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EXECUTION COPY
U.S. $2,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of December 2, 1999
Among
HONEYWELL INTERNATIONAL INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent
and
THE CHASE MANHATTAN BANK
DEUTSCHE BANK AG
BANK OF AMERICA, N.A.
as Syndication Agents
and
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Manager
<PAGE>
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ..............................................1
SECTION 1.02. Computation of Time Periods .......................................15
SECTION 1.03. Accounting Terms ..................................................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances .....................................15
SECTION 2.02. Making the Revolving Credit Advances ..............................16
SECTION 2.03. The Competitive Bid Advances ......................................18
SECTION 2.04. Fees ..............................................................23
SECTION 2.05. Termination or Reduction of the Commitments .......................24
SECTION 2.06. Repayment of Advances .............................................26
SECTION 2.07. Interest on Revolving Credit Advances .............................26
SECTION 2.08. Interest Rate Determination .......................................27
SECTION 2.09. Prepayments of Revolving Credit Advances ..........................29
SECTION 2.10. Increased Costs ...................................................30
SECTION 2.11. Illegality ........................................................31
SECTION 2.12. Payments and Computations .........................................31
SECTION 2.13. Taxes .............................................................33
SECTION 2.14. Sharing of Payments, Etc. .........................................36
SECTION 2.15. Use of Proceeds ...................................................36
SECTION 2.16. Extension of Termination Date .....................................36
SECTION 2.17. Evidence of Debt ..................................................38
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 ...39
SECTION 3.02. Conditions Precedent to Initial Borrowing .........................41
SECTION 3.03. Initial Loan to Each Designated Subsidiary ........................41
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SECTION 3.04. Conditions Precedent to Each Revolving Credit Borrowing ...........42
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing ............43
SECTION 3.06. Determinations Under Section 3.01 .................................44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company .....................44
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants .............................................48
SECTION 5.02. Negative Covenants ................................................51
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default .................................................53
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee ...........................................58
SECTION 7.02. Guarantee Absolute ................................................58
SECTION 7.03. Waivers ...........................................................59
SECTION 7.04. Remedies ..........................................................59
SECTION 7.05. No Stay ...........................................................60
SECTION 7.06. Survival ..........................................................60
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action ..........................................60
SECTION 8.02. Agent's Reliance, Etc. ............................................60
SECTION 8.03. Citibank and Affiliates ...........................................61
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SECTION 8.04. Lender Credit Decision ............................................61
SECTION 8.05. Indemnification ...................................................61
SECTION 8.06. Successor Agent ...................................................62
SECTION 8.07. Sub-Agent .........................................................62
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. ..................................................63
SECTION 9.02. Notices, Etc. .....................................................63
SECTION 9.03. No Waiver; Remedies ...............................................64
SECTION 9.04. Costs and Expenses ................................................64
SECTION 9.05. Right of Set-off ..................................................65
SECTION 9.06. Binding Effect ....................................................65
SECTION 9.07. Assignments and Participations ....................................65
SECTION 9.08. Designated Subsidiaries ...........................................68
SECTION 9.09. Confidentiality ...................................................69
SECTION 9.10. Mitigation of Yield Protection ....................................69
SECTION 9.11. Governing Law. ....................................................70
SECTION 9.12. Execution in Counterparts .........................................70
SECTION 9.13. Jurisdiction, Etc. ................................................70
SECTION 9.14. Substitution of Currency ..........................................71
SECTION 9.15. Final Agreement ...................................................71
SECTION 9.16. Judgment ..........................................................71
SECTION 9.17. Waiver of Jury Trial ..............................................73
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<PAGE>
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of J. Edward Smith, Assistant General Counsel
of the Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
Exhibit I - Form of Opinion of Shearman & Sterling, Counsel to the Agent
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of December 2, 1999
HONEYWELL INTERNATIONAL INC., a Delaware corporation (the "Company"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"),
as administrative agent (the "Agent") for the Lenders (as hereinafter defined),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means (a) in the case of Advances
denominated in Dollars, the account of the Agent maintained by the
Agent at Citibank at its office at 399 Park Avenue, New York, New York
10043, Account No. 36852248, Attention: Janet Wallace, (b) in the case
of Advances denominated in any Foreign Currency, the account of the
Sub-Agent designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose and (c) in any such case, such
other account of the Agent as is designated in writing from time to
time by the Agent to the Company and the Lenders for such purpose.
"Alternate Currency" means any lawful currency other than
Dollars and the Major Currencies that is freely transferrable and
convertible into Dollars.
<PAGE>
2
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, as of any date, 0.145% per annum.
"Applicable Percentage" means, as of any date, a 0.055% per
annum.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.16.
"Assumption Agreement" means an agreement in substantially the
form of Exhibit D hereto by which an Eligible Assignee agrees to become
a Lender hereunder pursuant to Section 2.16, in each case agreeing to
be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/32 of 1% or,
if there is no nearest 1/32 of 1%, to the next higher 1/32 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
<PAGE>
3
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month Dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United States;
(c) 1/2 of one percent per annum above the Federal
Funds Rate; and
(d) for the period from December 15, 1999 through
January 15, 2000, two percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
denominated in Dollars that bears interest as provided in Section
2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as
the context requires.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advance or
LIBO Rate Advance, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, in the case of an Advance denominated in the
euro, in Frankfurt, Germany) and, if the applicable Business Day
relates to any Local Rate Advance, on which banks are open for business
in the country of issue of the currency of such Local Rate Advance.
"Change of Control" means that (i) any Person or group of
Persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended (the "Act")) (other than the Company,
any Subsidiary of the Company or any savings, pension or other benefit
plan for the benefit of employees of the Company or its Subsidiaries)
which theretofore beneficially owned less than 30% of the Voting Stock
of the Company then outstanding shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Act) of 30% or more in
voting power of the outstanding Voting Stock of the Company or (ii)
during any period of twelve consecutive calendar months commencing at
the effective time of the merger of Honeywell Inc. and a wholly owned
Subsidiary of the Company as contemplated by the
<PAGE>
4
Merger Agreement, individuals who at the beginning of such twelve-month
period were directors of the Company shall cease to constitute a
majority of the Board of Directors of the Company.
"Commitment" means as to any Lender (i) the Dollar amount set
forth opposite its name on the signature pages hereof, (ii) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth as its Commitment in such
Assumption Agreement or (iii) if such Lender has entered into any
Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d), in each case as the same may be terminated or reduced,
as the case may be, pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance (each
of which shall be a "Type" of Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender to such Borrower.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Consenting Lenders" has the meaning specified in Section
2.16(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Subsidiary" means, at any time, any Subsidiary
the accounts of which are required at that time to be included on a
Consolidated basis in the Consolidated financial statements of the
Company, assuming that such financial statements are prepared in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.11.
<PAGE>
5
"Debt" means, with respect to any Person: (i) indebtedness of
such Person, which is not limited as to recourse to such Person, for
borrowed money (whether by loan or the issuance and sale of debt
securities) or for the deferred (for 90 days or more) purchase or
acquisition price of property or services; (ii) indebtedness or
obligations of others which such Person has assumed or guaranteed;
(iii) indebtedness or obligations of others secured by a lien, charge
or encumbrance on property of such Person whether or not such Person
shall have assumed such indebtedness or obligations; (iv) obligations
of such Person in respect of letters of credit (other than performance
letters of credit, except to the extent backing an obligation of any
Person which would be Debt of such Person), acceptance facilities, or
drafts or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; and (v)
obligations of such Person under leases which are required to be
capitalized on a balance sheet of such Person in accordance with GAAP.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any corporate Subsidiary of the
Company designated for borrowing privileges under this Agreement
pursuant to Section 9.08.
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each mean lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose operations
are conducted primarily in the United States excluding any Subsidiary
whose assets consist primarily of the stock of Subsidiaries whose
operations are conducted outside the United States of America.
"Effective Date" has the meaning specified in Section 3.01.
<PAGE>
6
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$10,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having a net worth of at least $500,000,000, calculated in
accordance with GAAP; (v) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $10,000,000,000, so long
as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described
in this clause (v); and (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date
means the equivalent in Dollars of such Foreign Currency determined by
using the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London
<PAGE>
7
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person that
for purposes of Title IV of ERISA is a member of such Person's
controlled group, or under common control with such Person, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan of such Person or any of its ERISA
Affiliates unless the 30-day notice requirement with respect to such
event has been waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing sponsor, as
defined in Section 4001(a)(13) of ERISA, of a Plan of such Person or
any of its ERISA Affiliates, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan of such Person or any of its ERISA Affiliates; (c) the provision
by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan in a distress
termination pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of such Person
or any of its ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by such Person or any of
its ERISA Affiliates from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any
Plan of such Person or any of its ERISA Affiliates; (g) the adoption of
an amendment to a Plan of such Person or any of its ERISA Affiliates
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such
Plan.
"Escrow" means an escrow established with an independent
escrow agent pursuant to an escrow agreement reasonably satisfactory in
form and substance to the Person or Persons asserting the obligation of
one or more Borrowers to make a payment to it or them hereunder.
<PAGE>
8
"Eurocurrency Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto
and, with respect to any other Lender, the office of such Lender
specified as its "Eurocurrency Lending Office" in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on the applicable
Telerate Page as the London interbank offered rate for deposits in
Dollars or in the relevant Major Currency at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/32 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in Dollars or
in the relevant Major Currency are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage
for such Interest Period. If the Telerate Page is unavailable, the
Eurocurrency Rate for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Major Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including,
<PAGE>
9
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurocurrency Rate Advances or LIBO Rate Advances
is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.16(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advance" has the meaning specified in Section
2.03(a)(i), which Advance shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Major Currency or any Alternate
Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurocurrency Rate Advance and ending on the last day of the
period
<PAGE>
10
selected by the Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months and, if available to all Lenders, nine months, as the Borrower
requesting the Borrowing may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) such Borrower may not select any Interest Period
that ends after the scheduled Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means, collectively, (i) Initial Lenders, (ii) each
Assuming Lender that shall become a party hereto pursuant to Section
2.16 and (iii) each Eligible Assignee that shall become a party hereto
pursuant to Section 9.07(a), (b) and (c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the applicable Telerate Page as the
London interbank
<PAGE>
11
offered rate for deposits in Dollars or in the relevant Foreign
Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period or, if for any reason
such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/32 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars or in the
relevant Foreign Currency are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving
Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period. If the Telerate Page is unavailable, the LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance
denominated in Dollars or in any Foreign Currency and bearing interest
based on the LIBO Rate.
"Lien" means any lien, mortgage, pledge, security interest or
other charge or encumbrance of any kind.
"Local Rate Advance" means a Competitive Bid Advance
denominated in any Foreign Currency sourced from the jurisdiction of
issuance of such Foreign Currency and bearing interest at a fixed rate.
"Major Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of Japan, lawful currency of the
Republic of France and lawful currency of the European Economic and
Monetary Union.
"Majority Lenders" means at any time Lenders holding at least
51% of the then aggregate principal amount (based on the Equivalent in
Dollars at such time) of the Revolving Credit Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments.
"Material Adverse Change" means any material adverse change in
the financial condition or results of operations of the Company and its
Consolidated Subsidiaries taken as a whole.
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12
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrowers to perform their obligations under
this Agreement or any Note.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of June 4, 1999 among Honeywell Inc., the Company and Blossom
Acquisition Corp, a wholly owned Subsidiary of the Company.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan,
as defined in Section 4001(a)(3) of ERISA, to which such Person or any
of its ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and at least one Person other than such Person or any of its ERISA
Affiliates or (b) was so maintained and in respect of which such Person
or any of its ERISA Affiliates could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Tangible Assets of the Company and its Consolidated
Subsidiaries", as at any particular date of determination, means the
total amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible or renewable
at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangible assets, as set forth in
the most recent balance sheet of the Company and its Consolidated
Subsidiaries and computed in accordance with GAAP.
"Non-Consenting Lender" has the meaning specified in Section
2.16(b).
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
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13
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01(b).
"Payment Office" means, for any Foreign Currency, such office
of Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Process Agent" has the meaning specified in Section 9.13(a).
"Rating Condition" has the meaning specified in Section
2.05(c)(ii).
"Rating Condition Notice" has the meaning specified in Section
2.05(c)(ii).
"Reference Banks" means Citibank, Bank of America, N.A., The
Chase Manhattan Bank and Deutsche Bank AG.
"Register" has the meaning specified in Section 9.07(d).
"Restricted Property" means (a) any property of the Company
located within the United States of America that, in the opinion of the
Company's Board of Directors, is a principal manufacturing property or
(b) any shares of capital stock or Debt of any Subsidiary owning any
such property.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
<PAGE>
14
"Revolving Credit Note" means a promissory note of any
Borrower payable to the order of any Lender, delivered pursuant to a
request made under Section 2.17 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of such Borrower to
such Lender resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"Sale and Leaseback Transaction" means any arrangement with
any Person (other than the Company or a Subsidiary of the Company), or
to which any such Person is a party, providing for the leasing to the
Company or to a Subsidiary of the Company owning Restricted Property
for a period of more than three years of any Restricted Property that
has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, or to any other Person (other than the
Company or a Subsidiary of the Company) to which funds have been or are
to be advanced by such Person on the security of the leased property.
It is understood that arrangements pursuant to Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended, or any successor provision
having similar effect, are not included within this definition of "Sale
and Leaseback Transaction".
"Single Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and no Person other than such Person and its ERISA Affiliates or (b)
was so maintained and in respect of which such Person or any of its
ERISA Affiliates could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Telerate Page" means, as applicable, page 3740 or 3750 (or
any successor pages, respectively) of Telerate Service of Bridge
Information Services.
<PAGE>
15
"Termination Date" means the earlier of (a) November 30, 2000,
or such later date to which it may be extended pursuant to Section
2.16, and (b) the date of termination in whole of the Commitments
pursuant to Section 2.05(a) or Section 6.01 or, if all Lenders elect to
terminate their Commitments as provided therein, Section 2.05(d).
"Threatened" means, with respect to any action, suit,
investigation, litigation or proceeding, a written communication to the
Company or a Designated Subsidiary, as the case may be, expressing an
intention to immediately bring such action, suit, investigation,
litigation or proceeding.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed, and all financial computations
and determinations pursuant hereto shall be made, in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"); provided,
however, that, if any changes in accounting principles from those used in the
preparation of such financial statements have been required by the rules,
regulations, pronouncements or opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and have been adopted by the Company
with the agreement of its independent certified public accountants, the Lenders
agree to consider a request by the Company to amend this Agreement to take
account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to any Borrower
<PAGE>
16
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount (based in respect of any
Revolving Credit Advance denominated in a Major Currency on the Equivalent in
Dollars determined on the date of delivery of the applicable Notice of Revolving
Credit Borrowing), not to exceed at any time outstanding such Lender's
Commitment, provided that the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount
(based in respect of any Competitive Bid Advance denominated in a Foreign
Currency on the Equivalent in Dollars at such time) of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount not less than $10,000,000 (or the
Equivalent thereof in any Major Currency determined on the date of delivery of
the applicable Notice of Revolving Credit Borrowing) or an integral multiple of
$1,000,000 (or the Equivalent thereof in any Major Currency determined on the
date of delivery of the applicable Notice of Revolving Credit Borrowing) in
excess thereof and shall consist of Revolving Credit Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments; provided, however, that if there is no unused portion of the
Commitment of one or more Lenders at the time of any requested Revolving Credit
Borrowing such Borrowing shall consist of Revolving Credit Advances of the same
Type made on the same day by the Lender or Lenders who do then have an unused
portion of their Commitments ratably according to the unused portion of such
Commitments. Notwithstanding anything herein to the contrary, no Revolving
Credit Borrowing may be made in a Major Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Revolving Credit Advances denominated in Major
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Competitive Bid Advances denominated in Foreign Currencies, would
exceed $500,000,000. Within the limits of each Lender's Commitment, any Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
10:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in any Major
Currency, (y) 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars
or (z) 9:00 A.M. (New York City time) on the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by any Borrower to the Agent (and the Agent shall, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
immediately relay such notice to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit
<PAGE>
17
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, initial Interest Period and
currency for each such Revolving Credit Advance. Each Lender shall, before 11:00
A.M. (New York City time) on the date of such Revolving Credit Borrowing, in the
case of a Revolving Credit Borrowing consisting of Advances denominated in
Dollars, and before 11:00 A.M. (London time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in any Major Currency, make available for
the account of its Applicable Lending Office to the Agent at the applicable
Agent's account, in same day funds, such Lender's ratable portion (as determined
in accordance with Section 2.01) of such Revolving Credit Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower requesting the Revolving Credit Borrowing at the Agent's aforesaid
address or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, a Borrower may not select Eurocurrency Rate Advances for any
proposed Revolving Credit Borrowing if the obligation of the Lenders to make
Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.08 or
2.11.
(c) Each Notice of Revolving Credit Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower proposing such
Revolving Credit Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made
<PAGE>
18
such ratable portion available to the Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the case of such Borrower, the higher of (A) the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (B) the cost of funds incurred by the Agent in respect of
such amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in
the case of Advances denominated in Dollars or (B) the cost of funds incurred by
the Agent in respect of such amount in the case of Advances denominated in any
Major Currency. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may request Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring seven days prior to the Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount (based in respect of any Advance
denominated in a Foreign Currency on the Equivalent in Dollars on such Business
Day) of the Advances then outstanding shall not exceed the aggregate amount of
the Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction). Notwithstanding anything herein to the contrary, no Competitive Bid
Borrowing may be made in a Foreign Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Competitive Bid Advances denominated in Foreign
Currencies, together with the Equivalent in Dollars of the aggregate amount of
outstanding Revolving Credit Advances denominated in Major Currencies, would
exceed $500,000,000.
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and the Agent shall, in
the case of a Competitive Bid Borrowing not consisting of Fixed Rate
Advances or LIBO Rate Advances to be denominated in Dollars,
immediately notify the Sub-Agent), by telecopier or telex, a notice of
a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"),
in substantially the form of Exhibit B-2 hereto, specifying therein the
requested (A) date of such proposed Competitive Bid Borrowing, (B)
aggregate amount of such proposed Competitive Bid Borrowing, (C)
interest rate basis and day count convention to be offered by the
Lenders,
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19
(D) currency of such proposed Competitive Bid Borrowing, (E) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period of each Competitive Bid Advance to be made as part of
such Competitive Bid Borrowing, or in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances or Local Rate Advances,
maturity date for repayment of each Fixed Rate Advance or Local Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring five days
after the date of such Competitive Bid Borrowing or later than the
Termination Date), (F) interest payment date or dates relating thereto,
(G) location of such Borrower's account to which funds are to be
advanced, and (H) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
time) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in its Notice
of Competitive Bid Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum (each Advance comprising
any such Competitive Bid Borrowing being referred to herein as a "Fixed
Rate Advance") and that the Advances comprising such proposed
Competitive Bid Borrowing shall be denominated in Dollars, (x) 10:00
A.M. (New York City time) at least four Business Days prior to the date
of the proposed Competitive Bid Borrowing, if such Borrower shall
instead specify in its Notice of Competitive Bid Borrowing that the
Advances comprising such Competitive Bid Borrowing shall be LIBO Rate
Advances denominated in Dollars, (y) 3:00 P.M. (New York City time) at
least three Business Days prior to the date of the proposed Competitive
Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such proposed
Competitive Bid Borrowing shall be either Fixed Rate Advances
denominated in any Foreign Currency or Local Rate Advances denominated
in any Foreign Currency and (z) 3:00 P.M. (New York City time) at least
five Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in its Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances denominated in any Foreign
Currency. Each Notice of Competitive Bid Borrowing shall be irrevocable
and binding on such Borrower. Any Notice of Competitive Bid Borrowing
by a Designated Subsidiary shall be given to the Agent in accordance
with the preceding sentence through the Company on behalf of such
Designated Subsidiary. The Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from such Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower proposing the Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to such Borrower and to the
Sub-Agent, if applicable), (A) before 9:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
in Dollars, (B) before 10:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in Dollars, (C) before 10:00 A.M. (New York City time) on
the second Business Day prior to the date of such proposed Competitive
Bid Borrowing,
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20
in the case of a Competitive Bid Borrowing consisting of either Fixed
Rate Advances denominated in any Foreign Currency or Local Rate
Advances denominated in any Foreign Currency and (D) before 10:00 A.M.
(New York City time) four Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances denominated in any Foreign
Currency, of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts, or the Equivalent
thereof in Dollars, as the case may be, may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify
such Borrower of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given to the Agent,
by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent, before 10:00 A.M. (New
York City time) (and the Agent shall notify the Sub-Agent, if
applicable) on the date on which notice of such election is to be given
to the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part
of such Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Advance
shall, in turn, (A) before 10:30 A.M. (New York City time) on the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated
in Dollars, (B) before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in Dollars, (C) before 10:00 A.M. (New York City time) on
the Business Day prior to the date of such Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of either Fixed
Rate Advances denominated in any Foreign Currency or Local Rate
Advances denominated in any Foreign Currency and (D) before 10:00 A.M.
(New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances denominated in any Foreign
Currency, either:
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21
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent (and the Agent
shall give notice to the Sub-Agent, if applicable) of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to such Borrower by the
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Agent notice to that effect;
provided, however, that such Borrower shall not accept any
offer in excess of the requested bid amount for any maturity.
Such Borrower shall accept the offers made by any Lender or
Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that such Competitive Bid Borrowing is canceled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(v) If the Borrower proposing the Competitive Bid Borrowing
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
the Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 11:00 A.M. (New York City time), in the case of
Competitive Bid Advances to be denominated in Dollars or 11:00 A.M.
(London time), in the case of Competitive Bid Advances to be
denominated in any Foreign Currency, on the date of such Competitive
Bid Borrowing specified in the notice received from the Agent pursuant
to clause (A) of the preceding sentence or any later time
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22
when such Lender shall have received notice from the Agent pursuant to
clause (C) of the preceding sentence, make available for the account of
its Applicable Lending Office to the Agent (x) in the case of a
Competitive Bid Borrowing denominated in Dollars, at its address
referred to in Section 9.02, in same day funds, such Lender's portion
of such Competitive Bid Borrowing in Dollars, and (y) in the case of a
Competitive Bid Borrowing in a Foreign Currency, at the Payment Office
for such Foreign Currency as shall have been notified by the Agent to
the Lenders prior thereto, in same day funds, such Lender's portion of
such Competitive Bid Borrowing in such Foreign Currency. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to such Borrower's account at the location specified by
such Borrower in its Notice of Competitive Bid Borrowing. Promptly
after each Competitive Bid Borrowing the Agent will notify each Lender
of the amount of such Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that it accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount not less than $10,000,000 (or the Equivalent thereof in any Foreign
Currency, determined as of the time of the applicable Notice of Competitive Bid
Borrowing) or an integral multiple of $1,000,000 (or the Equivalent thereof in
any Foreign Currency, determined as of the time of the applicable Notice of
Competitive Bid Borrowing) in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower that has borrowed such Competitive Bid
Borrowing shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
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23
(d) Any Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the Competitive
Bid Note evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. Such Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance comprising such Competitive Bid Borrowing from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default under Section 6.01(a), such Borrower
shall pay interest on the amount of unpaid principal of and interest on each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 1999, and on the Termination Date.
<PAGE>
24
(b) Agent's Fees. The Company shall pay to the Agent for its
own account such fees, and at such times, as the Company and the Agent may
separately agree.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional Ratable Termination or Reduction. The Company shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in an aggregate amount
not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the sum of the
aggregate principal amount of the Competitive Bid Advances denominated in
Dollars then outstanding plus the Equivalent in Dollars (determined as of the
date of the notice of prepayment) of the aggregate principal amount of the
Competitive Bid Advances denominated in Foreign Currencies then outstanding. The
aggregate amount of the Commitments, once reduced as provided in this Section
2.05(a), may not be reinstated.
(b) Non-Ratable Termination by Assignment. The Company shall
have the right, upon at least ten Business Days' written notice to the Agent
(which shall then give prompt notice thereof to the relevant Lender), to require
any Lender to assign, pursuant to and in accordance with the provisions of
Section 9.07, all of its rights and obligations under this Agreement and under
the Notes to an Eligible Assignee selected by the Company; provided, however,
that (i) no Event of Default shall have occurred and be continuing at the time
of such request and at the time of such assignment; (ii) the assignee shall have
paid to the assigning Lender the aggregate principal amount of, and any interest
accrued and unpaid to the date of such assignment on, the Note or Notes of such
Lender; (iii) the Company shall have paid to the assigning Lender any and all
facility fees and other fees payable to such Lender and all other accrued and
unpaid amounts owing to such Lender under any provision of this Agreement
(including, but not limited to, any increased costs or other additional amounts
owing under Section 2.10 and any indemnification for Taxes under Section 2.13)
as of the effective date of such assignment; and (iv) if the assignee selected
by the Company is not an existing Lender, such assignee or the Company shall
have paid the processing and recordation fee required under Section 9.07(a) for
such assignment; provided further that the Company shall have no right to
replace more than three Lenders in any calendar year pursuant to this Section
2.05(b); and provided further that the assigning Lender's rights under Sections
2.10, 2.13 and 9.04, and its obligations under Section 8.05, shall survive such
assignment as to matters occurring prior to the date of assignment.
(c) Non-Ratable Reduction. (i) The Company shall have the
right, at any time other than during any Rating Condition, upon at least ten
Business Days' notice to a Lender (with a copy to the Agent), to terminate in
whole such Lender's Commitment (determined without giving effect to any
Competitive Bid Reduction). Such termination shall be effective, (i) with
respect to such Lender's unused Commitment, on the date set forth in such
notice, provided, however, that such date shall be no earlier than ten Business
Days after receipt of such notice and (ii) with respect to
<PAGE>
25
each Advance outstanding to such Lender, on the last day of the then current
Interest Period relating to such Advance; provided further, however, that such
termination shall not be effective, if, after giving effect to such termination,
the Company would, under this Section 2.05(c), reduce the Lenders' Commitments
in any calendar year by an amount in excess of the Commitments of any three
Lenders or $480,000,000, whichever is greater on the date of such termination.
Notwithstanding the preceding proviso, the Company may terminate in whole the
Commitment of any Lender in accordance with the terms and conditions set forth
in Section 2.05(b) or 2.16(b). Upon termination of a Lender's Commitment under
this Section 2.05(c), the Company will pay or cause to be paid all principal of,
and interest accrued to the date of such payment on, Advances owing to such
Lender and pay any facility fees or other fees payable to such Lender pursuant
to the provisions of Section 2.04, and all other amounts payable to such Lender
hereunder (including, but not limited to, any increased costs or other amounts
owing under Section 2.10 and any indemnification for Taxes under Section 2.13);
and upon such payments, the obligations of such Lender hereunder shall, by the
provisions hereof, be released and discharged; provided, however, that such
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations under
Section 8.05 shall survive such release and discharge as to matters occurring
prior to such date. The aggregate amount of the Commitments of the Lenders once
reduced pursuant to this Section 2.05(c) may not be reinstated.
(ii) For purposes of this Section 2.05(c) only, the term
"Rating Condition" shall mean a period commencing with notice (a "Rating
Condition Notice") by the Agent to the Company and the Lenders to the effect
that the Agent has been informed that the rating of the senior public Debt of
the Company is unsatisfactory under the standard set forth in the next sentence,
and ending with notice by the Agent to the Company and the Lenders to the effect
that such condition no longer exists. The Agent shall give a Rating Condition
Notice promptly upon receipt from the Company or any Lender of notice stating,
in effect, that both of S&P and Moody's (or any successor by merger or
consolidation to the business of either thereof), respectively, then rate the
senior public Debt of the Company lower than BBB- and Baa3. The Company agrees
to give notice to the Agent forthwith upon any change in a rating by either such
organization of the senior public Debt of the Company; the Agent shall have no
duty whatsoever to verify the accuracy of any such notice from the Company or
any Lender or to monitor independently the ratings of the senior public Debt of
the Company and no Lender shall have any duty to give any such notice. The Agent
shall give notice to the Lenders and the Company as to the termination of a
Rating Condition promptly upon receiving a notice from the Company to the Agent
(which notice the Agent shall promptly notify to the Lenders) stating that the
rating of the senior public Debt of the Company does not meet the standard set
forth in the second sentence of this clause (ii), and requesting that the Agent
notify the Lenders of the termination of the Rating Condition. The Rating
Condition shall terminate upon the giving of such notice by the Agent.
(d) Termination by a Lender. In the event that a Change of
Control occurs, each Lender may, by notice to the Company and the Agent given
not later than 50 calendar days after
<PAGE>
26
such Change of Control, terminate its Commitment, which Commitment shall be
terminated effective as of the later of (i) the date that is 60 calendar days
after such Change of Control or (ii) the end of the Interest Period for any
Advance outstanding at the time of such Change of Control or for any Advance
made pursuant to the next sentence of this Section 2.05(d). Upon the occurrence
of a Change of Control, each Borrower's right to make a Borrowing under this
Agreement shall be suspended for a period of 60 calendar days, except for
Advances having an interest period ending not later than 90 calendar days after
such Change of Control. A notice of termination pursuant to this Section 2.05(d)
shall not have the effect of accelerating any outstanding Advance of such Lender
and the Notes of such Lender.
(e) Mandatory Reduction. To the extent that the Company has
not on or prior to March 31, 2000 reduced the aggregate Commitments to
$1,000,000,000 or less, on March 31, 2000 the aggregate Commitments shall be
reduced to $1,000,000,000 and the Commitment of each Lender shall be reduced
ratably.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall repay to the Administrative Agent, for the ratable
account of the Lenders, on the Termination Date the aggregate principal amount
of all Revolving Credit Advances made to it outstanding on such date.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Termination
Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing by such Borrower to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurocurrency Rate for such
Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if
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27
such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on (i) the unpaid principal amount of each Revolving Credit Advance
owing by such Borrower to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
1% per annum above the rate per annum required to be paid on such Revolving
Credit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder by such Borrower that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 1% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurocurrency Rate and each LIBO Rate if the applicable Telerate
Page is unavailable. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Company and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Majority Lenders notify the Agent that (i) they are unable to obtain matching
deposits in the London interbank market at or about 11:00 A.M. (London time) on
the second Business Day before the making of a Borrowing in sufficient amounts
to fund their respective Revolving Credit Advances as part of such Borrowing
during its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Majority Lenders
of making, funding or maintaining their respective Eurocurrency Rate Advances
for such Interest Period, the Agent shall forthwith so notify each Borrower and
the Lenders, whereupon (A) the Borrower will, on the last day of the then
existing Interest Period therefor, (1) if such Eurocurrency Rate Advances are
denominated in Dollars, either (x) prepay such Advances or (y) Convert such
Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are
denominated in any Major Currency, either (x) prepay such Advances or (y)
redenominate such Advances into an Equivalent amount of Dollars and Convert such
Advances into Base Rate Advances, and (B) the obligation of the Lenders to make
Eurocurrency Rate Advances in the same currency as such Eurocurrency Rate
Advances
<PAGE>
28
shall be suspended until the Agent shall notify each Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit
Borrowing comprised of Eurocurrency Rate Advances, shall fail to select the
duration of the Interest Period for such Eurocurrency Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders
and such Advances will (to the extent such Eurocurrency Rate Advances remain
outstanding on such day) automatically, on the last day of the then existing
Interest Period therefor, (i) if such Eurocurrency Rate Advances are denominated
in Dollars, Convert into Base Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in any Major Currency, be redenominated into an
Equivalent amount of Dollars and be Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
(to the extent such Eurocurrency Rate Advance remains outstanding on such day)
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Major Currency, be redenominated into an Equivalent amount of
Dollars and Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make Eurocurrency Rate Advances shall be suspended.
(e) If the applicable Telerate Page is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO
Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will (to the extent such Eurocurrency Rate Advance remains
outstanding on such day) automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, be prepaid by the applicable
Borrower or be automatically Converted into a Base Rate Advance and (B)
if such Eurocurrency Rate Advance is denominated in any Major Currency,
be prepaid by the applicable Borrower or be automatically redenominated
into an Equivalent amount of Dollars and Converted into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
<PAGE>
29
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances shall be suspended until the Agent shall
notify the Borrowers and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
Optional Prepayments. Each Borrower may, upon notice to the Agent stating the
proposed date and aggregate principal amount of the prepayment, given not later
than 11:00 A.M. (New York City time) on the second Business Day prior to the
date of such proposed prepayment, in the case of Eurocurrency Rate Advances, and
not later than 11:00 A.M. (New York City time) on the day of such proposed
prepayment, in the case of Base Rate Advances, and, if such notice is given,
such Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or the Equivalent thereof in a Major Currency (determined on the
date notice of prepayment is given) or an integral multiple of $1,000,000 or the
Equivalent thereof in a Major Currency (determined on the date notice of
prepayment is given) in excess thereof and (y) in the event of any such
prepayment of a Eurocurrency Rate Advance other than on the last day of the
Interest Period therefor, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c). Each notice of
prepayment by a Designated Subsidiary shall be given to the Administrative Agent
through the Company.
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A)
the aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such date) of the aggregate principal amount of all Advances
denominated in Foreign Currencies then outstanding exceeds 103% of the aggregate
Commitments of the Lenders on such date, the Company and each other Borrower, if
any, shall thereupon promptly prepay the outstanding principal amount of any
Advances owing by such Borrower in an aggregate amount sufficient to reduce such
sum to an amount not to exceed 100% of the aggregate Commitments of the Lenders
on such date, together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date
other than the last day of an Interest Period or at its maturity, any additional
amounts which such Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall give prompt notice
of any prepayment required under this Section 2.09(b)(i) to the Borrowers and
the Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in Dollars
of the aggregate principal amount of all Eurocurrency Rate Advances denominated
in Major Currencies then outstanding plus (B) the Equivalent in Dollars of the
aggregate principal amount of all Competitive Bid Advances denominated in
Foreign Currencies then outstanding, shall exceed 110% of
<PAGE>
30
$500,000,000, the Company and each other Borrower shall prepay the outstanding
principal amount of any such Eurocurrency Rate Advances or any such LIBO Rate
Advances owing by such Borrower, on the last day of the Interest Periods
relating to such Advances, in an aggregate amount sufficient to reduce such sum
to an amount not to exceed $500,000,000, together with any interest accrued to
the date of such prepayment on the principal amounts prepaid. The Agent shall
give prompt notice of any prepayment required under this Section 2.09(b)(ii) to
the Borrowers and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances (excluding for purposes of this Section 2.10 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.13 shall govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower of such Advances shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to such Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to the Agent), the
Company shall pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable
pursuant to this Section 2.10 shall, upon the written request of the Company
delivered to such Lender and the Agent, assign, pursuant to and in accordance
with the provisions of Section 9.07, all of its rights and obligations
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under this Agreement and under the Notes to an Eligible Assignee selected by the
Company; provided, however, that (i) no Default shall have occurred and be
continuing at the time of such request and at the time of such assignment; (ii)
the assignee shall have paid to the assigning Lender the aggregate principal
amount of, and any interest accrued and unpaid to the date of such assignment
on, the Note or Notes of such Lender; (iii) the Company shall have paid to the
assigning Lender any and all facility fees and other fees payable to such Lender
and all other accrued and unpaid amounts owing to such Lender under any
provision of this Agreement (including, but not limited to, any increased costs
or other additional amounts owing under this Section 2.10, and any
indemnification for Taxes under Section 2.13) as of the effective date of such
assignment and (iv) if the assignee selected by the Company is not an existing
Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.07(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any Major
Currency or LIBO Rate Advances in Dollars or in any Foreign Currency or to fund
or maintain Eurocurrency Rate Advances in Dollars or in any Major Currency or
LIBO Rate Advances in Dollars or in any Foreign Currency hereunder, (a) each
such Eurocurrency Rate Advance or such LIBO Rate Advance, as the case may be,
will automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Foreign Currency, be redenominated into
an Equivalent amount of Dollars and Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the
case may be, and (b) the obligation of the Lenders to make such Eurocurrency
Rate Advances or such LIBO Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under any Notes, except with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in a Foreign Currency, not later than 11:00 A.M. (New York City time) on the day
when due in Dollars to the Agent at the applicable Agent's Account in same day
funds. Each Borrower shall make each payment hereunder and under any Notes with
respect to principal of, interest on, and other amounts relating to Advances
denominated in a Foreign Currency not later than 12:00 Noon (at the Payment
Office for such Foreign Currency) on the day when due in such Foreign Currency
to the Agent in same day funds by deposit of such funds to the
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applicable Agent's Account. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.05(b), 2.05(c), 2.10, 2.13, 2.16 or 9.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under any Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves. Upon any Assuming Lender becoming a Lender hereunder as a
result of the effectiveness of an extension of the Termination Date pursuant to
Section 2.16, and upon the Agent's receipt of such Lender's Assumption Agreement
and recording the information contained therein in the Register, from and after
the Increase Date or the Extension Date, as the case may be, the Agent shall
make all payments hereunder and under any Notes in respect of the interest
assumed thereby to the Assuming Lender.
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, all computations of interest based on the Eurocurrency
Rate or the Federal Funds Rate shall be made by the Agent on the basis of a year
of 360 days and all computations in respect of Competitive Bid Advances shall be
made by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
to be made in the next following calendar month, such payment shall be made on
the next preceding Business Day.
(d) Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed
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to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such payment
in full to the Agent, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at (i) the Federal Funds Rate in the
case of Advances denominated in Dollars or (ii) the cost of funds incurred by
the Agent in respect of such amount in the case of Advances denominated in
Foreign Currencies.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
(including the Company in its capacity as a guarantor under Article VII hereof)
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, net income
taxes imposed by the United States and taxes imposed on its overall net income,
and franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If any Borrower (including the Company in its capacity as a
guarantor under Article VII hereof) shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.13)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto; provided, however, that a Borrower shall not be obligated to
pay any amounts in respect of penalties, interest or expenses pursuant to this
paragraph that are payable solely as a result
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of (i) the failure on the part of the pertinent Lender or the Agent to pay over
those amounts received from the Borrowers under this clause (c) or (ii) the
gross negligence or willful misconduct on the part of the pertinent Lender or
the Agent. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor. Each
Lender agrees to provide reasonably prompt notice to the Agent, the Company and
any Borrower of any imposition of Taxes or Other Taxes against such Lender;
provided that failure to give such notice shall not affect such Lender's rights
to indemnification hereunder. Each Lender agrees that it will, promptly upon a
request by the Company or a Borrower having made an indemnification payment
hereunder, furnish to the Company or such Borrower, as the case may be, such
evidence as is reasonably available to such Lender as to the payment of the
relevant Taxes or Other Taxes, and that it will, if requested by the Company or
such Borrower, cooperate with the Company or such Borrower, as the case may be,
in its efforts to obtain a refund or similar relief in respect of such payment.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing payment thereof.
In the case of any payment hereunder or under the Notes by or on behalf of any
Borrower through an account or branch outside the United States or by or on
behalf of any Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as requested in writing by any Borrower (but only so
long as such Lender remains lawfully able to do so), shall provide the Agent and
each Borrower with two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
the Notes. In addition, each Lender further agrees to provide any Borrower with
any form or document as any Borrower may request which is required by any taxing
authority outside the United States in order to secure an exe