness, sufficiency or value
\nof this Agreement or any other instrument or document furnished pursuant hereto;
\n(ii) such assigning Lender makes no representation or warranty and assumes no
\nresponsibility with respect to the financial condition of any Borrower or the
\nperformance or observance by such Borrower of any of its obligations under this
\nAgreement or any other instrument or document furnished pursuant hereto; (iii)
\nsuch assignee confirms that it has received a copy of this Agreement, together
\nwith copies of the financial statements referred to in Section 4.01 and such
\nother documents and information as it has deemed appropriate to make its own
\ncredit analysis and decision to enter into such Assignment and Acceptance; (iv)
\nsuch assignee will, independently and without reliance upon the Agent, such
\nassigning Lender or any other Lender and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in taking or not taking action under this Agreement; (v) such assignee
\nconfirms that it is an Eligible Assignee; (vi) such assignee appoints and
\nauthorizes the Agent to take such action as agent on its behalf and to exercise
\nsuch powers and discretion under this Agreement as are delegated to the Agent by
\nthe terms hereof, together with such powers and discretion as are reasonably
\nincidental thereto; and (vii) such assignee agrees that it will perform in
\naccordance with their terms all of<\/p>\n
68<\/p>\n
the obligations that by the terms of this Agreement are required to be performed
\nby it as a Lender.<\/p>\n
(c) Upon its receipt of an Assignment and Acceptance executed
\nby an assigning Lender and an assignee representing that it is an Eligible
\nAssignee, together with any Revolving Credit Note or Notes subject to such
\nassignment, the Agent shall, if such Assignment and Acceptance has been
\ncompleted and is in substantially the form of Exhibit C hereto, (i) accept such
\nAssignment and Acceptance, (ii) record the information contained therein in the
\nRegister and (iii) give prompt notice thereof to the Company and to each other
\nBorrower.<\/p>\n
(d) The Agent shall maintain at its address referred to in
\nSection 9.02 a copy of each Assignment and Acceptance delivered to and accepted
\nby it and a register for the recordation of the names and addresses of the
\nLenders and the Commitment of, and principal amount of the Advances owing to,
\neach Lender from time to time (the “Register”). The entries in the Register
\nshall be conclusive and binding for all purposes, absent manifest error, and the
\nCompany, each other Borrower, the Agent and the Lenders may treat each Person
\nwhose name is recorded in the Register as a Lender hereunder for all purposes of
\nthis Agreement. The Register shall be available for inspection by the Company,
\nany other Borrower or any Lender at any reasonable time and from time to time
\nupon reasonable prior notice.<\/p>\n
(e) Each Lender may sell participations to one or more banks
\nor other entities (other than the Company or any of its Affiliates) in or to all
\nor a portion of its rights and obligations under this Agreement (including,
\nwithout limitation, all or a portion of its Commitment, the Advances owing to it
\nand any Note or Notes held by it); provided, however, that (i) such Lender’s
\nobligations under this Agreement (including, without limitation, its Commitment
\nto the Company and the other Borrowers hereunder) shall remain unchanged, (ii)
\nsuch Lender shall remain solely responsible to the other parties hereto for the
\nperformance of such obligations, (iii) such Lender shall remain the holder of
\nany such Note for all purposes of this Agreement, (iv) the Company, any other
\nBorrower, the Agent and the other Lenders shall continue to deal solely and
\ndirectly with such Lender in connection with such Lender’s rights and
\nobligations under this Agreement, (v) no participant under any such
\nparticipation shall have any right to approve any amendment or waiver of any
\nprovision of this Agreement or any Note, or any consent to any departure by any
\nBorrower therefrom, except to the extent that such amendment, waiver or consent
\nwould reduce the principal of, or interest on, the Notes or any fees or other
\namounts payable hereunder, in each case to the extent subject to such
\nparticipation, or postpone any date fixed for any payment of principal of, or
\ninterest on, the Notes or any fees or other amounts payable hereunder, in each
\ncase to the extent subject to such participation and (vi) within 30 days of the
\neffective date of such participation, such Lender shall provide notice of such
\nparticipation to the Company.<\/p>\n
(f) Any Lender may, in connection with any assignment or
\nparticipation or proposed assignment or participation pursuant to this Section
\n9.07, disclose to the assignee or <\/p>\n
69<\/p>\n
participant or proposed assignee or participant, any information relating to
\nthe Company or any Borrower furnished to such Lender by or on behalf of such
\nBorrower; provided that, prior to any such disclosure, the assignee or
\nparticipant or proposed assignee or participant shall agree to preserve the
\nconfidentiality of any confidential information relating to such Borrower
\nreceived by it from such Lender.<\/p>\n
(g) Notwithstanding any other provision set forth in this
\nAgreement, any Lender may at any time assign or create a security interest in
\nall or any portion of its rights under this Agreement (including, without
\nlimitation, the Advances owing to it and any Note or Notes held by it) in favor
\nof any Federal Reserve Bank in accordance with Regulation A of the Board of
\nGovernors of the Federal Reserve System.<\/p>\n
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
\nCompany may at any time, and from time to time, by delivery to the Agent of a
\nDesignation Letter duly executed by the Company and the respective Subsidiary
\nand substantially in the form of Exhibit D hereto, designate such Subsidiary as
\na “Designated Subsidiary” for purposes of this Agreement and such Subsidiary
\nshall thereupon become a “Designated Subsidiary” for purposes of this Agreement
\nand, as such, shall have all of the rights and obligations of a Borrower
\nhereunder. The Agent shall promptly notify each Lender of each such designation
\nby the Company and the identity of the respective Subsidiary.<\/p>\n
(b) Termination. Upon the payment and performance in full of
\nall of the indebtedness, liabilities and obligations under this Agreement and
\nthe Notes of any Designated Subsidiary then, so long as at the time no Notice of
\nRevolving Credit Borrowing or Notice of Competitive Bid Borrowing in respect of
\nsuch Designated Subsidiary is outstanding, such Subsidiary’s status as a
\n“Designated Subsidiary” shall terminate upon notice to such effect from the
\nAgent to the Lenders (which notice the Agent shall give promptly upon its
\nreceipt of a request therefor from the Company). Thereafter, the Lenders shall
\nbe under no further obligation to make any Advance hereunder to such Designated
\nSubsidiary.<\/p>\n
SECTION 9.09. Confidentiality. Each of the Lenders and the
\nAgent hereby agrees that it will use reasonable efforts (e.g., procedures
\nsubstantially comparable to those applied by such Lender or the Agent in respect
\nof non-public information as to the business of such Lender or the Agent) to
\nkeep confidential any financial reports and other information from time to time
\nsupplied to it by the Company hereunder to the extent that such information is
\nnot and does not become publicly available and which the Company indicates at
\nthe time is to be treated confidentially, provided, however, that nothing herein
\nshall affect the disclosure of any such information (i) by the Agent to any
\nLender, (ii) to the extent required by law (including statute, rule, regulation
\nor judicial process), (iii) to counsel for any Lender or the Agent or to their
\nrespective independent public accountants, (iv) to bank examiners and auditors
\nand appropriate government examining authorities, (v) to the Agent or any other
\nLender, (vi) in connection with any litigation to which any Lender or the Agent
\nis a party, (vii) to actual or prospective assignees<\/p>\n
70<\/p>\n
and participants as contemplated by Section 9.07(f) or (viii) to any Affiliate
\nof the Agent or any Lender or to such Affiliate’s officers, directors,
\nemployees, agents and advisors, provided that, prior to any such disclosure,
\nsuch Affiliate or such Affiliate’s officers, directors, employees, agents or
\nadvisors, as the case may be, shall agree to preserve the confidentiality of any
\nconfidential information relating to the Company received by it; a determination
\nby a Lender or the Agent as to the application of the circumstances described in
\nthe foregoing clauses (i)-(viii) being conclusive if made in good faith; and
\neach of the Lenders and the Agent agrees that it will follow procedures which
\nare intended to put any transferee of such confidential information on notice
\nthat such information is confidential.<\/p>\n
SECTION 9.10. Mitigation of Yield Protection. Each Lender
\nhereby agrees that, commencing as promptly as practicable after it becomes aware
\nof the occurrence of any event giving rise to the operation of Section 2.10(a),
\n2.11 or 2.13 with respect to such Lender, such Lender will give notice thereof
\nthrough the Agent to the respective Borrower. A Borrower may at any time, by
\nnotice through the Agent to any Lender, request that such Lender change its
\nApplicable Lending Office as to any Advance or Type of Advance or that it
\nspecify a new Applicable Lending Office with respect to its Commitment and any
\nAdvance held by it or that it rebook any such Advance with a view to avoiding or
\nmitigating the consequences of an occurrence such as described in the preceding
\nsentence, and such Lender will use reasonable efforts to comply with such
\nrequest unless, in the opinion of such Lender, such change or specification or
\nrebooking is inadvisable or might have an adverse effect, economic or otherwise,
\nupon it, including its reputation. In addition, each Lender agrees that, except
\nfor changes or specifications or rebookings required by law or effected pursuant
\nto the preceding sentence, if the result of any change or change of
\nspecification of Applicable Lending Office or rebooking would, but for this
\nsentence, be to impose additional costs or requirements upon the respective
\nBorrower pursuant to Section 2.10(a), Section 2.11 or Section 2.13 (which would
\nnot be imposed absent such change or change of specification or rebooking) by
\nreason of legal or regulatory requirements in effect at the time thereof and of
\nwhich such Lender is aware at such time, then such costs or requirements shall
\nnot be imposed upon such Borrower but shall be borne by such Lender. All
\nexpenses incurred by any Bank in changing an Applicable Lending Office or
\nspecifying another Applicable Lending Office of such Lender or rebooking any
\nAdvance in response to a request from a Borrower shall be paid by such Borrower.
\nNothing in this Section 9.10 (including, without limitation, any failure by a
\nLender to give any notice contemplated in the first sentence hereof) shall
\nlimit, reduce or postpone any obligations of the respective Borrower under
\nSection 2.10(a), Section 2.11 or Section 2.13, including any obligations payable
\nin respect of any period prior to the date of any change or specification of a
\nnew Applicable Lending Office or any rebooking of any Advance.<\/p>\n
SECTION 9.11. Governing Law. This Agreement and the Notes shall be
\ngoverned by, and construed in accordance with, the laws of the State of New
\nYork.<\/p>\n
71<\/p>\n
SECTION 9.12. Execution in Counterparts. This Agreement may be
\nexecuted in any number of counterparts and by different parties hereto in
\nseparate counterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which taken together shall constitute one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nAgreement by telecopier shall be effective as delivery of a manually executed
\ncounterpart of this Agreement.<\/p>\n
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties
\nhereto hereby irrevocably and unconditionally submits, for itself and its
\nproperty, to the nonexclusive jurisdiction of any New York State court or
\nfederal court of the United States of America sitting in New York City, and any
\nappellate court from any thereof, in any action or proceeding arising out of or
\nrelating to this Agreement or the Notes, or for recognition or enforcement of
\nany judgment, and each of the parties hereto hereby irrevocably and
\nunconditionally agrees that all claims in respect of any such action or
\nproceeding may be heard and determined in any such New York State court or, to
\nthe extent permitted by law, in such federal court. Each Designated Subsidiary
\nhereby agrees that service of process in any such action or proceeding brought
\nin the any such New York State court or in such federal court may be made upon
\nCT Corporation System at its offices at 1633 Broadway, New York, New York 10019
\n(the “Process Agent”) and each Designated Subsidiary hereby irrevocably appoints
\nthe Process Agent its authorized agent to accept such service of process, and
\nagrees that the failure of the Process Agent to give any notice of any such
\nservice shall not impair or affect the validity of such service or of any
\njudgment rendered in any action or proceeding based thereon. Each Borrower
\nhereby further irrevocably consents to the service of process in any action or
\nproceeding in such courts by the mailing thereof by any parties hereto by
\nregistered or certified mail, postage prepaid, to such Borrower at its address
\nspecified pursuant to Section 9.02. Each of the parties hereto agrees that a
\nfinal judgment in any such action or proceeding shall be conclusive and may be
\nenforced in other jurisdictions by suit on the judgment or in any other manner
\nprovided by law. Nothing in this Agreement shall affect any right that any party
\nmay otherwise have to serve legal process in any other manner permitted by law
\nor to bring any action or proceeding relating to this Agreement or the Notes in
\nthe courts of any jurisdiction. To the extent that each Designated Subsidiary
\nhas or hereafter may acquire any immunity from jurisdiction of any court or from
\nany legal process (whether through service or notice, attachment prior to
\njudgment, attachment in aid of execution, execution or otherwise) with respect
\nto itself or its property, each Designated Subsidiary hereby irrevocably waives
\nsuch immunity in respect of its obligations under this Agreement.<\/p>\n
(b) Each of the parties hereto irrevocably and unconditionally
\nwaives, to the fullest extent it may legally and effectively do so, any
\nobjection that it may now or hereafter have to the laying of venue of any suit,
\naction or proceeding arising out of or relating to this Agreement or the Notes
\nin any New York State or federal court. Each of the parties hereto hereby
\nirrevocably waives, to the fullest extent permitted by law, the defense of an
\ninconvenient forum to the maintenance of such action or proceeding in any such
\ncourt.<\/p>\n
72<\/p>\n
SECTION 9.14. Substitution of Currency. If a change in any
\nForeign Currency occurs pursuant to any applicable law, rule or regulation of
\nany governmental, monetary or multi-national authority, this Agreement
\n(including, without limitation, the definitions of Eurocurrency Rate and LIBO
\nRate) will be amended to the extent determined by the Agent (acting reasonably
\nand in consultation with the Company) to be necessary to reflect the change in
\ncurrency and to put the Lenders and the Borrowers in the same position, so far
\nas possible, that they would have been in if no change in such Foreign Currency
\nhad occurred.<\/p>\n
SECTION 9.15. Final Agreement. This written agreement
\nrepresents the full and final agreement between the parties with respect to the
\nmatters addressed herein and supercedes all prior communications, written or
\noral, with respect thereto. There are no unwritten agreements between the
\nparties.<\/p>\n
SECTION 9.16. Judgment. (a) If for the purposes of obtaining
\njudgment in any court it is necessary to convert a sum due hereunder or under
\nthe Notes in any currency (the “Original Currency”) into another currency (the
\n“Other Currency”), the parties hereto agree, to the fullest extent that they may
\neffectively do so, that the rate of exchange used shall be that at which in
\naccordance with normal banking procedures the Agent could purchase the Original
\nCurrency with the Other Currency at 9:00 A.M. (New York City time) on the first
\nBusiness Day preceding that on which final judgment is given.<\/p>\n
(b) The obligation of each Borrower in respect of any sum due
\nin the Original Currency from it to any Lender or the Agent hereunder or under
\nthe Revolving Credit Note or Revolving Credit Notes held by such Lender shall,
\nnotwithstanding any judgment in any Other Currency, be discharged only to the
\nextent that on the Business Day following receipt by such Lender or the Agent
\n(as the case may be) of any sum adjudged to be so due in such Other Currency,
\nsuch Lender or the Agent (as the case may be) may in accordance with normal
\nbanking procedures purchase Dollars with such Other Currency; if the amount of
\nDollars so purchased is less than the sum originally due to such Lender or the
\nAgent (as the case may be) in the Original Currency, such Borrower agrees, as a
\nseparate obligation and notwithstanding any such judgment, to indemnify such
\nLender or the Agent (as the case may be) against such loss, and if the amount of
\nDollars so purchased exceeds the sum originally due to any Lender or the Agent
\n(as the case may be) in the Original Currency, such Lender or the Agent (as the
\ncase may be) agrees to remit to such Borrower such excess.<\/p>\n
SECTION 9.17. Waiver of Jury Trial. Each Borrower, the Agent
\nand each Lender hereby irrevocably waive all right to trial by jury in any
\naction, proceeding or counterclaim (whether based on contract, tort or
\notherwise) arising out of or relating to this Agreement or the Notes or the
\nactions of the Agent or any Lender in the negotiation, administration,
\nperformance or enforcement thereof.<\/p>\n
73<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be executed by their respective officers thereunto duly authorized,
\nas of the date first above written.<\/p>\n
HONEYWELL INTERNATIONAL INC.<\/p>\n
By: \/s\/ James V. Gelly
\n ———————————–
\n Name: James V. Gelly
\n Title: Vice President and Treasurer<\/p>\n
CITIBANK, N.A., as Agent<\/p>\n
By: \/s\/ Carolyn A. Kee
\n ———————————–
\n Name: Carolyn A. Kee
\n Title: Vice President<\/p>\n
COMMITMENT ARRANGER AND ADMINISTRATIVE AGENT
\n$106,666,666.67 CITIBANK, N.A.<\/p>\n
By: \/s\/ Carolyn A. Kee
\n ———————————–
\n Name: Carolyn A. Kee
\n Title: Vice President<\/p>\n
CO-SYNDICATION AGENTS<\/p>\n
$80,000,000.00 BANK OF AMERICA, N.A.<\/p>\n
By: \/s\/ John W. Pocalyko
\n ———————————–
\n Name: John W. Pocalyko
\n Title: Managing Director<\/p>\n
74<\/p>\n
$80,000,000.00 THE CHASE MANHATTAN BANK<\/p>\n
By: \/s\/ John C. Riordan
\n ———————————–
\n Name: John C. Riordan
\n Title: Vice President<\/p>\n
$80,000,000.00 DEUTSCHE BANK AG, NEW YORK AND\/OR
\n CAYMAN ISLANDS BRANCH<\/p>\n
By: \/s\/ Jean M. Hannigan
\n ———————————–
\n Name: Jean M. Hannigan
\n Title: Vice President<\/p>\n
By: \/s\/ Iain Stewart
\n ———————————–
\n Name: Iain Stewart
\n Title: Vice President<\/p>\n
AGENT<\/p>\n
$80,000,000.00 BARCLAYS BANK PLC<\/p>\n
By: \/s\/ Paul Kavanagh
\n ———————————–
\n Name: Paul Kavanagh
\n Title: Director<\/p>\n
SENIOR MANAGING AGENTS<\/p>\n
$50,000,000.00 BANCA NAZIONALE DE LAVORO<\/p>\n
By:
\n ———————————–
\n Name:
\n Title:<\/p>\n
75<\/p>\n
SENIOR MANAGING AGENTS<\/p>\n
$50,000,000.00 BANCA NAZIONALE DE LAVORO S.p.A.
\n -NEW YORK BRANCH<\/p>\n
By: \/s\/ Miguel J. Medida
\n ———————————–
\n Name: Miguel J. Medida
\n Title: Vice President<\/p>\n
By: \/s\/ Leonardo Valentini
\n ———————————–
\n Name: Leonardo Valentini
\n Title: First Vice President<\/p>\n
$50,000,000.00 THE BANK OF NEW YORK<\/p>\n
By: \/s\/ Ernest Fung
\n ———————————–
\n Name: Ernest Fung
\n Title: Vice President<\/p>\n
$50,000,000.00 BANK OF TOKYO-MITSUBISHI TRUST COMPANY<\/p>\n
By: \/s\/ W. A. Nicola
\n ———————————–
\n Name: W. A. Nicola
\n Title: Vice President<\/p>\n
$50,000,000.00 BANK ONE, NA<\/p>\n
By: \/s\/ Stephen E. McDonald
\n ———————————–
\n Name: Stephen E. McDonald
\n Title: Senior Vice President<\/p>\n
$50,000,000.00 HSBC BANK USA<\/p>\n
By: \/s\/ Rochelle Forster
\n ———————————–
\n Name: Rochelle Forster
\n Title: Vice President<\/p>\n
$50,000,000.00 MELLON BANK, N.A.<\/p>\n
By: \/s\/ Donald G. Cassidy, Jr.
\n ———————————–
\n Name: Donald G. Cassidy, Jr.
\n Title: First Vice President<\/p>\n
76<\/p>\n
$50,000,000.00 REVOLVING COMMITMENT VEHICLE CORPORATION<\/p>\n
By: \/s\/ David P. Weintrob
\n ———————————–
\n Name: David P. Weintrob
\n Title: Vice President<\/p>\n
CO-AGENTS<\/p>\n
$21,666,666.67 ABN AMRO BANK N.V.<\/p>\n
By: \/s\/ Peter L. Eaton
\n ———————————–
\n Name: Peter L. Eaton
\n Title: Group Vice President<\/p>\n
By: \/s\/ John P. Richardson
\n ———————————–
\n Name: John P. Richardson
\n Title: Vice President<\/p>\n
$21,666,666.67 BANCA DI ROMA<\/p>\n
By: \/s\/ Steven Paley
\n ———————————–
\n Name: Steven Paley
\n Title: Vice President<\/p>\n
By: \/s\/ Alessandro Paoli
\n ———————————–
\n Name: Alessandro Paoli
\n Title: Asst. Treasurer<\/p>\n
77<\/p>\n
$21,666,666.67 BANQUE NATIONALE DE PARIS<\/p>\n
By: \/s\/ Richard L. Sted
\n ———————————–
\n Name: Richard L. Sted
\n Title: Senior Vice President<\/p>\n
By: \/s\/ Thomas George
\n ———————————–
\n Name: Thomas George
\n Title: Vice President, Corp.
\n Banking Division<\/p>\n
$21,666,666.67 NORTHERN TRUST COMPANY<\/p>\n
By: \/s\/ Eric Strickland
\n ———————————–
\n Name: Eric Strickland
\n Title: Vice President<\/p>\n
$21,666,666.67 THE SUMITOMO BANK, LIMITED<\/p>\n
By: \/s\/ P. R. C. Knight
\n ———————————–
\n Name: P. R. C. Knight
\n Title: Senior Vice President<\/p>\n
$21,666,666.67 WELLS FARGO BANK, NATIONAL ASSOCIATION<\/p>\n
By: \/s\/ Molly S. Van Metre
\n ———————————–
\n Name: Molly S. Van Metre
\n Title: Vice President & Senior Banker<\/p>\n
78<\/p>\n
LENDERS<\/p>\n
$13,333,333.33 BANCO BILBAO VIZCAYA<\/p>\n
By: \/s\/ John Martini
\n ———————————–
\n Name: John Martini
\n Title: Vice President, Corporate
\n Banking<\/p>\n
By: \/s\/ Alejandro Lorca
\n ———————————–
\n Name: Alejandro Lorca
\n Title: Vice President, Corporate
\n Banking<\/p>\n
$13,333,333.33 BANK OF MONTREAL<\/p>\n
By: \/s\/ Brian L. Banke
\n ———————————–
\n Name: Brian L. Banke
\n Title: Director<\/p>\n
$13,333,333.33 THE FUJI BANK, LIMITED<\/p>\n
By: \/s\/ Raymond Ventura
\n ———————————–
\n Name: Raymond Ventura
\n Title: Vice President & Manager<\/p>\n
$13,333,333.33 THE INDUSTRIAL BANK OF JAPAN<\/p>\n
By: \/s\/ J. Kenneth Biegen
\n ———————————–
\n Name: J. Kenneth Biegen
\n Title: Vice President<\/p>\n
$13,333,333.33 ROYAL BANK OF CANADA<\/p>\n
By: \/s\/ Lynne Litterini
\n ———————————–
\n Name: Lynne Litterini
\n Title: Manager<\/p>\n
79<\/p>\n
$13,333,333.33 STANDARD CHARTERED<\/p>\n
By: \/s\/ Jacob H. Yahiayan
\n ———————————–
\n Name: Jacob H. Yahiayan
\n Title: Vice President<\/p>\n
By: \/s\/ Lalita Vadhri
\n ———————————–
\n Name: Lalita Vadhri
\n Title: Assistant Vice President<\/p>\n
$13,333,333.33 UNICREDITO ITALIANO<\/p>\n
By: \/s\/ Christopher J. Eldin
\n ———————————–
\n Name: Christopher J. Eldin
\n Title: First Vice President & Deputy Manager<\/p>\n
By: \/s\/ Saiyed A. Abbas
\n ———————————–
\n Name: Saiyed A. Abbas
\n Title: Vice President<\/p>\n
$1,000,000,000 TOTAL OF COMMITMENTS<\/p>\n
EX-10
\n4
\nEXHIBIT 10.15<\/p>\n Exhibit 10.15<\/p>\n
The U.S. $1 Billion Credit Agreement dated as of January 13, 2000 among
\nHoneywell International Inc., the initial lenders named therein, Citibank, N.A.,
\nas administrative agent, Morgan Guaranty Trust Company of New York, as
\nsyndication agent, and Salomon Smith Barney Inc. and J.P. Morgan Securities
\nInc., as arrangers, has substantially the same terms as the 364-Day Credit
\nAgreement dated as of December 2, 1999 filed as Exhibit 10.11 hereto.
\nCapitalized terms in this exhibit have the meanings set forth in the December 2
\nCredit Agreement. The following are the important differences between the
\nJanuary 13 Credit Agreement and the December 2 Credit Agreement set forth in
\nExhibit 10.11:<\/p>\n
1. The January 13 Credit Agreement expires April 12, 2000 (90 days from the
\n Effective Date).<\/p>\n
2. The January 13 Credit Agreement does not provide for extension of the
\n Termination Date.<\/p>\n
3. The Commitment under the January 13 Credit Agreement is fixed at an
\n aggregate of $1 billion, with Citibank, N.A., and Morgan Guaranty Trust
\n Company of New York each committed to lend $500 million each.<\/p>\n
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