Conformed Copy
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ELAN CORPORATION, PLC
U.S. $450,000,000
9.56% Guaranteed Notes due June 28, 2004
GUARANTEE AGREEMENT
Dated as of June 28, 2000
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TABLE OF CONTENTS
Section Page
1. GUARANTEE.......................................................................................1
2. EXECUTION AND DELIVERY OF GUARANTEES............................................................3
3. SUBORDINATION...................................................................................3
3.1. Guarantees Subordinate to Senior Indebtedness..........................................3
3.2. Payment Over of Proceeds Upon Dissolution, Etc.........................................3
3.3. Guarantees Declared Due and Payable....................................................5
3.4. Default on Senior Indebtedness.........................................................5
3.5. Payment Permitted if No Default........................................................6
3.6. Subrogation to Rights of Holders of Senior Indebtedness................................7
3.7. Provisions Solely to Define Relative Rights............................................7
3.8. No Waiver of Subordination Provisions..................................................7
3.9. Reliance on Judicial Order.............................................................8
4. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.................................................8
4.1. Organization; Power and Authority......................................................8
4.2. Authorization, etc.....................................................................9
4.3. Disclosure.............................................................................9
4.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.......................9
4.5. Financial Statements..................................................................10
4.6. Compliance with Laws, Other Instruments, etc..........................................10
4.7. Governmental Authorizations, etc......................................................11
4.8. Litigation; Observance of Agreements, Statutes and Orders.............................11
4.9. Taxes; Foreign Taxes..................................................................11
4.10. Title to Property; Leases.............................................................12
4.11. Licenses, Permits, etc................................................................12
4.12. Compliance with ERISA.................................................................13
4.13. Private Offering by the Guarantor.....................................................14
4.14. Use of Proceeds; Margin Regulations...................................................14
4.15. Existing Indebtedness; Future Liens...................................................15
4.16. Foreign Assets Control Regulations, etc...............................................15
4.17. Status under Certain Statutes.........................................................15
4.18. Environmental Matters.................................................................15
5. INFORMATION AS TO THE GUARANTOR................................................................16
5.1. Financial and Business Information....................................................16
5.2. Officer's Certificate.................................................................18
5.3. Inspection............................................................................19
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6. AFFIRMATIVE COVENANTS..........................................................................20
6.1. Compliance with Law...................................................................20
6.2. Insurance.............................................................................20
6.3. Maintenance of Properties.............................................................20
6.4. Payment of Taxes and Claims...........................................................21
6.5. Corporate Existence, etc..............................................................21
6.6. Ownership of the Company..............................................................21
6.7. Minimum Net Worth.....................................................................21
7. NEGATIVE COVENANTS.............................................................................21
7.1. Transactions with Affiliates..........................................................22
7.2. Merger, Consolidation, etc............................................................22
7.3. Liens.................................................................................23
7.4. Limitations on Additional Indebtedness................................................24
7.5. Limitations on Sale of Assets.........................................................24
7.6 Limitations on Modification of Charter Documents......................................25
8. TAX INDEMNIFICATION............................................................................25
9. EXPENSES, ETC..................................................................................26
9.1. Transaction Expenses..................................................................26
9.2. Taxes.................................................................................27
9.3. Survival..............................................................................27
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...................................27
11. AMENDMENT AND WAIVER...........................................................................28
11.1. Requirements..........................................................................28
11.2. Solicitation of Holders of Notes......................................................28
11.3. Binding Effect, etc...................................................................28
11.4. Notes held by Guarantor, etc..........................................................29
12. NOTICES........................................................................................29
13. REPRODUCTION OF DOCUMENTS......................................................................29
14. CONFIDENTIAL INFORMATION.......................................................................30
15. JURISDICTION AND PROCESS.......................................................................31
16. WAIVER OF JURY TRIAL...........................................................................32
17. OBLIGATION TO MAKE PAYMENTS IN DOLLARS.........................................................32
18. MISCELLANEOUS..................................................................................33
18.1. Successors and Assigns................................................................33
18.2. Payments Due on Non-Business Days.....................................................33
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18.3. Severability..........................................................................33
18.4. Construction..........................................................................33
18.5. Counterparts..........................................................................33
18.6. Governing Law.........................................................................34
SCHEDULE A -- DEFINED TERMS
SCHEDULE 4.4(a) -- Subsidiaries and Ownership of Subsidiary Stock
SCHEDULE 4.5 -- Financial Statements
SCHEDULE 4.8 -- Certain Litigation
SCHEDULE 4.15 -- Existing Indebtedness/Liens
EXHIBIT 1-A -- Form of Guarantee
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ELAN CORPORATION, PLC
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▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
9.56% Guaranteed Notes due June 28, 2004
As of June 28, 2000
TO THE PURCHASERS WHOSE NAMES
APPEAR IN THE ACCEPTANCE
FORM AT THE END HEREOF:
Ladies and Gentlemen:
ELAN CORPORATION, PLC, a company incorporated under the laws of Ireland
(the "Guarantor", which term shall include any successor thereto that shall have
become such in the manner prescribed in Section 7.2), agrees with each of the
purchasers whose names appear in the acceptance form at the end hereof (each, a
"Purchaser" and, collectively, the "Purchasers") as follows:
1. GUARANTEE.
The Guarantor hereby fully, unconditionally and irrevocably guarantees on a
subordinated basis to each holder of a Note, the performance of all obligations
of the Company under the Note Purchase Agreement and the Notes. At the time any
payment is due by the Company under the Note Purchase Agreement or the Notes as
primary obligor and, in case of the failure of the Company or any successor
thereto punctually to pay any amounts due, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same shall become due and
payable, as if such payment were being made by the Company. Certain capitalized
terms used in this Guarantee Agreement are defined in Schedule A. Capitalized
terms used in this Guarantee Agreement but not otherwise defined shall have the
meaning set forth in the Note Purchase Agreement. References to a "Schedule" or
an "Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Guarantee Agreement.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional and absolute, irrespective of the identity of the Company, the
validity, regularity or enforceability of any such Note or the Note Purchase
Agreement, the absence of any action to enforce the same, the granting of any
waiver or consent by the holder of any such Note with respect to any provisions
thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of any other guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Guarantee Agreement will not be discharged except by complete
performance of the obligations contained in the Note Purchase Agreement, any
such Note and in this Guarantee Agreement.
This Guarantee Agreement is a guarantee of payment and not of collection
and the primary place of performance is New York, New York, United States of
America. If the holder of any Note is required by any court or otherwise to
return to the Company or the Guarantor, or any custodian, receiver, liquidator,
trustee, sequestrator or other similar official acting in relation to the
Company or the Guarantor, any amount paid to such holder in respect of a Note,
this Guarantee Agreement, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor further agrees, to the
fullest extent that it may lawfully do so, that, as between the Guarantor, on
the one hand, and the holders, on the other hand, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 12 of
the Note Purchase Agreement for the purposes of this Guarantee Agreement,
notwithstanding any stay, injunction or other prohibition extant under any
applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
For so long as any of the Notes are outstanding, the Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company that arises from the existence, payment, performance
or enforcement of the Guarantor's obligations under this Guarantee Agreement,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of any holder of any Note against the Company or any collateral
which any such holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to the Guarantor in violation of the preceding sentence at any
time prior to the payment in full of all obligations and all other amounts
payable under this Guarantee Agreement, such amount shall be deemed to have been
paid to the Guarantor for the benefit of, and held in trust for the benefit of,
any holder of any Note and shall forthwith be paid to such holder to be credited
and applied upon such guaranteed obligations, whether matured or unmatured, in
accordance with the terms of this Guarantee Agreement, the Note Purchase
Agreement and the Notes. The Guarantor acknowledges that the waiver set forth in
this Section 1 is knowingly made.
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2. EXECUTION AND DELIVERY OF GUARANTEES.
To evidence its Guarantee provided in Section 1, the Guarantor hereby
agrees to execute the Guarantees substantially in the form provided in Exhibit
A-1, which is a part of this Guarantee Agreement. Each such Guarantee shall be
executed by the Guarantor either (i) under its common seal, by two of its
Directors, or by one of its Directors and its Secretary or (ii) under seal
pursuant to a power of attorney, given by the Guarantor under its common seal,
that conforms with the laws of Ireland and New York.
The delivery of any Note, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantees endorsed thereon on behalf of the
Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section 1
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Guarantee.
3. SUBORDINATION.
3.1. Guarantees Subordinate to Senior Indebtedness.
The Guarantor covenants and agrees, and each holder of a Guarantee, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Section 3, the indebtedness represented
by the Guarantees and this Guarantee Agreement and the payment of all amounts
due under the Guarantees and this Guarantee Agreement is hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness of the Guarantor.
3.2. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Guarantor, in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, or to its creditors, or to its assets,
or
(b) any liquidation, dissolution or other winding up of the Guarantor,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Guarantor, or
(d) any other event as related to the Guarantor that would constitute
an Event of Default specified in Section 11(h) and (i) of the Note Purchase
Agreement
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then, and in any such event, the holders of Senior Indebtedness shall be
entitled to receive
(1) payment in full in cash of all amounts due or to become due on or
in respect of all Senior Indebtedness in cash or cash equivalents, or
provision shall be made for such payment, before the holders of the
Guarantees are entitled to receive any payment on account of the
Guarantees, and
(2) any payment or distribution of assets of the Guarantor, of any
kind or character, whether in cash, property or securities, by setoff or
otherwise, to which the holders would be entitled but for the provisions of
this Section 3, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other debt of the
Guarantor being subordinated to the payment of the Guarantees, and any such
payment or distribution shall be paid by the liquidating trustee or agent
or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
3.2, the holder of any Guarantee shall have received any payment or distribution
of assets of the Guarantor, of any kind or character, whether in cash, property
or securities, including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of the
Guarantor being subordinated to the payment of the Guarantees, before all Senior
Indebtedness is paid in full in cash or payment thereof provided for, and if
such fact shall, at or prior to the time of such payment or distribution, have
been made known to such holder, then, in such event, such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Guarantor for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full in cash or as payment thereof
is otherwise provided for after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Section 3 only, the words "cash, property or
securities" shall not be deemed to include shares of Capital Stock of the
Guarantor, as reorganized or readjusted, or securities of the Guarantor or any
other corporation provided for by a plan or reorganization or readjustment the
payment of which is subordinated, at least to the extent provided in this
Section 3 with respect to the Guarantees, to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
Senior Indebtedness is assumed by the new
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corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Guarantor with, or the merger of the Guarantor
into, another Person or the liquidation or dissolution of the Guarantor,
following the conveyance or transfer of its properties and assets substantially
as an entirety to another Person upon the terms and conditions set forth in
Section 7.2 shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Guarantor for the purposes of this Section 3.2 if the
Person formed by such consolidation or into which the Guarantor is merged or the
Person which acquires by conveyance or transfer such properties and assets of
the Guarantor substantially as an entirety, shall as part of such consolidation,
merger, conveyance or transfer, comply with the conditions set forth in Section
7.2.
3.3. Guarantees Declared Due and Payable.
In the event that any Notes are declared due and payable pursuant to
Section 12.1 of the Note Purchase Agreement, then and in such event the
Guarantor shall promptly, and in any event within ten Business Days of the
occurrence thereof, notify holders of Senior Indebtedness of such declaration.
The Guarantor may not pay the Guarantees until the earlier of (i) 120 or more
days have passed after such declaration occurs or (ii) the payment in full of
all Senior Indebtedness or as payment thereof is otherwise provided for and may
thereafter pay the Guarantees if this Guarantee Agreement permits the payment at
that time.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the holder of any Guarantee prohibited by the foregoing
provisions of this Section 3.3 and if such holder has knowledge that such
payment is prohibited at or prior to the time of such payment, then and in such
event such payment shall be paid over and delivered forthwith to the Guarantor
by or on behalf of the Person holding such payment for the benefit of the
holders of Senior Indebtedness.
3.4. Default on Senior Indebtedness.
The Guarantor may not make any payment in respect of the Guarantees if:
(1) a payment default on any Senior Indebtedness has occurred and is
continuing beyond any applicable grace period with respect thereto; or
(2) a default (other than a payment default referred to in the
preceding clause (1)) on any Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate the maturity
thereof and the Guarantor receives a notice of default thereof from any
Person who may give such notice pursuant to the instrument evidencing or
document governing such Senior
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Indebtedness.
If the Guarantor receives any such notice, then a similar notice received within
nine months thereafter relating to the same default on the same issue of Senior
Indebtedness shall not be effective for purposes of this Section 3.4.
The Guarantor may resume payment on the Guarantees if and when:
(a) the payment default referred to above is cured or waived as
provided or permitted in accordance with the terms of the applicable Senior
Indebtedness; or
(b) in the case of a default referred to in clause (2) of the
preceding paragraph, 179 days pass after the receipt by the Guarantor of
the notice described in clause (2) above; and
this Guarantee Agreement otherwise permits the payment at that time.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the holder of any Guarantee prohibited by the foregoing
provisions of this Section 3.4 and if such holder has knowledge that such
payment is prohibited, at or prior to the time of such payment, then and in such
event such payment shall be paid over and delivered forthwith to the Guarantor
by or on behalf of the Person holding such payment for the benefit of the
holders of the Senior Indebtedness.
The provisions of this Section 3.4 shall not apply to any payment with
respect to which Section 3.2 would be applicable.
3.5. Payment Permitted if No Default.
Nothing contained in this Section 3 or elsewhere in this Guarantee
Agreement or in any of the Guarantees shall prevent (a) the Guarantor, at any
time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Guarantor referred to in
Section 3.2 or under the conditions described in Section 3.3 or 3.4 from making
payments at any time in respect of the Guarantees if the holder of such
Guarantee did not, at the time of such application, have actual knowledge that
such payment would have been prohibited by the provisions of this Section 3 or
(b) the application by the holder of such Guarantee of any money deposited with
it hereunder in respect of the Guarantees or the retention of such payment by
the holders of the Guarantees, if, at the time of such application by the
holder, the holder did not have actual knowledge that such payment would have
been prohibited by the provisions of this Section 3.
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3.6. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to payment in full of all Senior Indebtedness to the extent and in
the manner set forth in this Section 3, the holders of the Guarantees shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Section 3 (equally
and ratably with the holders of all indebtedness of the Guarantor, which by its
express terms is subordinated to Indebtedness of Guarantor, to substantially the
same extent as the Guarantees are subordinated, and is entitled to like rights
of subrogation) to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property and securities applicable to
the Senior Indebtedness until the Guarantees shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holders of the
Guarantees would be entitled except for the provisions of this Section 3, and no
payments over pursuant to the provisions of this Section 3 to the holders of
Senior Indebtedness by holders of the Guarantees, shall, as among the Guarantor,
the creditors of the Guarantor (other than holders of Senior Indebtedness), and
the holders of the Guarantees, be deemed to be a payment or distribution by the
Guarantor, to or on account of the Senior Indebtedness.
3.7. Provisions Solely to Define Relative Rights.
The provisions of this Section 3 are and are intended solely for the
purpose of defining the relative rights of the holders of the Guarantees, on the
one hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Section 3 or elsewhere in this Guarantee Agreement or in the
Guarantees is intended to or shall (a) impair, as among the Guarantor, the
creditors of the Guarantor (other than holders of Senior Indebtedness) and the
holders of the Guarantees, the obligation of the Guarantor, which is absolute
and unconditional, to pay to the holders of the Guarantees the full amount of
the Guarantees in respect of the Guarantees and when the same shall become due
and payable in accordance with the terms of the Guarantees and this Guarantee
Agreement; or (b) affect the relative rights against the Guarantor of the
holders of the Guarantees and creditors of the Guarantor other than the holders
of Senior Indebtedness; or (c) prevent the holder of any Guarantee from
exercising all remedies otherwise permitted by applicable law upon default under
this Guarantee Agreement, subject to the rights, if any, under this Section 3 of
the holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to such holder.
3.8. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Guarantor, or by any act or failure to act by any such holder, or by any
non-compliance by the Guarantor, with the terms, provisions and covenants of
this Guarantee Agreement, regardless of any knowledge
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thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the holders of the Guarantees, without incurring
responsibility to the holders of the Guarantees and without impairing or
releasing the subordination provided in this Section 3 or the obligations
hereunder of the holders of the Guarantees to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew, increase or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Guarantor and any other Person.
3.9. Reliance on Judicial Order.
Upon any payment or distribution of assets of the Guarantor referred to in
this Section 3, the holders of the Guarantees shall be entitled to rely upon any
final, nonappealable order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
Custodian, receiver, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the holders of
Guarantees, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 3.
4. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to each Purchaser that:
4.1. Organization; Power and Authority.
The Guarantor is a corporation duly organized and validly existing under
the laws of Ireland, and is duly qualified as a foreign corporation and, if
applicable, is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Guarantor has the
corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver this Guarantee Agreement and the
Guarantees,
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and to perform the provisions hereof and thereof.
4.2. Authorization, etc.
This Guarantee Agreement and the Guarantees have been duly authorized by
all necessary corporate action on the part of the Guarantor, and this Guarantee
Agreement constitutes and, upon execution and delivery thereof, each Guarantee
will constitute, a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except, in each
case, as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3. Disclosure.
The Guarantor, through its agent, Banc of America Securities LLC, has
delivered to each Purchaser a copy of a Private Placement Memorandum, dated May
2000 and a copy of a Private Placement Memorandum Supplement dated June 26, 2000
(collectively, and together with the documents delivered therewith, the
"Memorandum"), relating to the transactions contemplated hereby and in the Note
Purchase Agreement. The Memorandum fairly describes, except with respect to the
Defined Portfolio, in all material respects, the general nature of the business
and principal properties of the Guarantor and its Subsidiaries. Except as
disclosed in this Guarantee Agreement, the Memorandum and the financial
statements listed in Schedule 4.5 of this Guarantee Agreement and Schedule 5.5
of the Note Purchase Agreement, taken as a whole, except with respect to the
Defined Portfolio, do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made. The
information relating to the Defined Portfolio included in the Memorandum is
accurate in all material respects. Except as disclosed in the Memorandum or in
the financial statements listed in Schedule 4.5 of this Guarantee Agreement and
Schedule 5.5 of the Note Purchase Agreement, since the date of the Memorandum
(with respect to the Company) and December 31, 1999 (with respect to the
Guarantor), there has been no change in the business, operations, affairs,
financial condition, prospects, assets or properties of the Company, or the
Guarantor and its Subsidiaries, taken as a whole, except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to either Obligor that could
reasonably be expected to have a Material Adverse Effect that has not been set
forth herein or in the Memorandum, or in the other documents, certificates and
writings delivered to the Purchasers by or on behalf of either Obligor
specifically for use in connection with the transactions contemplated hereby or
in the Note Purchase Agreement.
4.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 4.4(a) contains (except as noted therein) complete and correct
9
lists of (i) the Guarantor's Subsidiaries, showing, as to each such Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its outstanding Capital Stock or similar
equity interests owned by the Guarantor and each other Subsidiary, (ii) the
Guarantor's Affiliates (other than Subsidiaries), and (iii) the Guarantor's
directors and senior officers.
(b) All of the outstanding shares of Capital Stock or similar equity
interests of each Subsidiary shown in Schedule 4.4(a) as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Guarantor or another of its Subsidiaries free
and clear of any Lien (except as otherwise disclosed in Schedule 4.4(a)).
(c) Each Subsidiary identified in Schedule 4.4(a) is a corporation or other
legal entity duly organized, validly existing and, if applicable, in good
standing under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and is, if applicable,
in good standing in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be so qualified
or in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the properties
it purports to own or hold under lease and to transact the business it transacts
and proposes to transact.
(d) No Subsidiary of the Guarantor is a party to, or otherwise subject to
any legal restriction or any agreement (other than this Guarantee Agreement and
customary limitations imposed by corporate law statutes) restricting the ability
of such Subsidiary to pay out of profits dividends or make distributions to the
Guarantor or any of its Subsidiaries that owns outstanding shares of Capital
Stock or similar equity interests of such Subsidiary.
4.5. Financial Statements.
The Guarantor has delivered to each Purchaser copies of the financial
statements listed on Schedule 4.5. All of said financial statements (including
in each case the related schedules and notes) fairly present in all material
respects the consolidated financial position of the Guarantor and its
Subsidiaries as of the respective dates specified in such Schedule and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with U.S. GAAP
consistently applied throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
4.6. Compliance with Laws, Other Instruments, etc.
Except as would not, individually or in the aggregate, have a Material
Adverse Effect, the execution, delivery and performance by the Guarantor of this
Guarantee Agreement and the Guarantees will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien
in respect of any property of the
10
Guarantor or any of its Subsidiaries under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Guarantor or any of its
Subsidiaries is bound or by which the Guarantor or any of its Subsidiaries or
any of their respective properties may be bound or affected, (ii) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Guarantor or any of its Subsidiaries or (iii)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Guarantor or any of its Subsidiaries.
4.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Guarantor of this Guarantee Agreement
or the Guarantees (including, without limitation, any thereof required in
connection with the obtaining of Dollars to make payments under this Guarantee
Agreement and the Guarantees and the payment of such Dollars to Persons resident
in the United States of America) except for such consents, approvals and
authorizations and registrations, filings and declarations as have already been
obtained. It is not necessary to ensure the legality, validity, enforceability
or admissibility into evidence in Ireland or Bermuda of this Guarantee Agreement
or the Guarantees that any thereof or any other document be filed, recorded or
enrolled with any Governmental Authority, or that any such agreement or document
be stamped with any stamp, registration or similar transaction tax.
4.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 4.8, there are no actions, suits or
proceedings pending or, to the knowledge of the Guarantor, threatened against or
affecting the Guarantor or any of its Subsidiaries or any property of the
Guarantor or any of its Subsidiaries in any court or before any arbitrator of
any kind or before or by any Governmental Authority that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) Neither of the Guarantor nor any of its Subsidiaries is in default
under any term of any agreement or instrument to which it is a party or by which
it is bound, or any order, judgment, decree or ruling of any court, arbitrator
or Governmental Authority or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation applicable Environmental Laws)
of any Governmental Authority, which default or violation, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
11
4.9. Taxes; Foreign Taxes.
(a) The Guarantor and each of its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (i) the amount
of which is not, individually or in the aggregate, Material or (ii) the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which the Guarantor or any of its
Subsidiaries, as the case may be, has established adequate reserves in
accordance with U.S. GAAP. The Guarantor knows of no basis for any other tax or
assessment that could reasonably be expected to have a Material Adverse Effect.
The charges, accruals and reserves on the books of the Guarantor and its
Subsidiaries in respect of taxes for all fiscal periods are adequate in all
material respects.
(b) No liability for any tax (whether income, documentary, sales, stamp,
registration, issue, capital, property, excise or otherwise), duty, levy,
impost, fee, charge or withholding (each a "Tax" and collectively "Taxes"),
directly or indirectly, imposed, assessed, levied or collected by or for the
account of any Governmental Authority of or in Ireland or any political
subdivision thereof or therein (an "Applicable Taxing Authority") will be
incurred by the Guarantor or any holder of a Note as a result of the execution
or delivery of this Guarantee Agreement or the Guarantees and, based on present
law, no deduction or withholding in respect of Taxes imposed by or for the
account of any Applicable Taxing Authority or any jurisdiction (other than the
United States of America) by or through which payments with respect to the
Guarantees are made by the Guarantor is required to be made from any payment by
the Guarantor under this Guarantee Agreement and the Guarantees except for any
such withholding or deduction arising out of the conditions described in the
proviso to Section 8(a).
4.10. Title to Property; Leases.
The Guarantor and each of its Subsidiaries have good and sufficient title
to their respective properties that, individually or in the aggregate, are
Material, in each case free and clear of Liens prohibited by this Guarantee
Agreement. All leases that the Guarantor or any of its Subsidiaries is party to
as lessee and that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
4.11. Licenses, Permits, etc.
Except as disclosed in Schedule 4.8 and except as would not have a Material
Adverse Effect:
(a) the Guarantor and each of its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto without known conflict with the
rights of others;
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(b) to the best knowledge of the Guarantor, no product of the Guarantor or
any of its Subsidiaries infringes in any respect any license, permit, franchise,
authorization, patent, copyright, service ▇▇▇▇, trademark, trade name or other
right owned by any other Person; and
(c) to the best knowledge of the Guarantor, there is no violation by any
Person of any right of the Guarantor or any of its Subsidiaries with respect to
any patent, copyright, service ▇▇▇▇, trademark, trade name or other right owned
or used by the Guarantor or any of its Subsidiaries.
4.12. Compliance with ERISA.
(a) The Guarantor and each ERISA Affiliate have operated and administered
each Plan in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. Neither of the Guarantor nor any ERISA
Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit plans
(as defined in section 3 of ERISA), and no event, transaction or condition has
occurred or exists that could reasonably be expected to result in the incurrence
of any such liability by the Guarantor or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets of the
Guarantor or any ERISA Affiliate, in either case pursuant to Title I or IV of
ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities by more than U.S.$2,000,000 in the case of
any single Plan and by more than U.S.$2,000,000 in the aggregate for all Plans.
The term "benefit liabilities" has the meaning specified in section 4001 of
ERISA and the terms "current value" and "present value" have the meaning
specified in Section 3 of ERISA.
(c) The Guarantor and each ERISA Affiliate have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation (determined as of the
last day of the Guarantor's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Guarantor and its Subsidiaries is not Material.
13
(e) The execution and delivery of this Guarantee Agreement and the
Guarantees hereunder will not involve any transaction that is subject to the
prohibitions of section 406(a) of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation
by the Guarantor in the first sentence of this Section 4.12(e) is made in
reliance upon and subject to the accuracy of the Purchasers' representation in
Section 6.2 of the Note Purchase Agreement as to the sources of the funds used
to pay the purchase price of the Notes to be purchased by the Purchasers.
(f) Each Foreign Pension Plan has been maintained in substantial compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and court orders and has been maintained in good
standing with applicable regulatory authorities, except for such instances of
noncompliance which have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. For purposes of this paragraph, "Foreign
Pension Plan" means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside
the United States of America by the Guarantor or any of its Subsidiaries
primarily for the benefit of employees residing outside the United States of
America of the Guarantor or such Subsidiary which plan, fund or other similar
program provides for retirement income for such employees, results in a deferral
of income for such employees in contemplation of retirement or provides for
payments to be made to such employees upon termination of employment, and which
plan is not subject to ERISA or the Code.
4.13. Private Offering by the Guarantor.
Neither the Guarantor nor anyone acting on its behalf has offered the Notes
or the Guarantees or any similar securities for sale to, or solicited any offer
to buy any of the same from, or otherwise approached or negotiated in respect
thereof with, any person other than the Purchasers and not more than 27 other
Qualified Purchasers, each of which has been offered the Notes at a private sale
for investment. Neither the Guarantor nor anyone acting on its behalf has taken,
or will take, any action that would subject the issuance or sale of the Notes or
the Guarantees to the registration requirements of Section 5 of the Securities
Act.
4.14. Use of Proceeds; Margin Regulations.
The Guarantor shall cause the Company to apply the proceeds of the sale of
the Notes as set forth in Section 9.7 of the Note Purchase Agreement. No part of
the proceeds from the sale of the Notes under the Note Purchase Agreement will
be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
United States Federal Reserve System (12 CFR 221), or for the purpose of buying
or carrying or trading in any securities under such circumstances as to involve
the Guarantor in a violation of Regulation X of said Board (12 CFR 224) or to
involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220). The Guarantor does not own or have any present intention of acquiring
any margin stock. As used in this Section, the terms "margin stock" and
14
"purpose of buying or carrying" shall have the meanings assigned to them in said
Regulation U.
4.15. Existing Indebtedness; Future Liens.
(a) Except as described therein, Schedule 4.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Guarantor and its
Subsidiaries as of June 28, 2000, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment payments or
maturities of the Indebtedness of the Guarantor or its Subsidiaries. Neither the
Guarantor nor any of its Subsidiaries is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any
Indebtedness of the Guarantor or any of its Subsidiaries and no event or
condition exists with respect to any Indebtedness of the Guarantor or any of its
Subsidiaries that would permit (or that with notice or the lapse of time, or
both, would permit) one or more Persons to cause such Indebtedness to become due
and payable before its stated maturity or before its regularly scheduled dates
of payment.
(b) Except as disclosed in Schedule 4.15, neither the Guarantor nor any of
its Subsidiaries has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted by Section
7.3.
4.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder with the benefit of
the Guarantees of the Guarantor nor the Company's use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, the International
Emergency Economic Powers Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating
thereto.
4.17. Status under Certain Statutes.
Neither the Guarantor nor any of its Subsidiaries is subject to regulation
under the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Interstate Commerce Act, as amended, or the
Federal Power Act, as amended.
4.18. Environmental Matters.
Neither the Guarantor nor any of its Subsidiaries has knowledge of any
claim or has received any written notice of any claim or proceeding raising any
claim against the Guarantor or any of its Subsidiaries or any of their
respective real properties or other assets now or formerly owned, leased or
operated by any of them, alleging any
15
liability under or violation of any applicable Environmental Laws, except, in
each case, such as could not reasonably be expected to result in a Material
Adverse Effect. Except as otherwise disclosed to the Purchasers in writing,
(a) neither the Guarantor nor any of its Subsidiaries has knowledge of
any facts which would give rise to any claim, public or private, of
violation of applicable Environmental Laws by any of them or damage to the
environment emanating from, occurring on or in any way related to real
properties or to other assets now or formerly owned, leased or operated by
any of them, except, in each case, such as could not reasonably be expected
to result in a Material Adverse Effect;
(b) to the knowledge of the Guarantor, neither the Guarantor nor any
of its Subsidiaries has stored any Hazardous Materials on real properties
now or formerly owned, leased or operated by any of them or disposed of any
Hazardous Materials in violation of any applicable Environmental Laws in
each case in any manner that could reasonably be expected to result in a
Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Guarantor or any of its Subsidiaries are in compliance with
applicable Environmental Laws, except where failure to comply could not
reasonably be expected to result in a Material Adverse Effect.
5. INFORMATION AS TO THE GUARANTOR.
5.1. Financial and Business Information.
The Guarantor shall deliver to each holder of Notes:
(a) Annual Statements -- to the extent not otherwise provided pursuant
to paragraph (b) of this Section 5.1 below, within 180 days after the end
of each fiscal year of the Guarantor, duplicate copies of,
(i) a consolidated balance sheet of the Guarantor and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income and changes in financial
position of the Guarantor and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with U.S.
GAAP, and accompanied by
(A) an opinion thereon of independent chartered accountants
of recognized international standing, which opinion shall state
that such financial statements present fairly, in all material
respects, the financial
16
position of the companies being reported upon and their results
of operations and changes in financial position and have been
prepared in conformity with U.S. GAAP, and that the examination
of such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion in the circumstances; and
(B) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making
their audit, they have become aware of any condition or event
that then constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then exists,
specifying the nature and period of the existence thereof (it
being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in accordance
with generally accepted auditing standards or did not make such
an audit); provided that so long as the Guarantor uses its best
efforts to cause such certificate to be delivered, any failure of
such accountants to deliver such certificate shall not constitute
a violation or breach of this clause (B);
(b) Information -- within 15 days after their becoming available, one
copy of (i) each document or report sent or required to be sent under Irish
or United States law by the Guarantor or any of its Subsidiaries to public
security holders generally (including without limitation the semi-annual
financial statements of the Guarantor which the Guarantor provides to its
security holders pursuant to the rules of the Irish Stock Exchange), (ii)
all material press releases (including in any event any press release which
includes interim financial statements of the Guarantor) made available by
the Guarantor or any of its Subsidiaries to the public and (iii) any Annual
Report on Form 20-F as filed with the SEC.
(c) Notice of Default or Event of Default -- within five days after a
Responsible Officer of the Guarantor becomes aware of the existence of any
Default or Event of Default or that any Person has given any notice or
taken any action with respect to a claimed Default or Event of Default or
that any Person has given any notice or taken any action with respect to a
claimed default of the type referred to in Section 11(e) or (f) of the Note
Purchase Agreement, a written notice specifying the nature and period of
existence thereof and what action the Guarantor is taking or proposes to
take with respect thereto;
(d) ERISA Matters -- within 30 days after a Responsible Officer of the
Guarantor becomes aware of any of the following, a written notice setting
forth the nature thereof and the action, if any, that the Guarantor or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
17
section 4043(b) of ERISA and the regulations thereunder, for which
notice thereof has not been waived pursuant to such regulations as in
effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Guarantor or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Guarantor or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, or in
the imposition of any Lien on any of the rights, properties or assets
of the Guarantor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse
Effect;
(e) Notices from Governmental Authority -- promptly, and in any event
within 30 days from the Guarantor's determination that the matters referred
to in such notice could reasonably be expected to have a Material Adverse
Effect, copies of any notice to the Guarantor or any of its Subsidiaries
from any Governmental Authority relating to any order, ruling, statute or
other law or regulation that could reasonably be expected to have a
Material Adverse Effect; and
(f) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Guarantor or any of its
Subsidiaries or relating to the ability of the Guarantor to perform its
obligations hereunder and under the Notes and the Guarantees as from time
to time may be reasonably requested by any such holder of Notes.
5.2. Officer's Certificate.
Each set of annual reports delivered to a holder of Notes pursuant to
Section 5.1(b)(iii) hereof (or, if applicable, each set of financial statements
delivered pursuant to Section 5.1(a) hereof) shall be accompanied by, and within
90 days after the end of each of the first three fiscal quarterly periods in
each fiscal year the Guarantor shall deliver to each holder of Notes, a
certificate of a Senior Financial Officer of the Guarantor setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Guarantor was in
compliance with the requirements of Section 6.7 and Section 7.1 through
Section 7.5 hereof,
18
inclusive, during the quarterly or annual period covered by the certificate
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and of the Note Purchase Agreement and has made, or
caused to be made, under his or her supervision, a review of the
transactions and conditions of the Guarantor and its Subsidiaries from the
beginning of the quarterly or annual period covered by the reports then
being furnished to the date of the certificate and that such review shall
not have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation, any
such event or condition resulting from the failure of the Guarantor or any
of its Subsidiaries to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Guarantor shall
have taken or proposes to take with respect thereto.
5.3. Inspection.
The Guarantor shall permit the representatives of each holder of at least
U.S.$1,000,000 aggregate principal amount of Notes:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the
Guarantor, to visit the principal executive office of the Guarantor, to
discuss the affairs, finances and accounts of the Guarantor and its
Subsidiaries with the Guarantor's officers, and its independent chartered
accountants, and (with the consent of the Guarantor, which consent will not
be unreasonably withheld) to visit the other offices and properties of the
Guarantor and each of its Subsidiaries, all at such reasonable times as may
be reasonably requested in writing, provided that each holder will be
permitted such visits and discussions no more than once every 18 months;
and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Guarantor, to visit and inspect any of the offices or
properties of the Guarantor or any of its Subsidiaries, to examine all
their respective books of account, records, reports and other papers, to
make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and
independent chartered accountants (and by this provision the Guarantor
authorizes said accountants to discuss the affairs, finances and accounts
of the Guarantor and its Subsidiaries), all at such times and as often as
may be requested;
provided that this Section 5.3 shall not apply to any Person that in the
reasonable judgment of the Guarantor is a competitor of the Guarantor or any of
its Subsidiaries or has commercial activities adverse to the commercial
activities of the Guarantor or any of its
19
Subsidiaries unrelated to providing finance or holding of the Notes; provided,
further, that no (i) initial Purchaser, (ii) affiliate or Subsidiary of an
initial Purchaser, (iii) account managed by any of the foregoing, (iv) bank, (v)
insurance company or (vi) Deemed Non-Competitor shall be deemed to be a
competitor or to have commercial activities adverse to the Guarantor.
6. AFFIRMATIVE COVENANTS.
The Guarantor covenants that so long as any of the Notes are outstanding:
6.1. Compliance with Law.
The Guarantor will and will cause each of its Subsidiaries to comply with
all laws, ordinances or governmental rules or regulations to which each of them
is subject, including, without limitation, applicable Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.2. Insurance.
The Guarantor will and will cause each of its Subsidiaries to maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
6.3. Maintenance of Properties.
The Guarantor will and will cause each of its Subsidiaries to maintain and
keep, or cause to be maintained and kept, their respective properties in good
repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all
times; provided that this Section 6.3 shall not prevent the Guarantor or any of
its Subsidiaries from discontinuing the operation and the maintenance of any of
its properties if such discontinuance is desirable in the conduct of its
business and the Guarantor has concluded that such discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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6.4. Payment of Taxes and Claims.
The Guarantor will and will cause each of its Subsidiaries to file all tax
returns required to be filed in any jurisdiction and to pay and discharge all
taxes shown to be due and payable on such returns and all other taxes,
assessments, governmental charges, or levies imposed on them or any of their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Guarantor or any of its
Subsidiaries; provided that neither the Guarantor nor any of its Subsidiaries
need pay any such tax or assessment or claims if (i) the amount, applicability
or validity thereof is contested by the Guarantor or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the Guarantor or such
Subsidiary has established adequate reserves therefor in accordance with U.S.
GAAP on the books of the Guarantor or such Subsidiary or (ii) the nonpayment of
all such taxes, assessments and claims in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
6.5. Corporate Existence, etc.
The Guarantor will at all times preserve and keep in full force and effect
its corporate existence, and the Guarantor will at all times preserve and keep
in full force and effect the corporate existence of each of its Subsidiaries and
all rights and franchises of the Guarantor and its Subsidiaries unless, in the
good faith judgment of the Guarantor, the termination of or failure to preserve
and keep in full force and effect the corporate existence of any of its
Subsidiaries (other than the Company), or any such right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
6.6. Ownership of the Company.
The Guarantor shall at all times own, directly or indirectly, 100% of the
Capital Stock of the Company free and clear of any Lien except for Liens created
under the Stock Pledge Agreement (excluding directors' qualifying shares
constituting in the aggregate less than 1% of the total amount of such Capital
Stock) and the holder of Capital Stock of the Company shall at all times be a
Qualified Purchaser.
6.7. Minimum Net Worth.
The Guarantor will, at the end of each fiscal quarter, maintain a
Consolidated Adjusted Net Worth greater than or equal to the sum of (x) U.S.
$1,000,000,000 plus (y) if positive, 35% of Consolidated Adjusted Net Income for
the period beginning January 1, 2000 and ending on the last day of such fiscal
quarter.
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7. NEGATIVE COVENANTS.
The Guarantor covenants that so long as any of the Notes are outstanding:
7.1. Transactions with Affiliates.
The Guarantor will not, and will not permit any of its Subsidiaries to,
enter into directly or indirectly any transaction or group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate,
except (i) for transactions between or among the Guarantor and its Eighty
Percent Subsidiaries, (ii) in the ordinary course and pursuant to the reasonable
requirements of the Guarantor's or any of its Subsidiaries' business and upon
terms no less favorable to the Guarantor or any of its Subsidiaries than would
be obtainable in a comparable arm's-length transaction with a Person not an
Affiliate as determined by the Board of Directors of the Guarantor and (iii) any
payments or transactions pursuant to each of the Asset Transfer Agreement and
the Services Agreement, as in effect on the date of Closing, or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the date of
Closing.
7.2. Merger, Consolidation, etc.
The Guarantor will not consolidate with or merge with or into any other
Person or sell, convey, transfer, lease or otherwise dispose of (or cause or
permit any Subsidiary of the Guarantor to sell, convey, transfer, lease or
otherwise dispose of) all or substantially all of the Guarantor's properties and
assets (determined on a consolidated basis for the Guarantor and its
Subsidiaries) in a single transaction or series of related transactions to any
Person unless:
(a) either (i) the Guarantor shall be the continuing corporation or
(ii) the Person (if other than the Guarantor) (the "Surviving Entity")
formed by such consolidation or into which the Guarantor is merged or the
Person that acquires by sale, conveyance, transfer or other disposition, or
that leases, the properties and assets of the Guarantor, as the case may
be, substantially as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia, Canada,
Switzerland, Japan, any AAA Rated Country or any European Union Country and
(y) shall expressly assume the due and punctual payment of all amounts due
under the Guarantee Agreement and the Guarantee and the performance or
observance of every covenant in the Guarantee Agreement;
(b) immediately after giving effect to such transaction, (i) no
Default or Event of Default shall have occurred and be continuing and (ii)
the Guarantor or the Surviving Entity, as the case may be, shall be
entitled to incur $1.00 of additional Indebtedness without causing a
Default or Event of Default; and
22
(c) the Guarantor shall have delivered to the holders of the Notes a
certificate of a Responsible Officer of the Guarantor and an opinion of
legal counsel to the Guarantor, each stating that such consolidation,
merger, sale, conveyance, transfer, lease or other disposition and such
assumption of obligations, if applicable, comply with this Section 7.2 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
No such sale, conveyance, transfer, lease or other disposition of substantially
all of the properties and assets of the Guarantor or any Subsidiary shall have
the effect of releasing the Guarantor, or any successor corporation that shall
theretofore have become such in the manner prescribed in this Section 7.2 from
its liability under this Guarantee Agreement or the Guarantees.
7.3. Liens.
The Guarantor will not, and will not permit any of its Subsidiaries to,
create, assume, incur or suffer to exist any Lien upon or with respect to any
property or assets, whether now owned or hereafter acquired, of the Guarantor or
any of its Subsidiaries, unless the Notes are secured equally and ratably with
any and all other obligations secured by such Lien, except:
(a) Liens for taxes, assessments or governmental charges or levies,
either not yet due and payable or to the extent that nonpayment thereof is
permitted by the proviso to Section 6.4;
(b) Liens created by or resulting from any litigation or legal
proceeding which is effectively stayed while the underlying claims are
being contested in good faith by appropriate proceedings and with respect
to which the Guarantor or such Subsidiary has established adequate reserves
on its books in accordance with U.S. GAAP;
(c) Liens incidental to the normal conduct of the business of the
Guarantor or any of its Subsidiaries or the ownership of their properties
and which are not incurred in connection with the incurrence of
Indebtedness and which do not in the aggregate materially impair the use of
such property in the operation of the business of the Guarantor and its
Subsidiaries taken as a whole, or the value of such property for the
purpose of such business;
(d) Liens securing Indebtedness of the Guarantor or any of its
Subsidiaries outstanding on the date hereof as specified in Schedule 4.15
and any extension, renewal or replacement of any such Lien, provided that
the principal amount of Indebtedness secured thereby immediately before
giving effect to such extension, renewal or replacement is not increased
and such Lien is not extended to any other property;
(e) Liens securing Indebtedness owing by a Subsidiary of the Guarantor
23
to the Guarantor or any other Subsidiaries of the Guarantor;
(f) Liens (i) in respect of property acquired, constructed or improved
by the Guarantor or any of its Subsidiaries after the date hereof, or in
rights relating to such property, which Liens are created at the time of
acquisition or completion of construction or improvement of such property
or within 180 days thereafter, to secure Indebtedness assumed or incurred
to finance all or any part of the purchase price of the acquisition or cost
of construction or improvement of such property, (ii) on property at the
time of the acquisition thereof by the Guarantor or any of its
Subsidiaries, whether or not the Indebtedness secured thereby is assumed by
the Guarantor or such Subsidiary, and (iii) on property of a Person at the
time such Person becomes a Subsidiary of the Guarantor, or the Guarantor or
any of its Subsidiaries acquires or leases the properties of such Person as
an entirety or substantially as an entirety, or such Person merges into or
consolidates with the Guarantor or any of its Subsidiaries (and not
incurred in anticipation thereof), provided that in any such case the
aggregate principal amount of Indebtedness secured by any such Lien in
respect of any such property shall not exceed the fair market value of such
property (or rights relating thereto) and no such Lien shall extend to or
cover any other property of the Guarantor or such Subsidiary;
(g) Liens securing Senior Indebtedness; and
(h) Liens in respect of assets of any Subsidiary of the Guarantor.
7.4. Limitations on Additional Indebtedness.
The Guarantor will not, and will not permit any of its Subsidiaries to,
incur any additional Indebtedness, unless, at the time of incurrence thereof and
after giving effect thereto and to the application of proceeds therefrom, the
ratio, expressed as a percentage, of (i) Senior Indebtedness to Annualized
EBITDA does not exceed 225% and (ii) Consolidated Adjusted Indebtedness to
Consolidated Total Capitalization does not exceed 60%.
7.5. Limitations on Sale of Assets.
The Guarantor will not, and will not permit any of its Subsidiaries to:
(a) sell, convey, transfer, lease or otherwise dispose of any assets
(other than in the ordinary course of business) in any one fiscal year
which represent in excess of 15% of Consolidated Total Assets determined as
of the beginning of such fiscal year, and
(b) sell, convey, transfer, lease or otherwise dispose of any assets
(other than in the ordinary course of business) that in the aggregate, from
the date of Closing to the date of determination, is in excess of 30% of
Consolidated Total
24
Assets determined as of the end of the immediately preceding fiscal quarter
of the disposition thereof;
provided that in calculating the amount of assets so disposed for purposes of
this Section 7.5 there shall be excluded (a) those assets so disposed from which
the net proceeds are applied solely, within 12 months after receipt thereof,
either (i) for acquiring or committing to acquire assets related to the
businesses of the Guarantor and its Subsidiaries or businesses reasonably
related thereto or (ii) for investing pursuant to the Investment Policy and (b)
assets transferred to any Eighty Percent Subsidiary of the Guarantor.
7.6 Limitations on Modification of Charter Documents.
The Guarantor will not cause or permit any amendment to be made to the
Memorandum of Association of the Company or the Bye-Laws of the Company without
the prior written consent by the Required Holders.
8. TAX INDEMNIFICATION.
(a) Any and all payments under this Guarantee Agreement or the Guarantees
to or for the account of any holder of a Note shall be made free and clear of,
and without deduction or withholding for or on account of, any Tax, except to
the extent such deduction or withholding is required by law. If any Tax is
required by law to be deducted or withheld from any such payments by the
Guarantor, the Guarantor will make such deductions or withholding and pay to the
relevant taxing authority the full amount deducted or withheld before penalties
attach thereto or interest accrues thereon. In the event of the imposition by or
for the account of any Applicable Taxing Authority or of any Governmental
Authority of any jurisdiction in which the Guarantor resides for tax purposes or
any jurisdiction from or through which the Guarantor is making any payment in
respect of any Guarantee, other than any Governmental Authority of or in the
United States of America or any political subdivision thereof or therein, of any
Tax upon or with respect to any payments in respect of any Guarantee, whether by
withholding or otherwise, the Guarantor hereby agrees to pay forthwith from time
to time in connection with each payment on the Guarantees, as the case may be,
to each holder of a Note such amounts as shall be required so that every payment
received by such holder in respect of the Guarantees and every payment received
by such holder under this Guarantee Agreement will not, after such withholding
or deduction or other payment for or on account of such Tax and any interest or
penalties relating thereto, be less than the amount stated to be due and payable
to such holder in respect of such Guarantee or under this Guarantee Agreement
before the assessment of such Tax; provided, however, that the Guarantor shall
not be obliged to pay such amounts to any holder of a Note in respect of Taxes
to the extent such Taxes exceed the Taxes that would have been payable:
(i) had such holder not had any connection with Ireland or any
territory
25
or political subdivision thereof other than the mere holding of a Note with
the benefit of a Guarantee (or the receipt of any payments in respect
thereof) or activities incidental thereto; or
(ii) but for the delay or failure by such holder (following a written
request by the Guarantor) in the filing with an appropriate Governmental
Authority or otherwise of forms, certificates, documents, applications or
other reasonably required evidence (collectively "Forms"), that is required
to be filed by such holder to avoid or reduce such Taxes and that in the
case of any of the foregoing would not result in any confidential or
proprietary income tax return information being revealed, either directly
or indirectly, to any Person and other than as required by applicable law
and such delay or failure could have been lawfully avoided by such holder,
provided that such holder shall be deemed to have satisfied the
requirements of this clause (ii) upon the good faith completion and
submission of such Forms as may be specified in a written request of the
Guarantor no later than 45 days after receipt by such holder of such
written request.
(b) In the event that a holder is deemed to be domiciled or resident in
Ireland for Irish tax purposes or to be carrying on business in Ireland as a
matter of Irish law solely by reason of the making and performance or
enforcement of the Guarantee Agreement or the holding of Guarantees the
Guarantor will indemnify such holder on an after-tax basis against any Irish
taxes including interest and penalties thereon attributable to such holder being
deemed to be domiciled or resident in Ireland for Irish tax purposes or to be
carrying on business in Ireland.
(c) Within 60 days after the date of any payment by the Guarantor of any
Tax in respect of any payment under the Notes, the Guarantees or this Section 8,
the Guarantor shall furnish to each holder of a Note the original tax receipt
for the payment of such Tax (or if such original tax receipt is not available, a
duly certified copy of the original tax receipt), together with such other
documentary evidence with respect to such payments as may be reasonably
requested from time to time by any holder of a Note.
(d) The obligations of the Guarantor under this Section 8 shall survive the
transfer or payment of any Note, the enforcement, amendment or waiver of any
provision of this Guarantee Agreement or the Notes, and the termination of this
Guarantee Agreement.
9. EXPENSES, ETC.
9.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Guarantor will pay all costs and expenses (including reasonable attorneys' fees
of a special counsel and, if reasonably required, local or other counsel)
incurred by the Purchasers and each other holder of a Note in connection with
such transactions and in connection with any amendments, waivers or consents
under or in respect of this Guarantee Agreement or the
26
Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) any rights
under this Guarantee Agreement or the Notes or in responding to any subpoena or
other legal process or informal investigative demand issued in connection with
this Guarantee Agreement or the Notes, or by reason of being a holder of any
Note, and (b) the costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the Guarantor or any
of its Subsidiaries or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Guarantor will pay, and
will hold each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers and finders
(other than those retained by such Purchaser or other holder).
9.2. Taxes.
The Guarantor will pay all stamp, documentary or similar taxes which may be
payable in respect of the execution and delivery of this Guarantee Agreement or
the Note Purchase Agreement or of the execution and delivery of any of the Notes
or of any amendment of, or waiver or consent under or with respect to, this
Guarantee Agreement, the Note Purchase Agreement or of any of the Notes and will
hold each holder of a Note harmless against any loss or liability resulting from
nonpayment or delay in payment of any such tax required to be paid by the
Company under the Note Purchase Agreement or the Guarantor hereunder.
9.3. Survival.
The obligations of the Guarantor under this Section 9 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Guarantee Agreement or the Notes, and the termination of this
Guarantee Agreement.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Guarantee Agreement and the Guarantees, the
purchase or transfer by each Purchaser of any Note or portion thereof or
interest therein and the payment of any Note, and may be relied upon by any
subsequent holder of a Note, regardless of any investigation made at any time by
or on behalf of any Purchaser or any other holder of a Note. All statements
contained in any certificate or other instrument delivered by or on behalf of
the Guarantor pursuant to this Guarantee Agreement shall be deemed
representations and warranties of the Guarantor under this Guarantee Agreement.
Subject to the preceding sentence, this Guarantee Agreement and the Guarantees
embody the entire agreement and understanding between the Purchasers and the
Guarantor and supersede all prior agreements and understandings relating to the
subject matter hereof.
27
11. AMENDMENT AND WAIVER.
11.1. Requirements.
This Guarantee Agreement and the Guarantees may be amended, and the
observance of any term hereof or of the Guarantees may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Guarantor and the Required Holders, except that (a) no amendment or waiver of
any of the provisions of Section 1, 2, 3, 4, 14 or 16 hereof, or any defined
term (as it is used therein), will be effective as to any Purchaser unless
consented to by such Purchaser in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12 of the
Note Purchase Agreement relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the rate
or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver or (iii) amend any of Sections 8, 11 or 17.
11.2. Solicitation of Holders of Notes.
(a) Solicitation. The Guarantor will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Guarantor will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 11 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Guarantor will not directly or indirectly pay or cause to
be paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
11.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 11 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Guarantor without regard to whether such Note
has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend
28
to or affect any obligation, covenant, agreement, Default or Event of Default
not expressly amended or waived or impair any right consequent thereon. No
course of dealing between the Guarantor and the holder of any Note nor any delay
in exercising any rights hereunder or under any Note shall operate as a waiver
of any rights of any holder of such Note. As used herein, the term this
"Guarantee Agreement" and references thereto shall mean this Guarantee Agreement
as it may from time to time be amended or supplemented.
11.4. Notes held by Guarantor, etc.
Solely for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under this
Guarantee Agreement, or have directed the taking of any action provided herein
to be taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by either Obligor or any Affiliate of either Obligor shall be
deemed not to be outstanding.
12. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by a recognized overnight delivery service (with charges prepaid). Any such
notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the
address specified for such communications in Schedule A of the Note Purchase
Agreement, or at such other address as such Purchaser or nominee shall have
specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as
such other holder shall have specified to the Company in writing,
(iii) if to the Guarantor, to the Guarantor at its address set forth at the
beginning hereof to the attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or at such other address
as the Guarantor shall have specified to the holder of each Note in writing.
Notices under this Section 12 will be deemed given only when actually received.
13. REPRODUCTION OF DOCUMENTS.
This Guarantee Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by any Purchaser at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished
29
to any Purchaser, may be reproduced by such Purchaser by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and such Purchaser may destroy any original document so reproduced. The
Guarantor agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence. This
Section 13 shall not prohibit the Guarantor or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
14. CONFIDENTIAL INFORMATION.
For the purposes of this Section 14, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Guarantor or any
of its Subsidiaries in connection with the transactions contemplated by or
otherwise pursuant to this Guarantee Agreement that is proprietary in nature and
that was clearly marked or labeled or otherwise adequately identified in writing
when received by such Purchaser as being confidential information of the
Guarantor or such Subsidiary, provided that such term does not include
information that (a) was publicly available or otherwise known to such Purchaser
prior to the time of such disclosure, (b) subsequently becomes publicly
available through no act or omission by such Purchaser or any person acting on
such Purchaser's behalf, (c) otherwise becomes known to such Purchaser other
than through disclosure by the Guarantor or any of its Subsidiaries or (d)
constitutes financial statements delivered to such Purchaser under Section 5.1
that are otherwise publicly available. Each Purchaser will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser, provided that such Purchaser may
deliver or disclose Confidential Information to (i) such Purchaser's directors,
officers, employees, agents, attorneys, affiliates and trustees (to the extent
such disclosure reasonably relates to the administration of the investment
represented by such Purchaser's Notes), (ii) such Purchaser's financial advisors
and other professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 14, (iii)
any other holder of any Note, (iv) any Qualified Purchaser to which such
Purchaser sells or offers to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this Section
14), (v) any Person from which such Purchaser offers to purchase any security of
an Obligor (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 14), (vi)
any federal or state regulatory authority having jurisdiction over such
Purchaser, (vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that is
provided access to information about such Purchaser's investment portfolio or
(viii) any other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule,
30
regulation or order applicable to such Purchaser, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to which
such Purchaser is a party or (z) if an Event of Default has occurred and is
continuing, to the extent such Purchaser may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under such Purchaser's Notes or this
Guarantee Agreement. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 14 as though it were a party to this Guarantee Agreement (and the
obligations of each holder of a Note under this Section 14 shall survive the
transfer or payment of such Note). On reasonable request by the Guarantor in
connection with the delivery to any holder of a Note of information required to
be delivered to such holder under this Guarantee Agreement or requested by such
holder (other than a holder that is a party to this Guarantee Agreement or its
nominee), such holder will enter into an agreement with the Guarantor embodying
the provisions of this Section 14.
15. JURISDICTION AND PROCESS.
THE GUARANTOR AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTEE AGREEMENT OR THE GUARANTEES OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH, OR ANY LEGAL ACTION OR PROCEEDING TO EXECUTE OR
OTHERWISE ENFORCE ANY JUDGMENT OBTAINED AGAINST THE GUARANTOR, AS THE CASE MAY
BE, FOR BREACH HEREOF OR THEREOF, OR AGAINST ANY OF ITS PROPERTIES, MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BY ANY PURCHASER OR ON ANY
PURCHASER'S BEHALF OR BY OR ON BEHALF OF ANY HOLDER OF A NOTE, AS ANY PURCHASER
OR SUCH HOLDER MAY ELECT, AND THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS FOR
PURPOSES OF ANY SUCH LEGAL ACTION OR PROCEEDING. THE GUARANTOR HEREBY
IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, WHOSE ADDRESS IS ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, OR ANY OTHER PERSON HAVING AND MAINTAINING A
PLACE OF BUSINESS IN THE STATE OF NEW YORK WHOM THE GUARANTOR MAY FROM TIME TO
TIME HEREAFTER DESIGNATE (HAVING GIVEN 30 DAYS' NOTICE THEREOF TO EACH HOLDER OF
A NOTE THEN OUTSTANDING), AS THE TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED
AGENT FOR ACCEPTANCE OF SERVICE OF LEGAL PROCESS OF THE GUARANTOR. THE GUARANTOR
HEREBY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO IT AS ITS ADDRESS SPECIFIED IN
SECTION 12 OR AT SUCH OTHER ADDRESS OF WHICH EACH HOLDER OF A NOTE SHALL HAVE
BEEN NOTIFIED PURSUANT THERETO. IN ADDITION, THE GUARANTOR HEREBY
31
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT, THE
GUARANTEES OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
16. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTEE AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS GUARANTEE AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
17. OBLIGATION TO MAKE PAYMENTS IN DOLLARS.
All payments made by the Guarantor under this Guarantee Agreement or the
Guarantees, as the case may be, shall be in Dollars and the obligations of the
Guarantor to make payments in Dollars of any of their obligations under this
Guarantee Agreement or the Guarantees shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Dollars, except to the extent such tender
or recovery shall result in the actual receipt by the holder of any Note of the
full amount of Dollars expressed to be payable in respect of any such
obligations. The obligation of the Guarantor to make payments in Dollars as
aforesaid shall be enforceable as an alternative or additional cause of action
for the purpose of recovery in Dollars of the amount, if any, by which such
actual receipt shall fall short of the full amount of Dollars expressed to be
payable in respect of any such obligations (other than any such shortfall
attributable to a failure or delay by the recipient thereof in converting such
actual amount received in such other currency to Dollars), and shall not be
affected by judgment being obtained for any other sums due under this Guarantee
Agreement or the Guarantees.
32
18. MISCELLANEOUS.
18.1. Successors and Assigns.
All covenants and other agreements contained in this Guarantee Agreement by
or on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
18.2. Payments Due on Non-Business Days.
Anything in this Guarantee Agreement to the contrary notwithstanding, any
payment of principal of or Make-Whole Amount or interest on any Note that is due
on a date other than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed in the computation of
the interest payable on such next succeeding Business Day.
18.3. Severability.
Any provision of this Guarantee Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
18.4. Construction.
Each covenant of this Guarantee Agreement shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
18.5. Counterparts.
This Guarantee Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
33
18.6. Governing Law.
This Guarantee Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of New York excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
* * * * *
34
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Guarantee Agreement and return
it to the Guarantor, whereupon the foregoing shall become a binding agreement
between you and the Guarantor.
ELAN CORPORATION, PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
The foregoing is hereby agreed to as of the date thereof.
ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatories
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
AMERICAN GENERAL LIFE INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Investment Officer
PFL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY-
UNIV LIFE
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION INSTITUTIONALLY OWNED
LIFE INSURANCE SEPARATE ACCOUNT
BY: NEW YORK LIFE INSURANCE COMPANY
ITS INVESTMENT MANAGER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Its Authorized Representative
UNUM LIFE INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Officer
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact,
on behalf of ▇▇▇▇▇▇▇ National Life
Insurance Company
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FORT DEARBORN LIFE INSURANCE COMPANY
By: Guardian Asset Management Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
GE CAPITAL LIFE ASSURANCE COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Officer
PHOENIX AMERICAN LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Officer
ERIE INSURANCE EXCHANGE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer &
Chief Investment Officer
ERIE FAMILY LIFE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer &
Chief Investment Officer
ERIE INDEMNITY COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer &
Chief Investment Officer
ERIE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer &
Chief Investment Officer
ERIE INSURANCE GROUP EMPLOYEES
RETIREMENT TRUST (PENSION TRUST)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer &
Chief Investment Officer
MONY LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
PACIFIC LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇. Milfs
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. Milfs
Title: Corporate Secretary
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Title: First Vice President
THE PENN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Sr. Investment Analyst
THE PENN INSURANCE AND ANNUITY
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Sr. Investment Analyst
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Investment Sub-Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
MASSMUTUAL ASIA LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
NATIONWIDE LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Associate Vice President
NATIONWIDE MULTIPLE MATURITY
SEPARATE ACCOUNT
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Associate Vice President
AMCO INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Associate Vice President
THE OHIO NATIONAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Senior Investment Officer
SCHEDULE A
DEFINED TERMS
As used herein, terms defined in the Note Purchase Agreement are used
herein as defined therein. In addition, as used herein:
"AAA Rated Country" means a country having, on the date of determination, a
credit rating of AAA from Standard & Poor's or Aaa from ▇▇▇▇▇'▇.
"Annualized EBITDA" means, as of any date, EBITDA for each of the four most
recently completed fiscal quarters prior to such date.
"Applicable Taxing Authority" is defined in Section 4.9(b).
"benefit liabilities" is defined in Section 4.12(b).
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City or Ireland are required or authorized to
be closed.
"Confidential Information" is defined in Section 14.
"Consolidated Adjusted Indebtedness" means, as of any date, all
Indebtedness of the Guarantor and its Subsidiaries outstanding on such date
determined on a consolidated basis in accordance with U.S. GAAP, excluding all
Excluded Debt.
"Consolidated Adjusted Net Income" means, with respect to any period, the
consolidated net income of the Guarantor and its Subsidiaries for such period as
determined in accordance with U.S. GAAP, excluding (i) unusual items,
extraordinary items and non-recurring items, including but not limited to: (a)
write-offs of in-process research and development or other intangible assets
arising from any acquisition and (b) restructuring or integration charges, and
(ii) any amount representing any interest in the unremitted earnings of any
Person other than a Subsidiary.
"Consolidated Adjusted Net Worth" means, as of any date, (i) the sum of (a)
Consolidated Net Worth of the Guarantor and its Subsidiaries as of December 31,
1999 determined in accordance with U.S. GAAP and (b) Consolidated Adjusted Net
Income for the period from and including January 1, 2000 through such date minus
(ii) dividends, interest on capital or other distribution with respect to any
class of Capital Stock of the Guarantor paid, or any payment on account of the
purchase redemption, retirement, acquisition, cancellation or termination of any
such shares of Capital Stock of the Guarantor made during the period from and
including January 1, 2000 through such date.
"Consolidated Net Worth" means, as of any date, the consolidated
shareholders' equity of the Guarantor and its Subsidiaries determined in
accordance with U.S. GAAP as of such date, excluding any reduction in
consolidated shareholders' equity as a result of any unusual items,
extraordinary items or non-recurring items, to the extent such items have not
otherwise reduced consolidated net income occurring during the period from and
including January 1, 2000 through such date.
"Consolidated Total Assets" means, on any date of determination with
respect to the Guarantor and its Subsidiaries, all assets of the Guarantor and
its Subsidiaries that would be classified as assets of a company conducting a
business the same as or similar to that of the Guarantor, after deducting
adequate reserves in each case in which a reserve is proper, on a consolidated
basis in accordance with U.S. GAAP.
"Consolidated Total Capitalization" means, as of any date, the sum of (i)
Consolidated Adjusted Indebtedness on such date, (ii) Consolidated Adjusted Net
Worth on such date and (iii) an amount equal to any increases in the
consolidated shareholders' equity of the Guarantor and its Subsidiaries
determined in accordance with U.S. GAAP resulting from the issuance of ordinary
shares of the Guarantor during the period from January 1, 2000 through such
date, except that in the case of ordinary shares issued in acquiring 100% of the
stock of another corporation (a "Relevant Acquisition"), the amount to be
included will be limited to the value of the ordinary shares issued net of any
charge at the closing of such Relevant Acquisition for a write down in acquired
research and development costs associated with such Relevant Acquisition.
"current liabilities" is defined in Section 4.12(b).
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
"Deemed Non-Competitor" means any Person with respect to which any holder
has provided the legal name of such Person and has requested the Guarantor's
determination as to whether such Person, in the Guarantor's reasonable
judgement, is a competitor of the Guarantor or any of its Subsidiaries or has
commercial activities adverse to the commercial activities of the Guarantor or
any of its Subsidiaries unrelated to providing finance or holding of the Notes
and the Guarantor has not responded in writing to such holder, within 10 days
after the date such request is made, deeming such Person to be a competitor or
to have commercial activities adverse to the Guarantor.
"EBITDA" means, for any period, Consolidated Adjusted Net Income for such
period (i) plus all amounts deducted in the computation thereof on account of
(A) depreciation and amortization, (B) interest expense (including imputed
interest in respect of Capital Leases, amortization of debt discount, the net
costs under Swaps and the interest portion of any deferred payment obligation),
(C) all other non-cash expenses and (D) income taxes and (ii) minus all non-cash
gains included in determining Consolidated Adjusted Net Income for such period,
all calculated on a consolidated basis in accordance with U.S. GAAP.
2
"Eighty Percent Subsidiary" means a Subsidiary as to which at least 80% of
the Capital Stock of which is owned directly or indirectly by the Guarantor.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Guarantor under Section
414 of the Code.
"European Union Country" means any member country of the European Union as
of the date hereof, not including Greece.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Excluded Debt" means, without duplication, (1) $325,000,000 aggregate
principal amount of 4.75% Exchangeable Notes due November 15, 2004 issued by
Athena Neurosciences, Inc., a wholly-owned subsidiary of the Guarantor
("Athena"), pursuant to an indenture, dated as of November 1, 1997, by and among
Athena, the Guarantor and The Bank of New York, as trustee, including the
Guarantor's Guaranty thereof, and (2) $1,643,546,000 aggregate principal amount
at maturity of Liquid Yield Option Notes due 2018 issued by Elan Finance
Corporation Ltd. ("EFC"), pursuant to an indenture, dated as of December 14,
1999, by and among EFC, the Guarantor and The Bank of New York, as trustee,
including the Guarantor's Guaranty thereof.
"Foreign Pension Plan" is defined in Section 4.12(f).
"Forms" is defined in Section 8(a).
"Guarantee Agreement" is defined in Section 11.3.
"Guarantor" means Elan Corporation, plc, a company incorporated under the
laws of Ireland, or any successor thereto that shall have become such in the
manner prescribed in Section 7.2.
"Investment Policy" means the working capital investment policy of the
Guarantor in effect from time.
"margin stock" is defined in Section 4.14.
"Material Adverse Effect" means a material adverse effect on the (a)
business, operations, affairs, financial condition, prospects, assets or
properties of the Guarantor and its Subsidiaries, taken as a whole, (b) or the
ability of the Guarantor to perform its obligations under the Guarantee
Agreement or the Guarantees or (c) the validity or enforceability of the
Guarantee Agreement or the Guarantees.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of the
date hereof among the Company and the Purchasers.
3
"present value" is defined in Section 4.12(b).
"Purchaser" and "Purchasers" are defined in the first paragraph of this
Guarantee Agreement.
"purpose of buying or carrying" is defined in Section 4.14.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" of the Guarantor means the principal of, premium, if
any, and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, but only to the extent
allowed or permitted to the holder of such Indebtedness against the bankruptcy
or other insolvency estate of the Guarantor in such proceeding) and fees,
expenses, reimbursement obligations, indemnity obligations and other amounts due
on or in connection with any Indebtedness incurred, assumed or guaranteed by the
Guarantor, whether outstanding on the date of the Guarantee Agreement or
thereafter incurred, assumed or guaranteed, and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any such Indebtedness; provided, however, that the following will not constitute
Senior Indebtedness of the Guarantor, if the instrument creating the same or
evidencing the same or pursuant to which the same is outstanding expressly
provides (i) that such Indebtedness shall not be senior in right of payment to
the Guarantees or (ii) that such Indebtedness shall be subordinated to any other
debt of the Guarantor unless such instrument expressly provides that such debt
shall be senior in right of payment to the Guarantees; provided, further, that,
without limiting the foregoing, the Guarantees will rank pari passu in right of
payment with (i) the Guaranty by the Guarantor of $325,000,000 aggregate
principal amount of 4.75% Exchangeable Notes due November 15, 2004 issued by
Athena Neurosciences, Inc., a wholly-owned subsidiary of the Guarantor
("Athena"), pursuant to an indenture, dated as of November 1, 1997, by and among
Athena, the guarantor and The Bank of New York, as trustee, (ii) the Guaranty by
the Guarantor of $1,643,546,000 aggregate principal amount at maturity of Liquid
Yield Option Notes due 2018 issued by Elan Finance Corporation Ltd. ("EFC"),
pursuant to an indenture dated as of December 14, 1990 by and among EFC, the
Guarantor and The Bank of New York, as Trustee and (iii) the Guaranty by the
Guarantor pursuant to the Guarantee Agreement dated as of June 28, 1999 by and
among the Guarantor and the purchasers party thereto of $350,000,000 aggregate
principal amount of 8.43% Guaranteed Notes due June 29, 2002 issued by Elan
Pharmaceutical Investments Ltd. ("EPIL") pursuant to the Note Purchase Agreement
dated as of June 28, 1999 by and among Elan and the purchasers party thereto.
"Surviving Entity" is defined in Section 7.2(a).
"Tax" and "Taxes" are defined in Section 4.9(b).
4
EXHIBIT 1-A
FORM OF GUARANTEE
For value received, the undersigned hereby unconditionally and irrevocably
guarantees on a subordinated basis to the holder of the foregoing Note the due
and punctual payment of the principal of, Make-Whole Amount, if any, and
interest on said Note, as more fully provided in the Note and the Guarantee
Agreement referred to in said Note.
ELAN CORPORAITON, PLC
By
------------------------------------
Name:
Title