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EXHIBIT 4.1
CONFORMED COPY
$1,750,000,000
364-DAY CREDIT AGREEMENT
dated as of
February 13, 1998
among
Tyco International (US) Inc.,
The Banks Listed Herein
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Agent
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions........................................................ 1
SECTION 1.02. Accounting Terms and Determinations................................ 16
SECTION 1.03. Types of Borrowings................................................ 16
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend................................................ 17
SECTION 2.02. Notice of Committed Borrowing...................................... 17
SECTION 2.03. The Money Market Borrowings........................................ 17
SECTION 2.04. Notice to Banks; Funding of Loans.................................. 21
SECTION 2.05. Promissory Notes................................................... 22
SECTION 2.06. Maturity of Loans.................................................. 23
SECTION 2.07. Interest Rates..................................................... 23
SECTION 2.08. Facility Fee....................................................... 26
SECTION 2.09. Optional Termination or Reduction of Commitments................... 27
SECTION 2.10. Mandatory Termination of Commitments............................... 27
SECTION 2.11. Optional Prepayments............................................... 27
SECTION 2.12. General Provisions as to Payments.................................. 27
SECTION 2.13. Funding Losses..................................................... 28
SECTION 2.14. Computation of Interest and Fees................................... 28
SECTION 2.15. Regulation D Compensation.......................................... 28
SECTION 2.16. Method of Electing Interest Rates.................................. 29
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness...................................................... 31
SECTION 3.02. Existing Agreements................................................ 32
SECTION 3.03. Borrowings......................................................... 34
SECTION 3.04. New Borrower....................................................... 34
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power...................................... 36
SECTION 4.02. Corporate and Governmental Authorization; No Contravention......... 37
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SECTION 4.03. Binding Effect..................................................... 37
SECTION 4.04. Financial Information.............................................. 37
SECTION 4.05. Litigation......................................................... 37
SECTION 4.06. Compliance with ERISA.............................................. 37
SECTION 4.07. Environmental Matters.............................................. 38
SECTION 4.08. Taxes.............................................................. 38
SECTION 4.09. Subsidiaries....................................................... 38
SECTION 4.10. Not an Investment Company.......................................... 39
SECTION 4.11. Full Disclosure.................................................... 39
ARTICLE 5
COVENANTS
SECTION 5.01. Information........................................................ 39
SECTION 5.02. Payment of Obligations............................................. 41
SECTION 5.03. Maintenance of Property; Insurance................................. 41
SECTION 5.04. Conduct of Business and Maintenance of Existence................... 42
SECTION 5.05. Compliance with Laws............................................... 42
SECTION 5.06. Inspection of Property, Books and Records; Confidentiality......... 43
SECTION 5.07. Limitation on Restrictions on Subsidiary Dividends and Other
Distributions...................................................... 44
SECTION 5.08. Debt............................................................... 46
SECTION 5.09. Fixed Charge Coverage.............................................. 46
SECTION 5.10. Negative Pledge.................................................... 46
SECTION 5.11. Consolidations, Mergers and Sales of Assets........................ 48
SECTION 5.12. Use of Proceeds.................................................... 49
SECTION 5.13. Transactions with Affiliates....................................... 49
SECTION 5.14. Additional Subsidiary Guarantors................................... 49
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Defaults................................................. 50
SECTION 6.02. Notice of Default.................................................. 52
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization...................................... 52
SECTION 7.02. Agent and Affiliates............................................... 52
SECTION 7.03. Action by Agent.................................................... 52
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SECTION 7.04. Consultation with Experts.......................................... 53
SECTION 7.05. Liability of Agent................................................. 53
SECTION 7.06. Indemnification.................................................... 53
SECTION 7.07. Credit Decision.................................................... 53
SECTION 7.08. Successor Agent.................................................... 53
SECTION 7.09. Agent's Fee........................................................ 54
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair........... 54
SECTION 8.02. Illegality......................................................... 55
SECTION 8.03. Increased Cost and Reduced Return.................................. 55
SECTION 8.04. Taxes.............................................................. 57
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans.......... 58
SECTION 8.06. Substitution of Bank............................................... 59
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices............................................................ 59
SECTION 9.02. No Waivers......................................................... 60
SECTION 9.03. Expenses; Indemnification.......................................... 60
SECTION 9.04. Sharing of Set-Offs................................................ 60
SECTION 9.05. Amendments and Waivers............................................. 61
SECTION 9.06. Successors and Assigns............................................. 61
SECTION 9.07. Collateral......................................................... 63
SECTION 9.08. Governing Law; Submission to Jurisdiction.......................... 63
SECTION 9.09. Counterparts; Integration.......................................... 64
SECTION 9.10. Waiver of Jury Trial............................................... 64
SECTION 9.11. Judgment Currency.................................................. 64
Commitment Schedule
Exhibit A - Promissory Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E-1 - Opinion of General Counsel of the Borrower
Exhibit E-2 - Opinion of General Counsel on Behalf of the Parent Guarantor
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Form of Subsidiary Guarantee
Exhibit I - Form of Subsidiary Counsel Opinion
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Exhibit J - Form of Parent Guarantee
Exhibit K - Form of Parent Counsel Opinion
Exhibit L - Form of New Borrower Agreement
Exhibit M - Form of Tyco Luxembourg Counsel Opinion
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EXTENDIBLE 364-DAY CREDIT AGREEMENT
AGREEMENT dated as of February 13, 1998 among TYCO INTERNATIONAL (US)
INC., the BANKS listed on the signature pages hereof and ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"ACQUISITION" means the acquisition by the Borrower and certain of its
Affiliates of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ & ▇▇▇▇ Division of American Home Products
Corporation on substantially the terms and conditions heretofore disclosed to
the Banks.
"ADJUSTED CD RATE" has the meaning set forth in Section 2.07(b).
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"AFFILIATE" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person") or
(ii) any Person (other than the Borrower or a Subsidiary) which is controlled by
or is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. The fact that an
Affiliate of a Person is a member of a law firm that renders services to such
Person or its Affiliates does not mean that the law firm is an Affiliate of such
Person.
"AGENT" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its capacity
as agent for the Banks under the Financing Documents, any successor agent that
becomes the Agent pursuant to Section 7.08, and the respective corporate
successors of the foregoing acting in such capacity.
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"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"APPLICABLE MARGIN" has the meaning set forth in Section 2.07(h).
"ASSESSMENT RATE" has the meaning set forth in Section 2.07(b).
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANK" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and the respective
corporate successors of the foregoing.
"BANK AFFILIATE" means, with respect to the Agent or any Bank, any
Person controlling, controlled by or under common control with the Agent or such
Bank, as the case may be.
"BASE RATE" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"BASE RATE LOAN" means a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Section 2.07(a) or Article 8.
"BORROWER" means (i) until the New Borrower Date, Tyco US and (ii) on
and after the New Borrower Date, Tyco Luxembourg.
"BORROWING" has the meaning set forth in Section 1.03.
"CD BASE RATE" has the meaning set forth in Section 2.07(b).
"CD LOAN" means a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election.
"CD RATE" means a rate of interest determined pursuant to Section
2.07(b) on the basis of an Adjusted CD Rate.
"CD REFERENCE BANKS" means The Hongkong and Shanghai Banking
Corporation Limited, Commerzbank AG and ▇▇▇▇▇▇ Guaranty Trust Company of New
York.
"COMMITMENT" means (i) with respect to each Bank listed on the
Commitment Schedule, the amount set forth opposite the name of such Bank on the
Commitment Schedule and (ii) with respect to any Assignee, the amount of the
transferor Bank's Commitment assigned to it pursuant
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to Section 9.06(c), in each case as such amount may be changed from time to time
pursuant to Section 2.09 or 9.06(c).
"COMMITMENT SCHEDULE" means the Commitment Schedule attached hereto.
"COMMITTED BORROWING" has the meaning set forth in Section 1.03.
"COMMITTED LOAN" means a loan made by a Bank pursuant to Section 2.01;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term Committed
Loan shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"CONDUIT" means a special purpose corporation which is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business.
"CONDUIT DESIGNATION" has the meaning set forth in Section 9.06(f).
"CONSENTS" has the meaning set forth in Section 4.01.
"CONSOLIDATED ASSETS" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such time.
"CONSOLIDATED DEBT" means, at any date, the aggregate amount of Debt of
the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis as of such date; provided that (i) if a Permitted Receivables Transaction
is outstanding at such date and is accounted for as a sale of accounts
receivable under generally accepted accounting principles, Consolidated Debt
determined as aforesaid shall be adjusted to include the additional Debt,
determined on a consolidated basis as of such date, which would have been
outstanding at such date had such Permitted Receivables Transaction been
accounted for as a borrowing at such date and (ii) Consolidated Debt shall in
any event include all Debt of any Person other than the Borrower or a
Consolidated Subsidiary which is Guaranteed by the Borrower or a Consolidated
Subsidiary, except that Consolidated Debt shall not include Debt of a joint
venture, partnership or similar entity which is Guaranteed by the Borrower or a
Consolidated Subsidiary by virtue of the joint venture, partnership or similar
arrangement with respect to such entity or by operation of applicable law (and
not otherwise) so long as the aggregate outstanding principal amount of all such
excluded Debt at any date does not exceed $50,000,000.
"CONSOLIDATED EBIT" means, for any fiscal period, Consolidated Net
Income for such period plus, to the extent deducted in determining Consolidated
Net Income for such period, the aggregate amount of (i) Consolidated Interest
Expense and (ii) federal, state and local income tax expense.
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"CONSOLIDATED INTEREST EXPENSE" means, for any fiscal period, (without
duplication) (i) the consolidated interest expense of the Borrower and its
Consolidated Subsidiaries for such period minus (ii) the consolidated interest
income of the Borrower and its Consolidated Subsidiaries for such period, if,
and only if, such consolidated interest income is equal to or less than
$5,000,000, plus (iii) if a Permitted Receivables Transaction outstanding during
such period is accounted for as a sale of accounts receivable under generally
accepted accounting principles, the additional consolidated interest expense
that would have accrued during such period had such Permitted Receivables
Transaction been accounted for as a borrowing during such period, in each case
determined on a consolidated basis.
"CONSOLIDATED NET INCOME" means, for any fiscal period, the
consolidated net income of the Borrower and its Consolidated Subsidiaries for
such period, determined on a consolidated basis after eliminating therefrom all
Extraordinary Gains and Losses. "EXTRAORDINARY GAINS AND LOSSES" means and
includes, for any fiscal period, all extraordinary gains and losses and all
other material non-recurring non-cash items of the Borrower and its Consolidated
Subsidiaries for such period, determined on a consolidated basis and, in
addition, includes, without limitation, gains or losses from the discontinuance
of operations and gains or losses of the Borrower and its Consolidated
Subsidiaries for such period resulting from the sale, conversion or other
disposition of material assets of the Borrower or any Consolidated Subsidiary
other than in the ordinary course of business.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date and adjusted so as to exclude
the effect of the currency translation adjustment as of such date.
"CONSOLIDATED SUBSIDIARY" means, at any date, with respect to any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in such Person's consolidated financial
statements if such statements were prepared as of such date; unless otherwise
specified, Consolidated Subsidiary means a Consolidated Subsidiary of the
Borrower.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, (i) Consolidated
Net Worth as of such date minus (ii) Intangible Assets as of such date.
"CONSOLIDATED TOTAL CAPITALIZATION" means, at any date, the sum of
Consolidated Debt and Consolidated Net Worth, each determined as of such date.
"DEBT" of any Person means, at any date, without duplication, (i) the
principal amount of all obligations of such Person for borrowed money, (ii) the
principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (it being understood that,
subject to the proviso to this definition of "Debt," performance bonds,
performance guaranties, letters of credit, bank guaranties and similar
instruments shall not constitute Debt of such Person to the extent that the
outstanding reimbursement obligations of
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such Person in respect thereof are collateralized by cash or cash equivalents,
which cash or cash equivalents would not be reflected as assets on a balance
sheet of such Person prepared in accordance with generally accepted accounting
principles), (iii) all obligations of such Person to pay the deferred purchase
price of property or services recorded on the books of such Person, except for
(a) trade and similar accounts payable and accrued expenses arising in the
ordinary course of business, and (b) employee compensation and pension
obligations, and other obligations arising from employee benefit programs and
agreements or other similar employment arrangements, (iv) all obligations of
such Person as lessee which are capitalized on the books of such Person in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vi) all Debt of others Guaranteed by such
Person; provided, however, that Debt shall not include:
(A) contingent reimbursement obligations in respect of
performance bonds, performance guaranties, bank
guaranties or letters of credit issued in lieu of
performance bonds or performance guaranties or
similar instruments, in each case, incurred by such
Person in the ordinary course of business;
(B) contingent reimbursement obligations in respect of
trade letters of credit, or similar instruments, in
each case, incurred by such Person in the ordinary
course of business; or
(C) contingent reimbursement obligations in respect of
standby letters of credit or similar instruments
securing self-insurance obligations of such Person;
in each case, so long as the underlying obligation supported thereby does not
itself constitute Debt.
"DEBT RATING" means a rating of the Borrower's long-term debt which is
not secured or supported by a guarantee, letter of credit or other form of
credit enhancement. If a Debt Rating by a Rating Agency is required to be at or
above a specified level and such Rating Agency shall have changed its system of
classifications after the date hereof, the requirement will be met if the Debt
Rating by such Rating Agency is at or above the new rating which most closely
corresponds to the specified level under the old rating system.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
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"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"DOMESTIC LOANS" means CD Loans or Base Rate Loans or both.
"DOMESTIC PARENT" means any Affiliate incorporated under the laws of
the United States, any State thereof or the District of Columbia of which Tyco
US is a Subsidiary.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section
2.07(b).
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary Guarantor and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary Guarantor, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or
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affiliate of such Bank as it may hereafter designate as its Euro-Dollar Lending
Office by notice to the Borrower and the Agent.
"EURO-DOLLAR LOAN" means a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.07(c) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of The
Hongkong and Shanghai Banking Corporation Limited, Commerzbank AG and ▇▇▇▇▇▇
Guaranty Trust Company of New York.
"EURO-DOLLAR RESERVE PERCENTAGE" has the meaning set forth in Section
2.15.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING AGREEMENTS" means the Existing 364-Day Agreement and the
Existing Five-Year Agreement.
"EXISTING FIVE-YEAR AGREEMENT" means the Five-Year Credit Agreement,
dated as of June 27, 1997, among the Borrower, the banks listed therein and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as agent for such banks, as amended
to the Effective Date.
"EXISTING 364-DAY AGREEMENT" means the 364-Day Credit Agreement, dated
as of June 27, 1997, among the Borrower, the banks listed therein and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as agent for such banks, as amended to the
Effective Date.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"FINAL MATURITY DATE" means the first anniversary of the Termination
Date or, if such day is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day.
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"FINANCING DOCUMENTS" means this Agreement, the Subsidiary Guarantees,
the Promissory Notes, the New Borrower Agreement and the Parent Guarantee.
"FIXED RATE LOANS" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"GROUP OF LOANS" means, at any time, a group of Loans consisting of (i)
all Committed Loans which are Base Rate Loans at such time, (ii) all Euro-Dollar
Loans having the same Interest Period at such time or (iii) all CD Loans having
the same Interest Period at such time, provided that, if a Committed Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to Article
8, such Loan shall be included in the same Group or Groups of Loans from time to
time as it would have been in if it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"GUARANTOR" means the Parent Guarantor and any Subsidiary Guarantor.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INTANGIBLE ASSETS" means, at any date, the amount (if any) which would
be stated under the heading "Costs in Excess of Net Assets of Acquired
Companies" or under any other heading relating to intangible assets separately
listed, in each case, on the face of a balance sheet of the Borrower and its
Consolidated Subsidiaries prepared on a consolidated basis as of such date.
"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter (or such other
period of time as may at the time be mutually agreed by the Borrower and the
Banks), as the Borrower may elect in such notice; provided that:
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(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Euro-Dollar Business Day of a calendar
month;
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in an applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter (or such other period of time as may at the time be
mutually agreed by the Borrower and the Banks), as the Borrower may elect in
such notice; provided that any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day;
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Euro-Dollar Business Day of a calendar
month; and
(4) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 30 days)
as the Borrower may elect in accordance with Section 2.03; provided that any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day;
and
provided further that:
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(x) any Interest Period applicable to any Loan which begins before the
Termination Date and would otherwise end after the Termination Date
shall end on the Termination Date; and
(y) any Interest Period applicable to any Loan which would otherwise
end after the Final Maturity Date shall end on the Final Maturity Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LEVEL I STATUS" exists at any date if, at such date, the Borrower has
Debt Ratings at or above the level of A by S&P or A2 by Moody's.
"LEVEL II STATUS" exists at any date if, at such date, (i) the Borrower
has Debt Ratings at or above the level of A- by S&P or A3 by Moody's and (ii)
Level I Status does not exist at such date.
"LEVEL III STATUS" exists at any date if, at such date, (i) the
Borrower has Debt Ratings at the level of BBB+ by S&P or Baa1 by Moody's and
(ii) Level I Status and Level II Status do not exist at such date.
"LEVEL IV STATUS" exists at any date if, at such date, (i) the Borrower
has Debt Ratings at the level of BBB by S&P or Baa2 by Moody's and (ii) Level I
Status, Level II Status and Level III Status do not exist at such date.
"LEVEL V STATUS" exists at any date if, at such date, the Borrower has
Debt Ratings at the level of BBB- by S&P and Baa3 by Moody's.
"LEVEL VI STATUS" exists at any date if, at such date, (i) the Borrower
has a Debt Rating from neither Rating Agency or (ii) Level I Status, Level II
Status, Level III Status, Level IV Status and Level V Status do not exist at
such date.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement (other than an operating lease)
relating to such asset.
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"LOAN" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "LOANS" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(c).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, consolidated financial position or consolidated results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a whole, or
(ii) the ability of the Borrower and the Guarantors to perform their obligations
under the Financing Documents.
"MATERIAL DEBT" means Debt (other than (i) the Promissory Notes, (ii)
the Subsidiary Guarantees, (iii) any Guarantee by the Borrower of Debt of a
Subsidiary, (iv) any Guarantee by a Subsidiary of Debt of the Borrower or
another Subsidiary, (v) any Debt of the Borrower owed to a Wholly-Owned
Consolidated Subsidiary or (vi) any Debt of a Subsidiary owed to the Borrower or
a Wholly-Owned Consolidated Subsidiary) of the Borrower and/or one or more of
its Subsidiaries, arising in one or more related or unrelated transactions, in
an aggregate outstanding principal amount exceeding $50,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section
2.03(d).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"MONEY MARKET BORROWING" has the meaning set forth in Section 1.03.
"MONEY MARKET LENDING OFFICE" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Agent; provided that any Bank may from time to time by notice to the
Borrower and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"MONEY MARKET LIBOR LOAN" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
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"MONEY MARKET MARGIN" has the meaning set forth in Section 2.03(d).
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to
such corporation's business of rating debt securities.
"MULTIEMPLOYER PLAN" means at any time a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA either (i) to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
(ii) has at any time within the preceding five plan years been maintained, or
contributed to, by any Person who was at such time a member of the ERISA Group
for employees of any Person who was at such time a member of the ERISA Group.
"NEW BORROWER AGREEMENT" means an agreement among Tyco US, Tyco
Luxembourg and the Agent for the benefit of the Banks, substantially in the form
of Exhibit L.
"NEW BORROWER DATE" has the meaning set forth in Section 3.04.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined
in Section 2.02 or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.16.
"OBLIGOR" means, at any time, the Borrower and each Guarantor at such
time.
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARENT GUARANTOR" means Tyco International Ltd., a Bermuda
corporation, and its successors.
"PARENT GUARANTEE" means a Parent Guarantee Agreement between the
Parent Guarantor and the Agent for the benefit of the Banks, substantially in
the form of Exhibit J, as amended from time to time.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED RECEIVABLES TRANSACTION" means any sale or sales of,
refinancing of and/or financing secured by, any accounts receivable of the
Borrower and/or any of its Subsidiaries (the "RECEIVABLES") pursuant to which
the Borrower and its Subsidiaries realize aggregate net
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proceeds of not more than $500,000,000 at any one time outstanding, including,
without limitation, any revolving purchase(s) of Receivables where the maximum
aggregate uncollected purchase price (exclusive of any deferred purchase price)
for such Receivables at any time outstanding does not exceed $500,000,000.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRIME RATE" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"PROMISSORY NOTES" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Loans, and "PROMISSORY NOTE" means any one of such
promissory notes issued hereunder.
"PROPERTY" means any interest of any kind in any property or assets,
whether real, mixed or personal and whether tangible or intangible.
"PROSPECTS" means, at any time, results of future operations which are
reasonably foreseeable based upon the facts and circumstances in existence at
such time.
"QUARTERLY PAYMENT DATES" means each March 31, June 30, September 30
and December 31.
"RATING AGENCY" means S&P or Moody's.
"REFERENCE BANKS" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "REFERENCE BANK" means any one
of such Reference Banks.
"REFINANCING" has the meaning set forth in Section 5.07 (and the term
"REFINANCED" has a correlative meaning).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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"RELATED AGREEMENT" means the Extendible 364-Day Credit Agreement dated
as of the date hereof among the Borrower, the banks from time to time parties
thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as agent for such banks,
as amended from time to time.
"REQUIRED BANKS" means at any time Banks having more than 60% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Promissory Notes evidencing more than 60% of the aggregate
unpaid principal amount of the Loans.
"REQUIRED SIGNIFICANT SUBSIDIARY" means any Significant Subsidiary as
defined in clause (A) of the definition of Significant Subsidiary; provided that
any Person which is a Significant Subsidiary as so defined shall nonetheless not
be a Required Significant Subsidiary if and for so long as (i) one or more
Required Significant Subsidiaries which are Subsidiary Guarantors are
Subsidiaries of such Person and (ii) such Person would not be a Significant
Subsidiary but for its ownership of such Subsidiary Guarantors.
"RESPONSIBLE OFFICER" means any of the following: the Chairman,
President, Vice President and Chief Financial Officer, Treasurer and Secretary
of the Borrower and, on and after the New Borrower Date, a Managing Director of
the Borrower.
"REVOLVING CREDIT LOAN" means a loan made or to be made by a Bank
pursuant to Section 2.01(a).
"SIGNIFICANT SUBSIDIARY" means, at any date, (A) any Consolidated
Subsidiary which, including its consolidated subsidiaries, meets any of the
following conditions:
(i) the investments in and advances to such
Consolidated Subsidiary by the Borrower and its other
Consolidated Subsidiaries exceed 15% of the total assets of
the Borrower and its Consolidated Subsidiaries, determined on
a consolidated basis as of the end of the most recently
completed fiscal year; or
(ii) the proportionate share attributable to such
Consolidated Subsidiary of the total assets of the Borrower
and its Consolidated Subsidiaries (after intercompany
eliminations) exceeds 15% of the total assets of the Borrower
and the Consolidated Subsidiaries, determined on a
consolidated basis as of the end of the most recently
completed fiscal year; or
(iii) the Borrower's and its Consolidated Subsidiaries'
equity in the income of such Consolidated Subsidiary from
continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle
exceeds 15% of such income of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis
for the most recently completed fiscal year; and
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(B) any other Subsidiary which is a Subsidiary Guarantor.
"STATUS" means, at any date, whichever of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at such date.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor to its business of rating debt
securities.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
such Person; unless otherwise specified, Subsidiary means a Subsidiary of the
Borrower.
"SUBSIDIARY GUARANTEE" means a Guarantee entered into by a Subsidiary
substantially in the form of Exhibit H hereto.
"SUBSIDIARY GUARANTOR" means, at any time, a Subsidiary which at or
prior to such time shall have delivered to the Agent (i) a Subsidiary Guarantee
in substantially the form of Exhibit H, duly executed by such Subsidiary, which
Subsidiary Guarantee has not terminated in accordance with its terms, (ii) an
opinion of counsel for such Subsidiary (which counsel may be an employee of the
Borrower or such Subsidiary) reasonably satisfactory to the Agent with respect
to such Subsidiary Guarantee, substantially in the form of Exhibit I hereto and
covering such additional matters relating to such Subsidiary Guarantee as the
Required Banks may reasonably request and (iii) all documents the Agent may
reasonably request relating to the existence of such Subsidiary, the corporate
authority for and the validity of such Subsidiary Guarantee, and any other
matters reasonably determined by the Agent to be relevant thereto, all in form
and substance reasonably satisfactory to the Agent.
"TERMINATION DATE" means February 12, 1999, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"TERM LOAN" means a loan made or to be made by a Bank pursuant to
Section 2.01(b).
"TYCO LUXEMBOURG" means Tyco Group S.a.r.l., a Luxembourg company, and
its successors.
"TYCO US" means Tyco International (US) Inc., a Massachusetts
corporation, and its successors.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of
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ERISA (excluding any accrued but unpaid contributions), all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or to any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means, with respect to any
Person, any Consolidated Subsidiary all of the shares of capital stock or other
ownership interests of which (except directors' qualifying shares and
investments by foreign nationals mandated by applicable law) are at the time
beneficially owned, directly or indirectly, by such Person; unless otherwise
specified, Wholly-Owned Consolidated Subsidiary means a Wholly-Owned
Consolidated Subsidiary of the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with United
States generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the then most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if either (i) the Borrower notifies the Agent that
the Borrower wishes to eliminate the effect of any change in generally accepted
accounting principles on the operation of any covenant contained in Article 5 or
(ii) the Agent notifies the Borrower that the Required Banks wish to effect such
an elimination, then the Borrower's compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either (A) such notice is withdrawn by the
party giving such notice or (B) such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks to reflect such change in
generally accepted accounting principles.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions of Article 2
under which participation therein is determined (i.e., a "Committed Borrowing"
is a Borrowing under Section 2.01 in which all Banks participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which the Bank participants are determined on the basis of their
bids in accordance therewith) or by reference to the maturity of Loans
comprising such Borrowing (e.g., a "TERM BORROWING" is a Borrowing comprised of
Term Loans).
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ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Revolving Credit Loans. Each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make loans to the Borrower pursuant to this Section 2.01 from time to time
prior to the Termination Date in amounts such that the aggregate principal
amount of Committed Loans by such Bank at any one time outstanding shall not
exceed the amount of its Commitment. Each Borrowing under this Section shall be
in an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.03(b)) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.11, prepay Loans and reborrow at any time prior to
the Termination Date under this Section 2.01.
(b) Term Loans. Each Bank severally agrees, on the terms and conditions
set forth in this Agreement, to make a loan to the Borrower on the Termination
Date in an aggregate amount up to but not exceeding the amount of its
Commitment.
SECTION 2.02. Notice of Committed Borrowing. The Borrower shall give
the Agent notice (a "Notice of Committed Borrowing") not later than 11:00 A.M.
(New York City time) on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate, a CD Rate or a Euro-Dollar Rate, and
(d) in the case of a Fixed Rate Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
SECTION 2.03. The Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Banks, at any time prior to the Termination Date, to make offers to
make Money Market Loans to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
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(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective), specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may,
in its sole discretion, submit a Money Market Quote containing an offer or
offers to make Money Market Loans in response to any Invitation for Money Market
Quotes. Each Money Market Quote must comply with the requirements of this
subsection 2.03(d) and must be submitted to the Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.01 not later
than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
9:30 A.M. (New York City time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction (or, in either
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case, such other time or date as the Borrower and the Agent shall have mutually
agreed and shall have notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided that Money Market Quotes
submitted by the Agent (or any affiliate of the Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the Agent or such affiliate
notifies the Borrower of the terms of the offer or offers contained therein not
later than (x) one hour prior to the deadline for the other Banks, in the case
of a LIBOR Auction or (y) 15 minutes prior to the deadline for the other Banks,
in the case of an Absolute Rate Auction. Subject to Articles 3 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing and the Interest Period
therefor,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x)
must be $5,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate limitation
as to the principal amount of Money Market Loans for which offers
being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added
to or subtracted from the applicable London Interbank Offered
Rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection
2.03(d)(ii);
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(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection
2.03(d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection 2.03(d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.03(e) (and the failure of the Borrower to give such notice by such
time shall constitute non-acceptance) and the Agent shall promptly notify each
affected Bank. In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may, but shall not be obligated
to, accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request,
(ii) the principal amount of each Money Market Borrowing must
be $10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending order of Money Market Margins or Money Market Absolute Rates,
as the case may be, in each case beginning with the lowest rate so
offered, and
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(iv) the Borrower may not accept any offer where the Agent has
advised the Borrower that such offer is described in subsection
2.03(d)(iii) or that otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks with
the same Money Market Margins or Money Market Absolute Rates, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing, each Bank participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section 9.01. Unless the Agent
determines that any applicable condition specified in Article 3 has not been
satisfied or waived in accordance with Section 9.05, the Agent will make the
funds so received from the Banks available to the Borrower no later than 3:00
P.M. (New York City time) on such date, in Federal or other funds immediately
available in New York City, as directed by the Borrower.
(c) If any Bank makes a new Loan hereunder on any day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank, such
Bank shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the Agent as
provided in subsection 2.04(b), 2.04(c), or remitted by the Borrower to the
Agent as provided in Section 2.12, as the case may be.
(d) If any Bank makes a Term Loan to the Borrower hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Revolving
Credit Loan from such Bank, such Bank shall apply the proceeds of its Term Loan
to make such repayment and only an amount equal to the difference (if any)
between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in subsection 2.04(b), 2.04(c),
or remitted by the Borrower to the Agent as provided in Section 2.12, as the
case may be.
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(e) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsection (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and, if such Bank shall not have
paid such amount to the Agent within two Domestic Business Days of the Agent's
demand therefor, the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at the Federal Funds Rate. If such Bank shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
(f) The failure of any Bank to make any Loan to be made by it on the
date specified therefor shall not relieve any other Bank of any obligation to
make a Loan on such date.
SECTION 2.05. Promissory Notes. (a) The Loans of each Bank shall be
evidenced by a single Promissory Note payable to the order of such Bank for the
account of its Applicable Lending Office in an amount equal to the aggregate
unpaid principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type be evidenced by a separate Promissory Note
in an amount equal to the aggregate unpaid principal amount of such Loans. Each
such Promissory Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Promissory Note" of
such Bank shall be deemed to refer to and include any or all of such Promissory
Notes, as the context may require.
(c) Upon receipt of each Bank's Promissory Note pursuant to Section
3.01(b), the Agent shall forward such Promissory Note to such Bank. Each Bank
shall record the date, amount, type and maturity of each Loan made by it and the
date and amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer or
enforcement of its Promissory Note, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding; provided that the failure of any Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Promissory Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Promissory Note and to
attach to and make a part of its Promissory Note a continuation of any such
schedule as and when required.
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SECTION 2.06. Maturity of Loans. (a) Each Revolving Credit Loan
shall mature, and the principal amount thereof shall be due and payable
(together with interest accrued thereon), on the Termination Date.
(b) Each Term Loan shall mature, and the principal amount thereof
shall be due and payable, together with accrued interest thereon, on the Final
Maturity Date.
(c) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable
(together with interest accrued thereon), on the last day of the Interest Period
applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for each such day. Such interest shall be payable at maturity, quarterly in
arrears on each Quarterly Payment Date prior to maturity and, with respect to
the principal amount of any Base Rate Loan converted to a CD Loan or a
Euro-Dollar Loan, on the date such amount is so converted. Any overdue principal
of or interest on any Base Rate Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due to but excluding
the date of actual payment, at a rate per annum equal to the sum of 2% plus the
rate otherwise applicable to Base Rate Loans for each such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Applicable Margin for each such day
plus the applicable Adjusted CD Rate for such Interest Period; provided that if
any CD Loan shall, as a result of the further proviso to the definition of
Interest Period, have an Interest Period of less than 30 days, such CD Loan
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on demand, for each
day from and including the date payment thereof was due to but excluding the
date of actual payment, at a rate per annum equal to the sum of 2% plus the
higher of (i) the sum of the Applicable Margin for each such day plus the
Adjusted CD Rate applicable to such Loan on the day before such payment was due
and (ii) the rate applicable to Base Rate Loans for each such day.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
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DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to the next higher
1/100 of 1%
The "CD BASE RATE" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"DOMESTIC RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"ASSESSMENT RATE" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) or any successor provision (a "BIF Member") to the
Federal Deposit Insurance Corporation (or any successor) for the Federal Deposit
Insurance Corporation's (or such successor's) insuring time deposits at offices
of such BIF Member in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the Assessment
Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for each
such day plus the applicable London Interbank Offered Rate for such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the
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London interbank market at approximately 11:00 A.M. (London time) two
Euro-Dollar Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the Euro-Dollar Loan of
such Euro-Dollar Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the
Applicable Margin for such day plus the London Interbank Offered Rate applicable
to such Loan on the day before such payment was due and (ii) the Applicable
Margin for such day plus the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than six months as
the Agent may select) deposits in dollars in an amount approximately equal to
such overdue payment due to each of the Euro-Dollar Reference Banks are offered
to such Euro-Dollar Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in subsection (a) or (b)
of Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per annum equal to the sum of
the London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.03. Each Money
Market Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the Money Market Absolute Rate quoted by the Bank making
such Loan in accordance with Section 2.03. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the Base Rate for each such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the
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Agent shall determine the relevant interest rate on the basis of the quotation
or quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
(h) The "APPLICABLE MARGIN" with respect to any Euro-Dollar Loan or CD
Loan at any date is the applicable percentage amount set forth in the table
below based on the Status on such date:
LEVEL
LEVEL I LEVEL II III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
------- -------- ------ -------- ------- --------
Euro-Dollar Loans 0.145% 0.190% 0.225% 0.250% 0.325% 0.4375%
CD Loans 0.270% 0.315% 0.350% 0.375% 0.450% 0.5625%
(i) For each day on which (i) the aggregate outstanding principal
amount of the Loans equals or exceeds one-third of the aggregate amount of the
Commitments or (ii) any Loans are outstanding after termination of the
Commitments (including, without limitation, pursuant to Section 2.01(b), the
Borrower shall pay additional interest on the aggregate principal amount of
Euro-Dollar Loans and CD Loans outstanding to it on such day at the applicable
rate per annum set forth in the table below based upon the Status on such day:
LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS LEVEL VI STATUS
-------------- --------------- ---------------- --------------- -------------- ---------------
0.05% 0.10% 0.10% 0.125% 0.125% 0.125%
Accrued interest under this subsection (i) shall be payable quarterly in arrears
on each Quarterly Payment Date and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
SECTION 2.08. Facility Fee. (a) The Borrower shall pay to the Agent for
the account of the Banks ratably a facility fee at the Facility Fee Rate. Such
facility fee shall accrue (i) from and including the date hereof to but
excluding the Termination Date (or earlier date of termination of the
Commitments in their entirety), on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including the Termination Date (or
earlier date of termination of the Commitments in their entirety) to but
excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
The "FACILITY FEE RATE" at any date is: (i) 0.055% if Level I Status
exists at such date, (ii) 0.060% if Level II Status exists at such date, (iii)
0.075% if Level III Status exists at such date, (iv) 0.100% if Level IV Status
exists at such date, (v) 0.125% if Level V Status exists at such date or (vi)
0.1875% if Level VI Status exists at such date.
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(b) Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Payment Date and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple thereof, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans. Promptly after receiving a notice pursuant to this Section, the Agent
shall notify each Bank of the contents thereof.
SECTION 2.10. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date, and any Revolving Credit Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. Optional Prepayments. (a) The Borrower may (i) upon at
least one Domestic Business Day's notice to the Agent, prepay any Group of Base
Rate Loans (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)), (ii) upon at least three Domestic Business Days'
notice to the Agent, subject to Section 2.13, prepay any Group of CD Loans and
(iii) upon at least three Euro-Dollar Business Days' notice to the Agent,
subject to Section 2.13, prepay any Group of Euro-Dollar Loans, in whole at any
time, or from time to time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to but not including the date of
prepayment. Each such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Group of Loans (or such Money Market
Borrowing).
(b) Except as provided in Section 2.11(a)(i), the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and once notice is so given to
the Banks, the Borrower's notice of prepayment shall not thereafter be revocable
by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 2:00 P.M. (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the respective accounts of the Banks. Whenever any payment of principal of, or
interest on, the Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic
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Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a different type of Loan (pursuant to Article 2, 6 or 8 (other than
Section 8.02)) on any day other than the last day of an Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.07(d), or if the Borrower fails to borrow, prepay, convert or continue
any Fixed Rate Loans after notice has been given to any Bank in accordance with
Section 2.04(a), 2.11(c) or 2.16 (other than as a result of default by such
Bank), the Borrower shall reimburse each Bank within 15 days after written
demand for any resulting loss or expense reasonably incurred by it (or by an
existing or prospective Participant in the related Loan) in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
prepay, convert or continue; provided that such Bank shall have delivered to the
Borrower a certificate specifying in reasonable detail the calculation of, and
the reasons for, the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Regulation D Compensation. Each Bank may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such
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Bank up to but not exceeding the excess of (i) (A) the applicable London
Interbank Offered Rate divided by (B) one minus the Euro-Dollar Reserve
Percentage over (ii) the applicable London Interbank Offered Rate. Any Bank
wishing to require payment of such additional interest (x) shall so notify the
Borrower and the Agent, in which case such additional interest on the
Euro-Dollar Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Dollar Business Days after the giving of such notice, and (y)
shall notify the Borrower at least five Euro-Dollar Business Days prior to each
date on which interest is payable on the Euro-Dollar Loans of the amount then
due it under this Section.
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
SECTION 2.16. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to subsection
2.16(d) of this Section and the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to CD Loans as of any Domestic Business Day
or to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to
continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.13 if any such conversion is effective on any day
other than the last day of an Interest Period applicable to such Loans;
and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or CD Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, subject to Section 2.13 if any such conversion is effective on
any day other than the last day of an Interest Period applicable to
such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent not later than 10:30 A.M. (New York City time) on
the third Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective (unless the
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relevant Loans are to be converted from Domestic Loans of one type to Domestic
Loans of the other type or are CD Loans to be continued as CD Loans for an
additional Interest Period, in which case such notice shall be delivered to the
Agent not later than 10:30 A.M. (New York City time) on the second Domestic
Business Day before such conversion or continuation is to be effective). A
Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each at least $10,000,000 (unless such
portion is comprised of Base Rate Loans). If no such notice is timely received
before the end of an Interest Period for any Group of CD Loans or Euro-Dollar
Loans, the Borrower shall be deemed to have elected that such Group of Loans be
converted to Base Rate Loans at the end of such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with the
applicable clause of subsection 2.16(a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans resulting from such conversion
are to be CD Loans or Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Euro-Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from
the Borrower pursuant to subsection (a) above, the Agent shall notify each Bank
of the contents thereof and such notice shall not thereafter be revocable by the
Borrower.
(d) The Borrower shall not be entitled to elect to convert any
Committed Loans to, or continue any Committed Loans for an additional Interest
Period as, CD Loans or Euro-Dollar Loans if (i) the aggregate principal amounts
of any Group of CD Loans or Euro-Dollar Loans created or continued as a result
of such election would be less than $10,000,000 or (ii) a Default shall have
occurred and be continuing when the Borrower delivers notice of such election to
the Agent.
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ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective on
the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party);
(b) receipt by the Agent of a duly executed Promissory Note of Tyco US
for the account of each Bank dated on or before the Effective Date complying
with the provisions of Section 2.05;
(c) receipt by the Agent of the Parent Guarantee, duly executed by the
Parent Guarantor;
(d) receipt by the Agent from each Subsidiary Guarantor under the
Existing Agreements of (i) a Subsidiary Guarantee in substantially the form of
Exhibit H hereto, duly executed by such Subsidiary Guarantor, (ii) an opinion of
counsel for such Subsidiary Guarantor, reasonably satisfactory to the Agent,
with respect to such Subsidiary Guarantee, substantially in the form of Exhibit
I hereto and covering such additional matters relating to such Subsidiary
Guarantee as the Required Banks may reasonably request and (iii) all documents
the Agent may reasonably request relating to the existence of such Subsidiary
Guarantee, the corporate authority for and the validity of such Subsidiary
Guarantee, and any other matters reasonably determined by the Agent to be
relevant thereto, all in form and substance reasonably satisfactory to the
Agent;
(e) receipt by the Agent of an opinion of each of (i) the General
Counsel of the Borrower, substantially in the form of Exhibit E-1 hereto, (ii)
the General Counsel of the Borrower on behalf of the Parent Guarantor,
substantially in the form of Exhibit E-2 hereto and (iii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, special Bermuda counsel for the Parent Guarantor, substantially in the
form of Exhibit K hereto;
(f) receipt by the Agent of an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special counsel for the Agent, substantially in the form of Exhibit F hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(g) receipt by the Agent of all documents the Agent may reasonably
request relating to the existence of the Borrower and the Parent Guarantor, the
corporate authority for and the validity of this Agreement, the Parent Guarantee
and the Promissory Notes, and any other
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matters reasonably determined by the Agent to be relevant hereto, all in form
and substance reasonably satisfactory to the Agent; and
(h) receipt by the Agent of evidence satisfactory to it that the
Acquisition shall be consummated in compliance with all applicable laws
substantially simultaneously with the effectiveness of this Agreement;
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
March 28, 1998.
SECTION 3.02. Existing Agreements. (a) On the Effective Date, the
commitments under the Existing Agreements shall be reduced to an aggregate
amount of $950,000,000 by ratably reducing the commitments under the Existing
364-Day Agreement to an aggregate amount of $450,000,000, without further action
by any party thereto. The Agent will promptly notify each of the other parties
hereto and to the Existing Agreements of the effectiveness of this Agreement.
(b) If after giving effect to the reduction of the commitments under
the Existing 364-Day Agreement pursuant to subsection 3.02(a), the aggregate
principal amount of loans outstanding under the Existing 364-Day Agreement would
exceed the aggregate amount of the commitments thereunder, Tyco US shall on the
Effective Date prepay loans thereunder in accordance with the terms of such
Existing 364-Day Agreement to the extent necessary to eliminate such excess.
(c) On the Effective Date, without further action by any party to the
Existing Agreements,
(i) the definition of "Level V Status" in Section 1.01 of
each of the Existing Agreements shall be amended to read as set forth
in the definition of "Level V Status" in Section 1.01 of this
Agreement;
(ii) a new definition of "Level VI Status" shall be added to
Section 1.01 of each of the Existing Agreements to read as set forth in
the definition of "Level VI Status" in Section 1.01 of this Agreement;
(iii) Section 1.01 of each of the Existing Agreements shall be
amended by deleting the defined terms "Restricted Payment" and "Stock
Equivalents" in their entirety;
(iv) the table in Section 2.07(h) of the Existing 364-Day
Agreement shall be amended to read as set forth in the table in Section
2.07(h) of this Agreement;
(v) the table in Section 2.07(h) of the Existing Five-Year
Agreement shall be amended to read as set forth in the table in Section
2.07(h) of the Related Agreement;
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(vi) Section 2.07(i) of each of the Existing Agreements
shall be amended to read as set forth in Section 2.07(i) of this
Agreement;
(vii) the second paragraph of Section 2.08(a) of the Existing
364-Day Agreement shall be amended to read as set forth in the second
paragraph of Section 2.08(a) of this Agreement;
(viii) the second paragraph of Section 2.08(a) of the Existing
Five-Year Agreement shall be amended to read as set forth in the second
paragraph of Section 2.08(a) of the Related Agreement;
(ix) clause (xii) of Section 5.07 of each of the Existing
Agreements shall be amended to read as set forth in clause (xii) of
Section 5.07 of this Agreement;
(x) Section 5.08 of each of the Existing Agreements shall
be amended to read as set forth in Section 5.08 of this Agreement;
(xi) Section 5.10 of each of the Existing Agreements shall
be amended by deleting the text of Section 5.10 in its entirety and
substituting therefor the words "Intentionally Omitted";
(xii) clause (i) of Section 5.11(k) of each of the Existing
Agreements shall be amended to read as set forth in clause (i) of
Section 5.10(k) of this Agreement;
(xiii) Section 1.01 of the Parent Guarantee (as defined in the
Existing Agreements) shall be amended by adding, in appropriate
alphabetical order, (A) a definition of "Consolidated Net Income" to
read as set forth in the definition of "Consolidated Net Income" in
Section 1.01 of the Parent Guarantee, (B) a definition of "Restricted
Payment" to read as set forth in the definition of "Restricted Payment"
in Section 1.01 of the Parent Guarantee and (C) a definition of "Stock
Equivalents" to read as set forth in the definition of "Stock
Equivalents" in Section 1.01 of the Parent Guarantee;
(xiv) subsections (a), (b) and (c) of Section 4.01 of the
Parent Guarantee (as defined in the Existing Agreements) shall be
amended to read, respectively, as set forth in subsections (a), (b) and
(c) of Section 4.01 of the Parent Guarantee;
(xv) the first sentence of Section 4.07 of the Parent
Guarantee (as defined in the Existing Agreements) shall be amended to
read as set forth in the first sentence of Section 4.07 of the Parent
Guarantee;
(xvi) clause (i) of Section 4.08(k) of the Parent Guarantee
(as defined in the Existing Agreements) shall be amended to read as set
forth in clause (i) of Section 4.08(k) of the Parent Guarantee;
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(xvii) the proviso of Section 4.10 of the Parent Guarantee
(as defined in the Existing Agreements) shall be amended to read as set
forth in the proviso of Section 4.10 of the Parent Guarantee;
(xviii) a new Section 4.11 shall be added to Article 4 of the
Parent Guarantee (as defined in the Existing Agreements) to read as set
forth in Section 4.11 of the Parent Guarantee; and
(xix) Section 5.01(b) of the Parent Guarantee (as defined in
the Existing Agreements) shall be amended by replacing the reference to
"Section 4.07" with a reference to "Section 4.07 or 4.11."
(d) The Banks which are parties to the Existing Agreements, comprising
the "Required Banks" as defined therein, hereby (i) waive any requirement of
notice of reduction of the Commitments pursuant to Section 2.09 of the Existing
Agreements and of prepayment of Loans to the extent necessary to give effect to
the subsections (a) and (b) above, provided that any such prepayment of Loans
shall be subject to Section 2.13 of the Existing Agreements and (ii) agree to
the amendments specified in subsection 3.02(c).
SECTION 3.03. Borrowings. The obligation of any Bank to make a Loan on
the occasion of any Borrowing is subject to the satisfaction (or waiver in
accordance with Section 9.05) of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate amount
of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
and each Guarantor contained in the Financing Documents (except the
representations and warranties set forth in Sections 4.04(a) and 4.11, which are
made only as of the date of this Agreement) shall be true in all material
respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in
subsections (b), (c) and (d) of this Section.
SECTION 3.04. New Borrower. Tyco US and Tyco Luxembourg may, upon not
less than three Domestic Business Days' notice to the Agent, elect that Tyco
Luxembourg shall become
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the Borrower hereunder and that Tyco US shall cease to be the Borrower (the
effective date of such election being herein called the "NEW BORROWER DATE"),
provided that the effectiveness of such election shall be subject to
satisfaction of each of the following conditions:
(a) receipt by the Agent of evidence satisfactory to it that not less
than 75% of the publicly held and privately placed debt securities of Tyco US
outstanding at December 22, 1997 (exclusive of Debt under the Existing
Agreements) shall have been refinanced with the proceeds of debt securities
issued by Tyco Luxembourg;
(b) the fact that, both immediately before and after giving effect to
such election, the conditions to borrowing specified in Sections 3.03(c) and
3.03(d) shall have been met, and the Agent shall have received a certificate of
a Responsible Officer to such effect;
(c) the fact that, prior to or simultaneously with the effectiveness
of such election, all Loans to Tyco US hereunder and all loans to Tyco US under
the Existing Agreements shall have been repaid, together with accrued interest
thereon and all other amounts payable hereunder and under the Existing Credit
Agreements;
(d) receipt by the Agent of counterparts of the New Borrower Agreement
duly executed by each of the parties thereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the Agent
in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party);
(e) receipt by the Agent of a duly executed Promissory Note of Tyco
Luxembourg for the account of each Bank dated on or before the New Borrower Date
complying with the provisions of Section 2.05;
(f) receipt by the Agent from each Required Significant Subsidiary of
Tyco Luxembourg which is not then a Subsidiary Guarantor of (i) a Subsidiary
Guarantee in substantially the form of Exhibit H hereto, duly executed by such
Subsidiary Guarantor, (ii) an opinion of counsel for such Subsidiary Guarantor,
reasonably satisfactory to the Agent, with respect to such Subsidiary Guarantee,
substantially in the form of Exhibit I hereto and covering such additional
matters relating to such Subsidiary Guarantee as the Required Banks may
reasonably request and (iii) all documents the Agent may reasonably request
relating to the existence of such Subsidiary Guarantee, the corporate authority
for and the validity of such Subsidiary Guarantee, and any other matters
reasonably determined by the Agent to be relevant thereto, all in form and
substance reasonably satisfactory to the Agent;
(g) receipt by the Agent of an opinion of counsel for Tyco Luxembourg,
which counsel and which opinion shall be reasonably satisfactory to the Agent,
substantially to the effect of Exhibit M hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request;
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(h) receipt by the Agent of all documents the Agent may reasonably
request relating to the existence of Tyco Luxembourg, the corporate authority
for and the validity of this Agreement and the Promissory Notes, and any other
matters reasonably determined by the Agent to be relevant hereto, all in form
and substance reasonably satisfactory to the Agent; and
(i) the fact that, if the Related Agreement is still in effect, Tyco
Luxembourg shall simultaneously become the "Borrower" thereunder.
On the New Borrower Date, subject to satisfaction of the conditions
specified in Section 3.03 and this Section 3.04, each of the Banks shall make a
Loan to Tyco Luxembourg in an amount equal to the aggregate principal amount of
Loans of such Bank then outstanding hereunder (or such other amount as Tyco
Luxembourg may specify in the applicable Notice of Borrowing), the proceeds of
which Loan will be substantially simultaneously applied, first, by Tyco
Luxembourg to fund the inter-company loan to Tyco US contemplated by the New
Borrower Agreement and, second, by Tyco US to repay all Loans outstanding to it
hereunder and, to the extent such Loan proceeds may be required to fund the
same, payment of accrued interest and other amounts then due hereunder and under
the Existing Agreements.
On the New Borrower Date, the commitments under the Existing Agreements
shall terminate without any further action by any party thereto. The Agent will
promptly notify each of the other parties hereto and to the Existing Agreements
of the New Borrower Date, and such notice shall be conclusive. The Banks which
are parties to the Existing Agreements, comprising the "Required Banks" as
defined therein, hereby waive any requirement of notice of termination of the
Commitments pursuant to Section 2.09 of the Existing Agreements and any
restriction on prepayment of loans thereunder to the extent necessary to give
effect to the subsection (c) above, provided that any such prepayment of Loans
shall be subject to Section 2.13 of the Existing Agreements. Promptly after the
New Borrower Date, each Bank shall return to Tyco US for cancellation the Note
of Tyco US previously delivered to such Bank hereunder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the
Banks that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation (in the case of Tyco US) or a company (in the case of Tyco
Luxembourg) duly incorporated and validly existing and (in the case of Tyco US)
in good standing under the laws of its jurisdiction of incorporation. The
Borrower has all corporate powers and all governmental licenses, authorizations,
consents and approvals (collectively, the "Consents") required to carry on its
business as now conducted, other than those powers and Consents, the failure of
which to be
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possessed or obtained could not, based upon the facts and circumstances in
existence at the time this representation and warranty is made or deemed made,
reasonably be expected to have a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Promissory Notes: (a) are within the Borrower's corporate
powers; (b) have been duly authorized by all necessary corporate action on the
part of the Borrower; (c) require no action by or in respect of, or filing with,
any governmental body, agency or official, in each case, on the part of the
Borrower; and (d) do not contravene, or constitute a default by the Borrower
under, any provision of (i) applicable law or regulation, (ii) the
organizational documents of the Borrower, or (iii) any agreement or instrument
evidencing or governing Debt of the Borrower or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Promissory Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of June 30, 1997 and the related consolidated statements of
income, of shareholders' equity and of cash flows for the fiscal year then
ended, reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P., copies of which have been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) Since June 30, 1997 there has been no material adverse change in
the business, financial position, results of operations or Prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could, based upon the facts
and circumstances in existence at the time this representation and warranty is
made or deemed made, reasonably be expected to have a Material Adverse Effect or
which in any manner draws into question the validity of the Financing Documents.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance, except
where the failure to so comply could not,
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based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect, with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any required contribution or payment to any Plan or Multiemployer Plan, or
made any amendment to any Plan, which has resulted in or could, based upon the
facts and circumstances in existence at the time this representation and
warranty is made or deemed made, reasonably be expected to result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred any liability under Title IV of
ERISA (other than a liability to the PBGC for premiums under Section 4007 of
ERISA), which could, based upon the facts and circumstances existing at the time
this representation and warranty is made or deemed made, reasonably be expected
to have a Material Adverse Effect.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances, and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, could not, based upon the facts and circumstances existing at the time
this representation and warranty is made or deemed made, reasonably be expected
to have a Material Adverse Effect.
SECTION 4.08. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes shown on such
returns or pursuant to any assessment received by the Borrower or any
Subsidiary, except those assessments which are being contested in good faith by
appropriate proceedings. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.09. Subsidiaries. Each of the Borrower's corporate
Consolidated Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, except
where the failure to be so incorporated, existing or in good standing could not,
based upon the facts and circumstances existing at the time this representation
and warranty is made or deemed made, reasonably be expected to have a Material
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Adverse Effect. Each such Subsidiary has all corporate powers and all Consents
required to carry on its business as now conducted, other than those powers and
Consents, the failure of which to be possessed or obtained could not, based upon
the facts and circumstances in existence at the time this representation and
warranty is made or deemed made, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.10. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.11. Full Disclosure. The factual information, reports,
financial statements, exhibits and schedules concerning the Borrower and its
Subsidiaries furnished by or on behalf of the Borrower and contained in the
Confidential Information Memorandum dated January 1998 furnished by ▇.▇. ▇▇▇▇▇▇
Securities Inc. to a limited number of banks which were being invited to
participate in this Agreement, do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Promissory Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the end
of each fiscal year of the Borrower, for so long as Tyco US is the Borrower,
consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated statements of
income, of shareholders' equity and of cash flows for such fiscal year, setting
forth, in each case in comparative form, the figures for the previous fiscal
year, all reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P. or other independent public
accountants of nationally recognized standing in a manner complying with the
applicable rules and regulations promulgated by the Securities and Exchange
Commission;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Borrower, for so
long as Tyco US is the Borrower, consolidated balance sheets of the Borrower and
its Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income for such quarter and the related consolidated
statements of income and consolidated statements of cash flows for the portion
of the Borrower's fiscal year ended at the end of such quarter, setting forth in
the case of such statements of income and of cash flows in comparative form the
figures for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject
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to normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency on behalf of the Borrower by the
chief financial officer, the chief accounting officer or the treasurer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in subsections (a) and (b) above, for so long as Tyco US
is the Borrower, and simultaneously with the delivery of each set of financial
statements referred to in subsections (a) and (b) of Section 4.01 of the Parent
Guarantee, for so long as Tyco Luxembourg is the Borrower, a certificate on
behalf of the Borrower signed by the chief financial officer, the chief
accounting officer or the treasurer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Sections 5.08 to 5.10, inclusive, on
the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth, in reasonable detail, the nature thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in subsection (a) above, a statement of the firm of
independent public accountants which reported on such financial statements
stating that, in making the audit necessary for the certification of such
financial statements, such firm of accountants has obtained no knowledge of any
Default, or if it has obtained knowledge of such Default, specifying the nature
and period of existence thereof; provided such firm of accountants shall not be
liable to any Person by reason of such firm's failure to obtain knowledge of any
Default which would not be disclosed in the course of an audit conducted in
accordance with generally accepted accounting principles;
(e) within five Domestic Business Days after any Responsible Officer
obtains knowledge of any Default, if such Default is then continuing, a
certificate on behalf of the Borrower signed by the chief financial officer, the
chief accounting officer or the treasurer of the Borrower setting forth, in
reasonable detail, the nature thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(f) promptly following the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all final registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and final reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(h) within 30 days after any Responsible Officer of the Borrower
obtains knowledge that any member of the ERISA Group (i) gave or was required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knew that the plan administrator of any
Plan has given or is required to give notice of any such reportable event, a
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46
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) received notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) received notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than under Sections 4007, 4071 and 4302 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice; (iv)
applied for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gave notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gave notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) failed
to make any required payment or contribution to any Plan or Multiemployer Plan
or made any amendment to any Plan which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a certificate
on behalf of the Borrower, signed by the chief financial officer, the chief
accounting officer or the treasurer of the Borrower setting forth, to the best
of its knowledge, in reasonable detail, the nature of such occurrence and
action, if any, which the Borrower or applicable member of the ERISA Group is
required or proposes to take;
(i) promptly following, and in any event within 10 days of, any change
in a Debt Rating by any Rating Agency, notice thereof;
(j) promptly upon any Responsible Officer of the Borrower obtaining
knowledge of the commencement of any action, suit or proceeding before any
court, arbitrator or other governmental body against the Borrower or any of its
Subsidiaries that, if adversely determined, could reasonably be expected to have
a Material Adverse Effect, a certificate on behalf of the Borrower specifying
the nature of such action, suit or proceeding and what action the Borrower is
taking or proposes to take with respect thereto; and
(k) from time to time, upon reasonable notice, such additional
information regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where (i) any such failure to so pay
or discharge could not, based upon the facts and circumstances in existence at
the time, reasonably be expected to have a Material Adverse Effect or (ii) such
liabilities or obligations may be contested in good faith by appropriate
proceedings. The Borrower will maintain, and will cause each Subsidiary to
maintain, in accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of such liabilities or obligations.
SECTION 5.03. Maintenance of Property; Insurance. (a) Except as
permitted by Section 5.04 or 5.11, the Borrower will keep, and will cause each
Subsidiary to keep, all property necessary in its business in good working order
and condition, ordinary wear and tear excepted,
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unless the failure to so keep could not, based upon the facts and circumstances
existing at the time, reasonably be expected to have a Material Adverse Effect.
(b) The Borrower will maintain, and will cause each Subsidiary to
maintain, with financially sound and reputable insurers, insurance with respect
to its assets and business against such casualties and contingencies, of such
types (including, without limitation, loss or damage, product liability,
business interruption, larceny, embezzlement or other criminal misappropriation)
and in such amounts as is customary in the case of similarly situated
corporations of established reputations engaged in the same or a similar
business, unless the failure to maintain such insurance could not, based upon
the facts and circumstances existing at the time, reasonably be expected to have
a Material Adverse Effect.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower (a) will continue, and will cause each Subsidiary to continue, to
engage in business of the same general type as now conducted by the Borrower and
its Subsidiaries and reasonably related extensions thereof, and (b) will
preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect (x) their
respective corporate existence and (y) their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business, unless in
the case of either the failure of the Borrower to comply with subclause (b) (y)
of this Section 5.04 or the failure of a Subsidiary to comply with clauses (a)
or (b) of this Section 5.04, such failure could not, based upon the facts and
circumstances existing at the time, reasonably be expected to have a Material
Adverse Effect; provided that nothing in this Section 5.04 shall prohibit (i)
the merger or consolidation of a Subsidiary with or into the Borrower or a
Wholly-Owned Consolidated Subsidiary, (ii) the sale, lease, transfer, assignment
or other disposition by a Subsidiary of all or any part of its assets to the
Borrower or to a Wholly-Owned Consolidated Subsidiary, (iii) the merger or
consolidation of a Subsidiary with or into a Person other than the Borrower or a
Wholly-Owned Consolidated Subsidiary, if the Person surviving such consolidation
or merger is a Subsidiary and immediately after giving effect thereto, no
Default shall have occurred and be continuing, (iv) the sale, lease, transfer,
assignment or other disposition by a Subsidiary of all or any part of its assets
to a Person other than the Borrower or a Wholly-Owned Consolidated Subsidiary if
the Person to which such sale, lease, transfer, assignment or other disposition
is made is a Subsidiary and immediately after giving effect thereto, no Default
shall have occurred and be continuing, (v) any transaction permitted pursuant to
Section 5.11, (vi) the termination of the corporate existence of any Subsidiary
if the Borrower in good faith determines that such termination is in the best
interest of the Borrower and is not materially disadvantageous to the Banks and
(vii) the sale, lease, transfer, assignment or other disposition (including any
such transaction by way of merger or consolidation) by the Borrower of all or
any part of its assets to a Person other than the Borrower or a Subsidiary if
(A) immediately after giving effect thereto, no Default shall have occurred and
be continuing and (B) the Borrower is a Subsidiary of such Person or the
Borrower and such Person are Subsidiaries of the same Person.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules,
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regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder) except where (a) noncompliance therewith could not, based upon the
facts and circumstances in existence at the time, reasonably be expected to have
a Material Adverse Effect or (b) the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records;
Confidentiality. (a) The Borrower will keep, and will cause each Subsidiary to
keep, proper books of record and account in which true and correct entries shall
be made of its business transactions and activities so that financial statements
that fairly present its business transactions and activities can be properly
prepared in accordance with generally accepted accounting principles.
(b) The Borrower will permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense to visit and inspect any of
their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, all upon reasonable notice to the Borrower, at such reasonable
times and as often as may reasonably be requested by any Bank.
(c) Each Bank and the Agent shall, by its receipt of Confidential
Information (as defined below) pursuant to or in connection with this Agreement
or its exercise of any of its rights hereunder, be deemed to have agreed (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to (i) keep such information confidential, (ii) (except as
permitted by clause (iii) of this Section 5.06(c)) not disclose such information
to any Person other than an officer, director, employee, legal counsel,
independent auditor or authorized agent or advisor of the Agent or such Bank
needing to know such information (it being understood that any such officer,
director, employee, legal counsel, independent auditor or authorized agent or
advisor shall be informed by the Agent or such Bank of the confidential nature
of such information), (iii) not disclose such information to any Assignee or
Participant (or prospective Assignee or Participant), unless such Assignee or
Participant (or prospective Assignee or Participant) shall agree in writing to
be bound by the provisions of this Section 5.06(c) and (iv) not use any such
information except for purposes relating to this Agreement or the Notes. The
term "Confidential Information" shall mean non-public information furnished by
or on behalf of the Borrower or any of its Subsidiaries to the Agent, any Bank
or other Person exercising rights hereunder or required to be bound hereby
(collectively "Recipients"), but shall not include any such information which
(1) has become or hereafter becomes available to the public other than as a
result of a disclosure by a Recipient, or (2) has become or hereafter becomes
available to a Recipient, on a non-confidential basis, from a source other than
the Borrower or any of its Subsidiaries (or any of their respective
representatives or agents) or any Recipient, which source, to the knowledge of
the Recipient, is not prohibited from disclosing such information by a
confidentiality agreement with, or other legal or fiduciary obligation to, the
Borrower or its Subsidiaries.
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The restrictions set forth in the immediately preceding paragraph shall
not prevent the disclosure by a Recipient of any such information:
(A) with the prior written consent of the
Borrower,
(B) at the request of a bank regulatory agency
or in connection with an examination by bank examiners, or
(C) upon order of any court or administrative
agency of competent jurisdiction, to the extent required by
such order and not effectively stayed on appeal or otherwise,
or as otherwise required by law; provided that in the case of
any intended disclosure under this clause (C), the Recipient
shall (unless otherwise required by applicable law) give the
Borrower not less than five Domestic Business Days prior
notice (or such shorter period as may, in the good faith
discretion of the Recipient, be reasonable under the
circumstances or may be required by any court or agency under
the circumstances), specifying the Confidential Information
involved and stating such Recipient's intention to disclose
such Confidential Information (including the manner and extent
of such disclosure) in order to allow the Borrower an
opportunity to seek an appropriate protective order.
Each Recipient shall agree that, in addition to all other remedies
available, the Borrower shall be entitled to specific performance and injunctive
and other equitable relief as a remedy for any breach of this Section 5.06(c) by
such Recipient.
SECTION 5.07. Limitation on Restrictions on Subsidiary Dividends and
Other Distributions. The Borrower will not, and will not permit any Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distributions on its capital stock or any
other interest or participation in its profits, owned by the Borrower or any
Subsidiary, or pay any Debt owed to the Borrower or any Subsidiary, (b) make
loans or advances to the Borrower or any Subsidiary or (c) transfer any of its
properties or assets to the Borrower or any Subsidiary, except for such
encumbrances or restrictions existing under or by reason of
(i) applicable law, agreements with foreign governments
with respect to assets located in their jurisdiction, or condemnation
or eminent domain proceedings,
(ii) any of the Financing Documents,
(iii) (A) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower
or a Subsidiary, or (B) customary restrictions imposed on the transfer
of copyrighted or patented materials or provisions in agreements that
restrict the assignment of such agreements or any rights thereunder,
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(iv) provisions contained in the instruments evidencing or
governing Debt or other obligations or agreements, in each case
existing on the Effective Date,
(v) provisions contained in documents evidencing or
governing any Permitted Receivables Transaction,
(vi) provisions contained in instruments evidencing or
governing Debt or other obligations or agreements of any Person, in
each case, at the time such Person (A) shall be merged or consolidated
with or into the Borrower or any Subsidiary, (B) shall sell, transfer,
assign, lease or otherwise dispose of all or substantially all of such
Person's assets to the Borrower or a Subsidiary, or (C) otherwise
becomes a Subsidiary, provided that in the case of clause (A), (B) or
(C), such Debt, obligation or agreement was not incurred or entered
into, or any such provisions adopted, in contemplation of such
transaction,
(vii) provisions contained in instruments amending,
restating, supplementing, extending, renewing, refunding, refinancing,
replacing or otherwise modifying, in whole or in part (collectively,
"Refinancing"), instruments referred to in clauses (ii), (iv) and (vi)
of this Section 5.07, so long as such provisions are, in the good faith
determination of the Borrower's board of directors, not materially more
restrictive than those contained in the respective instruments so
Refinanced,
(viii) provisions contained in any instrument evidencing or
governing Debt or other obligations of a Subsidiary Guarantor,
(ix) any encumbrances and restrictions with respect to a
Subsidiary imposed in connection with an agreement which has been
entered into for the sale or disposition of such Subsidiary or its
assets, provided such sale or disposition otherwise complies with this
Agreement,
(x) the subordination (pursuant to its terms) in right
and priority of payment of any Debt owed by any Subsidiary (the
"Indebted Subsidiary") to the Borrower or any other Subsidiary, to any
other Debt of such Indebted Subsidiary, provided (A) such Debt is
permitted under this Agreement and (B) the Borrower's board of
directors has determined, in good faith, at the time of the creation of
such encumbrance or restriction, that such encumbrance or restriction
could not, based upon the facts and circumstances in existence at the
time, reasonably be expected to have a Material Adverse Effect,
(xi) provisions governing preferred stock issued by a
Subsidiary, provided that such preferred stock is permitted under
Section 5.08, and
(xii) provisions contained in debt instruments obligations
or other agreements of any Subsidiary which are not otherwise permitted
pursuant to clauses (i) through (xi) of
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this Section 5.07, provided that the aggregate investment of the
Borrower in all such Subsidiaries (determined in accordance with
generally accepted accounting principles) shall at no time exceed the
greater of (a) $300,000,000 or (b) 10% of Consolidated Tangible Net
Worth.
The provisions of this Section 5.07 shall not prohibit (x) Liens not prohibited
by Section 5.10 or (y) restrictions on the sale or other disposition of any
property securing Debt of any Subsidiary, provided such Debt is otherwise
permitted by this Agreement.
SECTION 5.08. Debt. Consolidated Debt will at no time exceed (x) prior
to March 31, 1999, 65% and (y) on and after March 31, 1999, 52.5% of
Consolidated Total Capitalization. The total Debt of all Consolidated
Subsidiaries (excluding (i) Debt of a Consolidated Subsidiary to the Borrower or
to a Wholly-Owned Consolidated Subsidiary, (ii) Debt of a Subsidiary Guarantor
and (iii) Debt of any Person (a) existing at the time such Person becomes a
Subsidiary or merges into a Subsidiary and (b) not created in contemplation of
such event, but only for a period ending 180 days after the date of such event)
will at no time exceed $400,000,000 in aggregate outstanding principal amount.
For purposes of this Section any preferred stock of a Consolidated Subsidiary
held by a Person other than the Borrower or a Wholly-Owned Consolidated
Subsidiary shall be included, at the higher of its voluntary or involuntary
liquidation value, in "Consolidated Debt" and in the "Debt" of such Consolidated
Subsidiary.
SECTION 5.09. Fixed Charge Coverage. The ratio of Consolidated EBIT to
Consolidated Interest Expense will not, for any period of four consecutive
fiscal quarters, be less than 2.5 to 1.
SECTION 5.10. Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) any Lien existing on any asset on the Effective Date securing
Debt outstanding on the Effective Date;
(b) any Lien existing on any asset of, or capital stock of, or
other ownership interest in, any Person (such capital stock and other ownership
interests are collectively referred to herein as "Stock") at the time such
Person becomes a Subsidiary, which Lien was not created in contemplation of such
event;
(c) any Lien on any asset securing the payment of all or part of
the purchase price of such asset upon the acquisition thereof by the Borrower or
a Subsidiary or securing Debt (including any obligation as lessee incurred under
a capital lease) incurred or assumed by the Borrower or a Subsidiary prior to,
at the time of or within one year after such acquisition (or in the case of real
property, the completion of construction (including any improvements on an
existing property) or the commencement of full operation of such asset or
property, whichever is later), which Debt is incurred or assumed for the purpose
of financing all or part of the cost of acquiring such asset or, in the case of
real property, construction or improvements thereon; provided, that in the case
of any such acquisition, construction or improvement, the Lien shall
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not apply to any asset theretofore owned by the Borrower or a Subsidiary, other
than assets so acquired, constructed or improved;
(d) any Lien existing on any asset or Stock of any Person at the
time such Person is merged or consolidated with or into the Borrower or a
Subsidiary which Lien was not created in contemplation of such event;
(e) any Lien existing on any asset or Stock of any Person at the
time of acquisition thereof by the Borrower or a Subsidiary, which Lien was not
created in contemplation of such acquisition;
(f) any Lien arising out of the Refinancing of any Debt secured by
any Lien permitted by any of the subsections (a) through (e) of this Section
5.10, provided the principal amount of Debt is not increased and is not secured
by any additional assets, except as provided in the last sentence of this
Section 5.10;
(g) any Lien to secure Debt of a Subsidiary to the Borrower or to
a Wholly-Owned Consolidated Subsidiary;
(h) any Lien created pursuant to a Permitted Receivables
Transaction;
(i) any Lien in favor of the United States or any other country
(or any department, agency, instrumentality or political subdivision of the
United States or any other country) securing obligations arising in connection
with partial, progress, advance or other payments pursuant to any contract,
statute, rule or regulation or securing obligations incurred for the purpose of
financing all or any part of the purchase price (including the cost of
installation thereof or, in the case of real property, the cost of construction
or improvement or installation of personal property thereon) of the asset
subject to such Lien (including, but not limited to, any Lien incurred in
connection with pollution control, industrial revenue or similar financings);
(j) Liens arising in the ordinary course of its business which (i)
do not secure Debt, (ii) do not secure any single obligation in an amount
exceeding $50,000,000 and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the operation of
its business; and
(k) Liens not otherwise permitted by the foregoing clauses (a)
through (j) of this Section 5.10 securing Debt (without duplication) in an
aggregate principal amount at any time outstanding not to exceed an amount equal
to the greater of (i) $300,000,000 or (ii) 10% of Consolidated Tangible Net
Worth.
It is understood that any Lien permitted to exist on any asset pursuant to the
foregoing provisions of this Section 5.10 may attach to the proceeds of such
asset and, with respect to Liens permitted pursuant to subsections (a), (b),
(d), (e), (f) (but only with respect to the Refinancing of a Debt secured by a
Lien permitted pursuant to subsections (a), (b), (d) or (e)) or (g) of this
Section 5.10,
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may attach to an asset acquired in the ordinary course of business as a
replacement of such former asset.
SECTION 5.11. Consolidations, Mergers and Sales of Assets. (a) The
Borrower will not (i) consolidate or merge with or into any other Person or (ii)
sell, lease or otherwise transfer all or substantially all of its assets to any
other Person, unless
(A) the Borrower or a Subsidiary or (in the case
of Tyco US) a Domestic Parent is the surviving corporation;
(B) the Person (if other than the Borrower)
formed by such consolidation or into which the Borrower is
merged, or the Person which acquires by sale or other
transfer, or which leases, all or substantially all of the
assets of the Borrower (any such Person, the "Successor"),
shall be organized and existing under the laws of (x) in the
case of Tyco US, the United States, any state thereof or the
District of Columbia and (y) in the case of Tyco Luxembourg,
Luxembourg, and shall expressly assume, in a writing executed
and delivered to the Agent for delivery to each of the Banks,
in form reasonably satisfactory to the Agent, the due and
punctual payment of the principal of and interest on the
Promissory Notes and the performance of the other obligations
under this Agreement and the Promissory Notes on the part of
the Borrower to be performed or observed, as fully as if such
Successor were originally named as the Borrower in this
Agreement;
(C) immediately after giving effect to such
transaction, no Default shall have occurred and be continuing;
and
(D) the Borrower has delivered to the Agent a
certificate on behalf of the Borrower signed by a Responsible
Officer and an opinion of counsel (which counsel may be an
employee of the Borrower), each stating that all conditions
provided in this Section 5.11 relating to such transaction
have been satisfied.
The foregoing provisions of this Section 5.11 shall not restrict the
merger or consolidation of any Subsidiary with and into the Borrower.
Upon the satisfaction (or waiver in accordance with Section 9.05) of
the conditions set forth in this Section 5.11, the Successor shall succeed, and
may exercise every right and power of, the Borrower under this Agreement and the
Promissory Notes with the same effect as if the Successor had been originally
named as the Borrower herein and in the Promissory Notes, and the Borrower shall
be relieved of its obligations under this Agreement and the Promissory Notes.
(b) The Borrower will not, and will not permit any Subsidiary to,
sell, lease or otherwise transfer, in any transaction or series of related
transactions, to any Person (other than the Borrower, a Subsidiary, a Person of
which the Borrower is a Subsidiary or a Subsidiary of such a Person) any
Property (including, without limitation, the stock of any Subsidiary) having a
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net book value in excess of 15% of Consolidated Assets determined as of the end
of the fiscal quarter of the Borrower most recently ended at the time of such
sale or other transaction, or Property (including without limitation, stock of a
Subsidiary) which contributed in excess of 15% of Consolidated EBIT for the
fiscal year of the Borrower most recently ended at the time of such sale or
other transaction.
SECTION 5.12. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for its general corporate purposes,
including, without limitation, capital expenditures and (subject to the
following sentence) acquisitions. None of such proceeds will be used, directly
or indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of Regulation U.
SECTION 5.13. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any
Affiliate (collectively, "AFFILIATE TRANSACTIONS"); provided, however, that the
foregoing provisions of this Section 5.13 shall not prohibit the Borrower or any
of its Subsidiaries from: (a) making sales to or purchases from any Affiliate
and, in connection therewith, extending credit or making payments, or from
making payments for services rendered by any Affiliate, if such sales or
purchases are made or such services are rendered in the ordinary course of
business and on terms and conditions at least as favorable to the Borrower or
such Subsidiary as the terms and conditions which the Borrower would reasonably
expect to be obtained in a similar transaction with a Person which is not an
Affiliate at such time, (b) making payments of principal, interest and premium
on any Debt of the Borrower or such Subsidiary held by an Affiliate if the terms
of such Debt are at least as favorable to the Borrower or such Subsidiary as the
terms which the Borrower would reasonably expect to have been obtained at the
time of the creation of such Debt from a lender which was not an Affiliate, (c)
participating in, or effecting any transaction in connection with, any joint
enterprise or other joint arrangement with any Affiliate if the Borrower or such
Subsidiary participates in the ordinary course of its business and on a basis no
less advantageous than the basis on which such Affiliate participates, (d)
paying or granting reasonable compensation and benefits to any director,
officer, employee or agent of the Borrower or any Subsidiary, (e) paying
reasonable legal fees and expenses to a law firm of which an Affiliate is a
member or (f) engaging in any Affiliate Transaction not otherwise addressed in
subsections (a) - (e) of this Section 5.13, the consummation of which could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.14. Additional Subsidiary Guarantors. If, subsequent to the
New Borrower Date, any Person shall become a Required Significant Subsidiary of
the Borrower, the Borrower shall cause such Person to become a Subsidiary
Guarantor within 30 days after such Person became a Significant Subsidiary of
the Borrower.
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ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Defaults. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing and shall not
have been waived in accordance with Section 9.05:
(a) the Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within three Domestic Business Days of the due date
thereof any interest on any Loan or any fees payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.08, 5.09 or 5.14;
(c) the Borrower shall fail to observe or perform any covenant
contained in Section 5.07 or Sections 5.10 to 5.13, inclusive, and such failure
shall not be remedied within five days after any Responsible Officer obtains
actual knowledge thereof;
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a),
(b) or (c) of this Section 6.01) for 10 days after notice thereof has been given
to the Borrower by the Agent at the request of any Bank;
(e) any representation, warranty, certification or statement made
in writing by the Borrower or any Guarantor in the Financing Documents or in any
certificate, financial statement or other document required to be delivered to
the Agent or any of the Banks pursuant to the Financing Documents shall prove to
have been incorrect in any material respect when made (or deemed made);
(f) there shall occur any Guarantor Event of Default (as defined
in the Parent Guarantee);
(g) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Debt when due (after giving effect to any applicable
grace period);
(h) any event or condition shall occur that results in the
acceleration of the maturity of any Material Debt or that entitles the holder or
holders of any Material Debt or any Person acting on behalf of such holder or
holders to accelerate the maturity thereof;
(i) the Borrower or any Significant Subsidiary shall (i) commence
a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or substantially all of its property, or (ii) consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other similar proceeding
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commenced against it, or (iii) make a general assignment for the benefit of
creditors, or (iv) fail generally to pay its debts as they become due, or (v)
take corporate action authorizing any of the foregoing;
(j) (i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or substantially all of its property, and such
involuntary case or other proceeding shall remain in effect and undismissed and
unstayed for a period of 60 consecutive days or (ii) an order for relief shall
be entered against the Borrower or any Significant Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(k) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
(l) a judgment or order for the payment of money in excess of
$30,000,000 (after deducting amounts covered by insurance, except to the extent
that the insurer providing such insurance has declined such coverage) shall be
rendered against the Borrower or any Subsidiary and, within 60 days after entry
thereof, such judgment or order is not discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of any such stay, such
judgment or order is not discharged;
(m) the Borrower shall cease to be a Wholly-Owned Consolidated
Subsidiary of the Parent Guarantor;
(n) the Borrower or any Subsidiary shall fail to make any payment
owing by it in respect of any performance bond, performance guaranty or bank
guaranty issued in lieu of a performance bond or performance guaranty (other
than a payment which is disputed by the Borrower or such Subsidiary in good
faith), and the aggregate of all such defaulted payments shall exceed
$50,000,000 at any one time for the Borrower and its Subsidiaries; or
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(o) any Financing Document shall cease to be valid and enforceable
(except for the termination of a Subsidiary Guarantee in accordance with its
terms); or any Obligor shall so assert in writing;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 60% in aggregate amount of the Commitments, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Promissory Notes evidencing more than 60% in
aggregate principal amount of the Loans, by notice to the Borrower declare the
Promissory Notes (together with accrued interest thereon) to be, and the
Promissory Notes shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that in the case of any of the Events of
Default specified in subsection (i) or (j) above with respect to the Borrower,
without any notice to the Borrower or any other act by the Agent or the Banks,
the Commitments shall thereupon terminate and the Promissory Notes (together
with accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.01(d) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Financing Documents as are delegated to the
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. ▇▇▇▇▇▇ Guaranty Trust Company of
New York (and any successor acting as Agent) in its capacity as a Bank hereunder
shall have the same rights and powers under the Financing Documents as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York (and any successor
acting as Agent) and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent under the
Financing Documents are only those expressly set forth therein. Without limiting
the generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article 6.
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SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Agent nor
any of its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower or any Guarantor; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Subsidiary Guarantees, the Parent Guarantee,
the Promissory Notes or any other instrument or writing furnished in connection
herewith. The Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed by it in good faith to be genuine or to
be signed by or on behalf of the proper party or parties. Without limiting the
generality of the foregoing, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with the Financing Documents or any action taken
or omitted by such indemnitees thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the Borrower and its Subsidiaries and its own decision to
enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent, subject to
the consent of the Borrower. If no
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successor Agent shall have been so appointed by the Required Banks and consented
to by the Borrower and shall have accepted such appointment within 45 days after
the retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Financing
Documents. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was acting as the Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to the Agent for its
own account fees in the amounts and at the times previously agreed upon in
writing between the Borrower and the Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any CD Loan,
Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference Banks
in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks holding
50% or more of the aggregate amount of the affected Loans advise the Agent that
the Adjusted CD Rate or the London Interbank Offered Rate, as the case may be,
as determined by the Agent will not adequately and fairly reflect the cost to
such Banks of funding their CD Loans or Euro-Dollar Loans, as the case may be,
for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon, until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist (which the Agent agrees to do promptly
upon such circumstances ceasing to exist), (i) the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, or to continue or
convert outstanding Loans as or into CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended and (ii) each outstanding CD Loan or Euro-Dollar
Loan, as the case may be, shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Agent at least one Domestic Business Day before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
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previously been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money
Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing
shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this Agreement,
any Bank has determined in its reasonable judgment that the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency,
shall make it unlawful or impossible for such Bank (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice specifying the
circumstances giving rise to such suspension to the other Banks and the
Borrower, whereupon, until such Bank notifies the Borrower and the Agent that
the circumstances giving rise to such suspension no longer exist (which such
Bank agrees to do promptly upon such circumstances ceasing to exist), the
obligation of such Bank to make Euro-Dollar Loans, or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank in
the good faith exercise of its discretion, be otherwise disadvantageous to such
Bank. If such notice is given, each Euro-Dollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Euro-Dollar Loan if such
Bank may lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan
to such day or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to such
day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
the date of this Agreement, in the case of any Committed Loan or any obligation
to make Committed Loans or (y) the date of the related Money Market Quote, in
the case of any Money Market Loan, any Bank has determined in its reasonable
judgment that the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement with respect to which such Bank is
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entitled to compensation during the relevant Interest Period under Section
2.15), special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, such Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or on the United States market
for certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Promissory Note or its obligation to make
Fixed Rate Loans and the result of any of the foregoing is to increase the cost
to such Bank (or its Applicable Lending Office) of making or maintaining any
Fixed Rate Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement or under its
Promissory Note with respect thereto, by an amount deemed by such Bank to be
material to such Bank, then, within 15 days after written demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after the date of this
Agreement, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including any determination by any such authority, central
bank or comparable agency that, for purposes of capital adequacy requirements,
the Commitments hereunder do not constitute commitments with an original
maturity of one year or less), has or would have the effect of reducing the rate
of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after written demand by such Bank (with a copy to the Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date of this Agreement,
which will entitle such Bank to compensation pursuant to this Section; provided
that (i) if any Bank fails to give such notice within 90 days after it obtains
actual knowledge of such an event, such Bank shall only be entitled to payment
under this Section 8.03 for costs incurred from and after the date 90 days prior
to the date that such Bank does give such notice and (ii) each such Bank will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank in the good faith exercise of its discretion, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth in reasonable detail the additional amount
or amounts to be paid to it hereunder and the basis used to determine such
amounts shall be conclusive in the absence of manifest error. In determining
such amount, such Bank will use
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reasonable averaging and attribution methods and will have a reasonable basis
for any assumptions it makes in connection therewith.
SECTION 8.04. Taxes. (a) Any and all payments by the Borrower to or for
the account of any Bank or the Agent hereunder or under any Promissory Note
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank and
the Agent, taxes imposed on or measured by its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on or measured by its income, and
franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as its "TAXES", and all such
excluded taxes being hereinafter referred to as its "DOMESTIC TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Promissory Note to any Bank or the Agent, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04 such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent,
at its address referred to in Section 9.01, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any
Promissory Note or from the execution or delivery of, or otherwise with respect
to, this Agreement or any other Financing Document (hereinafter referred to as
"OTHER TAXES").
(c) The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04 paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. In addition, on and after the New Borrower Date, the Borrower
agrees to indemnify the Agent and each Bank for all Domestic Taxes and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, in each case to the extent that such Domestic Taxes result from
any payment or indemnification pursuant to this Section for (i) Taxes or Other
Taxes imposed by any jurisdiction other than the United States or (ii) Domestic
Taxes of the Agent or such Bank, as the case may be. This indemnification shall
be made within 15 days from the date such Bank or the Agent (as the case may be)
makes demand therefor.
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(d) At the times indicated herein, each Bank organized under the laws
of a jurisdiction outside the United States shall provide the Borrower with
Internal Revenue Service form 1001 or 4224 (in each case accompanied by any
statements which may be required under applicable Treasury regulations), as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to receive payments under this Agreement
(i) without deduction or withholding of any United States federal income taxes
or (ii) subject to a reduced rate of United States federal withholding tax,
unless, in each case of clause (i) and (ii) of this Section 8.04(d), an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders such forms inapplicable or which would prevent the Bank
from duly completing and delivering any such form with respect to it and the
Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of such taxes. Such forms shall be
provided (x) on or prior to the date of the Bank's execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof,
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and (y) on or before the date that such form expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent form
so delivered by the Bank. If the form provided by a Bank at the time such Bank
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, United States withholding tax at such
rate shall be considered excluded from "TAXES" as defined in Section 8.04(a). In
addition, to the extent that for reasons other than a change of treaty, law or
regulation any Bank becomes subject to an increased rate of United States
interest withholding tax while it is a party to this Agreement, United States
withholding tax at such increased rate shall be considered excluded from "Taxes"
as defined in Section 8.04(a).
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form in accordance with Section 8.04(d)
(unless such failure is excused by the terms of Section 8.04(d)), such Bank
shall not be entitled to indemnification under Section 8.04(a) or 8.04(c) with
respect to Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.04, then such Bank will
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the judgment of such Bank in the good faith exercise of its discretion, is
not otherwise disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make, or to continue or convert
outstanding Loans as or to Euro-Dollar Loans has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03 or
8.04 with respect to its CD Loans or Euro-Dollar Loans and the Borrower
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shall, by at least five Euro-Dollar Business Days' prior notice to such Bank
through the Agent, have elected that the provisions of this Section shall apply
to such Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist (which such Bank agrees to do promptly upon such circumstances
ceasing to exist), all Loans which would otherwise be made by such Bank as (or
continued as or converted to) CD Loans or Euro-Dollar Loans, as the case may be,
shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other Banks).
If such Bank notifies such Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a CD Loan or Euro-Dollar Loan,
as the case may be, on the first day of the next succeeding Interest Period
applicable to the related CD Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If any Bank (i) has demanded
compensation for increased costs pursuant to Section 8.03 or 8.04 or is entitled
to payments under Section 8.04(a) or (ii) has determined that the making or
maintaining of any Euro-Dollar Loan has become unlawful or impossible pursuant
to Section 8.02 and similar additional interest or compensation has not been
demanded by, or a similar determination has not been made by, all of the Banks,
the Borrower shall have the right (with the assistance of the Agent) to
designate an Assignee which is not an Affiliate of the Borrower to purchase for
cash, pursuant to an Assignment and Assumption Agreement in substantially the
form of Exhibit G hereto, the outstanding Loans and Commitment of such Bank and
to assume all of such Bank's other rights and obligations hereunder without
recourse to or warranty by, or expense to, such Bank, for a purchase price equal
to the principal amount of all of such Bank's outstanding Loans plus any accrued
but unpaid interest thereon and the accrued but unpaid fees in respect of that
Bank's Commitment hereunder plus such amount, if any, as would be payable
pursuant to Section 2.13 if the outstanding Loans of such Bank were prepaid in
their entirety on the date of consummation of such assignment.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party provided for hereunder shall be in writing (including, without
limitation, bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower or the Agent, at
its address or facsimile or telex number set forth on the signature pages
hereof, (y) in the case of any Bank, at its address or facsimile or telex number
set forth in its Administrative Questionnaire or (z) in the case of any party,
such other address or facsimile or telex number as such party may hereafter
specify for the purpose by notice to the Agent and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by facsimile, when such
facsimile is transmitted
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to the facsimile number specified in this Section 9.01 and electronic,
telephonic or other appropriate confirmation of receipt is received by the
sender, (iii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iv) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article 2 or Article 8 shall
not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any Bank
in exercising any right, power or privilege hereunder or under any other
Financing Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
and therein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Agent, in connection with the
preparation and administration of the Financing Documents, any waiver or consent
hereunder or any amendment thereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Agent and each Bank, including reasonable fees and disbursements
of counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agent and each Bank, their
respective Bank Affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses, including, without limitation, the reasonable fees and disbursements
of counsel, which may be incurred by such Indemnitee (whether or not such
Indemnitee shall be designated a party thereto) arising out of any
investigative, administrative or judicial proceeding (brought or threatened)
relating to or arising out of the Financing Documents, the arrangement,
administration, performance or enforcement thereof or any actual or proposed use
of proceeds of Loans hereunder; provided that no Indemnitee shall have the right
to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction; provided
further that no Indemnitee shall have the right to be indemnified hereunder in
connection with any proceedings between it and another Indemnitee which does not
relate to the Borrower.
(c) If any proceeding or claim shall be brought or asserted against any
Indemnitee in respect of which indemnity may be sought pursuant to the preceding
subsection, such Indemnitee shall promptly notify the Borrower. The Borrower
shall not be liable for any costs or expenses in connection with any settlement
entered into without its consent.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate
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amount of principal and interest due with respect to any Promissory Note held by
it which is greater than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with respect to any
Promissory Note held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Promissory Notes held
by the other Banks, and such other adjustments shall be made, as may be
required, so that all such payments of principal and interest with respect to
the Promissory Notes held by the Banks shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness under the Promissory Notes.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement
or the Promissory Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for termination of any Commitment,
(iv) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Promissory Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement or (v) release the Parent Guarantor from
its obligations under the Parent Guarantee.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii) or (iv) of Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement and subject to subsection (e), (f) and (g) below, be
entitled to the benefits
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of Article 8 with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection 9.06(c) or 9.06(d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (in an amount
equivalent to an original Commitment of not less than $10,000,000) of all, of
its rights and obligations under this Agreement and the Promissory Notes, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto executed by such Assignee and such transferor Bank, with (and subject to)
the subscribed consent of the Borrower and the Agent, which shall not be
unreasonably withheld; provided that if an Assignee is an affiliate of such
transferor Bank, no such consent shall be required; and provided further that
such assignment may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, a new Promissory Note
is issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall deliver to
the Borrower and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Promissory Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Notwithstanding anything to the contrary contained in this Section
9.06 but subject to the terms and conditions set forth in this subsection (f),
any Bank may from time to time, elect to designate a Conduit to provide all or
any part of Loans required to be made by such Bank to the Borrower pursuant to
this Agreement or to acquire a participation interest in any Loans
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extended by such Bank hereunder (a "CONDUIT DESIGNATION"), provided the
designation of a Conduit by any Bank for purposes of this Section 9.06(f) shall
be subject to the approval of the Borrower. No additional Note shall be required
with regard to a Conduit Designation; provided, however, to the extent any
Conduit shall advance funds under a Conduit Designation, the designating Bank
shall be deemed to hold the Note in its possession as an agent for such Conduit
to the extent of the Loan funded by such Conduit. Notwithstanding any such
Conduit Designation, (x) the designating Bank shall remain solely responsible to
the other parties hereto for its obligations under this Agreement and (y) the
Borrower and the Agent may continue to deal solely and directly with the
designating Bank as administrative agent for such designating Bank's Conduit, in
connection with all of such Conduit's rights and obligations under this
Agreement, unless and until the Borrower and the Agent are notified that the
designating Bank has been replaced as administrative agent for its Conduit; any
payments for the benefit of any designating Bank and its Conduit shall be paid
to such designating Bank for itself as administrative agent for its Conduit, as
applicable; provided neither the Borrower nor the Agent shall be responsible for
any designating Bank's application of any such payments. In addition, any
Conduit may (i) with notice to, but without the prior written consent of the
Borrower and the Agent, and without paying any processing fee therefor, assign
all or portions of its interest in any Loans to the Bank that designated such
Conduit or to any financial institutions consented to by the Borrower and the
Agent providing liquidity and/or credit facilities to or for the account of such
Conduit to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any guarantee, surety,
credit or liquidity enhancement to such Conduit.
(g) Each party to this Agreement hereby agrees that, at any time a
Conduit Designation is in effect, it shall not institute against, or join any
other person in instituting against, any Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing commercial paper note issued by such Conduit is paid. This
Section 9.06(g) shall survive the termination of this Agreement.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
AND EACH PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
63
69
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 9.09. Counterparts; Integration. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 9.10. Waiver of Jury Trial. EACH OF THE BORROWER, THE AGENT AND
THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Judgment Currency. If, under any applicable law and
whether pursuant to a judgment being made or registered against the Borrower or
for any other reason, any payment under or in connection with this Agreement, is
made or satisfied in a currency (the "Other Currency") other than that in which
the relevant payment is due (the "Required Currency") then, to the extent that
the payment (when converted into the Required Currency at the rate of exchange
on the date of payment or, if it is not practicable for the party entitled
thereto (the "Payee") to purchase the Required Currency with the other Currency
on the date of payment, at the rate of exchange as soon thereafter as it is
practicable for it to do so) actually received by the Payee falls short of the
amount due under the terms of this Agreement, the Borrower shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless the Payee against the amount of such short-fall. For the purpose of
this Section, "rate of exchange" means the rate at which the Payee is able on
the relevant date to purchase the Required Currency with the Other Currency and
shall take into account any premium and other costs of exchange.
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TYCO INTERNATIONAL (US) INC.
By:/s/
----------------------------
Name:
Title: Vice President - Chief Financial Officer
By: /s/
---------------------------
Name:
Title: Vice President - Treasurer
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/
---------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/
-----------------------------
Name:
Title:
BANKERS TRUST COMPANY
By: /s/
------------------------------
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
MARINE MIDLAND BANK
By: /s/
----------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/
----------------------------
Name:
Title:
72
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
----------------------------
Name:
Title:
NATIONSBANK, N.A.
By: /s/
----------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/
----------------------------
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
73
BANK BRUSSELS ▇▇▇▇▇▇▇
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC NEW
YORK BRANCH
By: /s/
----------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By: /s/
----------------------------
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/
----------------------------
Name:
Title:
ABN AMRO BANK N.V.
By: /s/
----------------------------
Name:
Title:
BANCA COMMERCIALE ITALIANA -
NEW YORK BRANCH
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.p.A. -
NEW YORK BRANCH
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/
----------------------------
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/
----------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, NEW YORK BRANCH
By: /s/
----------------------------
Name:
Title:
BANKBOSTON, N.A.
By: /s/
----------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/
----------------------------
Name:
Title:
76
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
----------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
----------------------------
Name:
Title:
FLEET BANK - NH
By: /s/
----------------------------
Name:
Title:
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By: /s/
----------------------------
77
Name:
Title:
STANDARD CHARTERED BANK
By: /s/
----------------------------
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By:/s/
----------------------------
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telex number: 177615
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
78
APPENDIX
COMMITMENT SCHEDULE
▇▇▇▇▇▇ Guaranty Trust Company of New York $ 108,888,888.89
The Bank of Nova Scotia 97,222,222.22
Bankers Trust Company 97,222,222.22
Commerzbank AG, New York Branch 97,222,222.22
Credit Suisse First Boston 97,222,222.22
Marine Midland Bank 97,222,222.22
Mellon Bank, N.A. 97,222,222.22
Credit Lyonnais New York Branch 77,777,777.78
NationsBank, N.A. 77,777,777.78
Toronto Dominion (Texas), Inc. 77,777,777.78
Union Bank of Switzerland, New York Branch 77,777,777.78
Bank Brussels ▇▇▇▇▇▇▇ 50,555,555.56
Banque Nationale de Paris 50,555,555.56
National Westminster Bank PLC 50,555,555.56
The Bank of New York 50,555,555.56
ABN AMRO Bank N.V. 38,888,888.89
Banca Commerciale Italiana - New York Branch 38,888,888.89
Banca Nazionale del Lavoro S.p.A. - New York Branch 38,888,888.89
Bank of America NT & SA 38,888,888.89
Bank of Montreal, Chicago Branch 38,888,888.89
Bank of Tokyo-Mitsubishi Trust Company 38,888,888.89
BankBoston, N.A. 38,888,888.89
Citibank, N.A. 38,888,888.89
The First National Bank of Chicago 38,888,888.89
First Union National Bank 38,888,888.89
Fleet Bank - NH 38,888,888.89
Istituto Bancario San Paolo Di Torino SpA 38,888,888.89
KeyBank National Association 38,888,888.89
Standard Chartered Bank 38,888,888.89
------------------
Total Commitments $ 1,750,000,000.00
79
EXHIBIT A
PROMISSORY NOTE
New York, New York
, 1998
For value received, [NAME OF BORROWER], a ___________ corporation (the
"Borrower"), promises to pay to the order of (the "Bank"), for the account of
its Applicable Lending Office, the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below on
the maturity date provided for in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This promissory note is one of the Promissory Notes referred to in the
364-Day Credit Agreement dated as of February 13, 1998 among the Borrower, the
banks listed on the signature pages thereof and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
Except as permitted by Section 9.06 of the Credit Agreement, this
Promissory Note may not be assigned by the Bank to any other Person.
80
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of New York.
[NAME OF BORROWER]
By________________________
Title:
By________________________
Title:
81
Promissory Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------------------------------------------------------
Amount Type Amount of Unpaid
of of Principal Principal Maturity Notation
Date Loan Loan Repaid Amount Date Made By
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
82
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
(the "Agent")
From: [Name of Borrower]
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of
February 13, 1998 among the Borrower, the Banks listed on the
signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By -----------------------------------------
Title:
By -----------------------------------------
Title:
*Amount must be $10,000,000 or a larger multiple of $1,000,000.
**Not less than one month (LIBOR Auction) or not less than 30 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
83
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
February 13, 1998 among the Borrower, the Banks parties thereto and the
undersigned, as Agent (the "Credit Agreement"), we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30
A.M.] (New York City time) on [date].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By ----------------------------------------
Authorized Officer
84
EXHIBIT D
Form of Money Market Quote
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Agent
Re: Money Market Quote to [Name of Borrower]. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_______________________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at
the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed $____________.]**
___________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids must be
made for $5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
85
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of February 13, 1998 (the "Credit Agreement") among the
Borrower, the Banks listed on the signature pages thereof and yourselves, as
Agent, irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part, in accordance with Section 2.03(f)
of the Credit Agreement.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined
for the applicable Interest Period. Specify percentage (to the nearest 1/10,000
of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per
annum (to the nearest 1/10,000th of 1%).
86
EXHIBIT E-1
Form of Opinion of General Counsel
of the Borrower
[Effective Date]
To the Banks and the Agent
Named on the Attached Distribution List
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, As Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the General Counsel of Tyco International (US) Inc., a
Massachusetts corporation (the "Borrower") and am rendering this opinion in
connection with that certain 364-Day Credit Agreement and that certain
Extendible 364-Day Credit Agreement (collectively, the "Credit Agreements"),
each dated as of February 13, 1998, among the Borrower, the banks listed on the
signature pages thereof (the "Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Agent. This opinion is being delivered to you pursuant to Section
3.01(e) of each Credit Agreement. Each term defined in the Credit Agreements and
used herein, but not otherwise defined herein, has the meaning ascribed thereto
in the Credit Agreements.
In connection with the opinion set forth herein, I have reviewed the
Credit Agreements, the Promissory Notes of the Borrower and the Parent Guarantee
and have examined originals or copies, certified or otherwise identified to my
satisfaction, of (i) the Restated Articles of Organization and By-laws of the
Borrower, each as in effect on the date hereof and (ii) such other documents,
records, certificates and instruments as I have deemed relevant and necessary as
a basis for the opinion hereinafter expressed.
In my examination, I have assumed the genuineness of all signatures on
original documents, the authenticity of all documents submitted to me as
originals, the conformity to the originals of all copies submitted to me as
certified, conformed or photostatic copies, and the authenticity of the
originals of such copies. As to various questions of fact material to this
opinion, I have relied, without independent investigation or verification, upon
statements, representations and certificates of officers and other
representatives of the Borrower and certificates of public officials. In
addition, I have assumed that (i) the Credit Agreements have been validly
authorized, executed and delivered by all parties thereto (other than the
Borrower), (ii) each party to the Credit Agreements (other than the Borrower)
has been duly organized and is a corporation or other entity validly existing
and in good standing (to the extent applicable) under the laws of its respective
jurisdiction of organization, with the full corporate or other
87
organizational power to execute and deliver the Credit Agreements and to perform
its respective obligations thereunder, (iii) the Credit Agreements constitute
the legal, valid and binding obligations of the respective parties thereto
(other than the Borrower) enforceable against such parties in accordance with
their respective terms, (iv) the execution and delivery of the Credit Agreements
by each party thereto (other than the Borrower) and the performance by such
parties of their respective obligations thereunder do not violate such parties'
respective articles or certificate of incorporation or by-laws, or other
organizational documents, and (v) the execution, delivery and performance by
each party to the Credit Agreements (other than the Borrower) and the
performance by such parties of their respective obligations thereunder do not
violate any agreement, judgment, injunction, decree, order of any governmental
authority, other instrument, law or regulation applicable to such party.
Based upon the foregoing, and subject to the qualifications and
assumptions set forth herein, it is my opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts, and
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals (collectively, the "Consents") required to carry on its
business as now conducted, other than those powers and Consents, the failure of
which to be possessed or obtained could not, based upon the facts and
circumstances in existence on the date hereof, reasonably be expected to have a
Material Adverse Effect.
2. The execution, delivery and performance by the Borrower of the
Credit Agreements and the Promissory Notes (a) are within the Borrower's
corporate powers; (b) have been duly authorized by all necessary corporate
action on the part of the Borrower; (c) require no action by or in respect of,
or filing with, any governmental body, agency or official, in each case, on the
part of the Borrower; and (d) do not contravene, or constitute a default by the
Borrower under, any provision of (i) applicable law or regulation, (ii) the
certificate of incorporation or by-laws of the Borrower or, (iii) any agreement
or instrument evidencing or governing Debt of the Borrower, or any other
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower.
3. Each Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Promissory Note constitutes a valid and binding obligation
of the Borrower.
4. There is no action, suit or proceeding pending against, or, to the
best of my knowledge, threatened against or affecting, the Borrower or any of
its Subsidiaries before any court or arbitrator or any governmental body, agency
or official, in which there is a reasonable possibility of an adverse decision
which could, based upon the facts and circumstances in existence on the date
hereof, reasonably be expected to have a Material Adverse Effect or which in any
manner draws into question the validity of the Financing Documents.
2
88
5. Each of the Borrower's corporate Subsidiaries is a corporation
validly existing and in good standing under the laws of its jurisdiction of
incorporation, except where the failure to be so incorporated, existing or in
good standing could not, based upon the facts and circumstances existing on the
date hereof, reasonably be expected to have a Material Adverse Effect, and has
all corporate powers and all Consents required to carry on its business as now
conducted other than those powers and Consents, the failure of which to be
possessed or obtained could not, based upon the facts and circumstances in
existence on the date hereof, reasonably be expected to have a Material Adverse
Effect.
The opinion set forth herein is subject to the following qualifications
and limitations:
(a) The enforceability of the Credit Agreements and the Promissory
Notes may be subject to or limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance or transfer or other similar laws
and court decisions, now or hereafter in effect, relating to or affecting the
rights of creditors generally.
(b) The enforceability of the Credit Agreements and the Promissory
Notes is or will be subject to the application of and may be limited by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law). Such principles of equity are of general
application, and in applying such principles a court, among other things, might
not allow a creditor to accelerate maturity of a debt under certain
circumstances including, without limitation, upon the occurrence of a default
deemed immaterial, or might decline to order the Borrower or any of the other
parties to the Financing Documents to perform covenants. Such principles as
applied by a court might include a requirement that a creditor act with
reasonableness and in good faith. Thus, I express no opinion as to the validity
or enforceability of (i) provisions restricting access to legal or equitable
remedies, such as the specific performance of executory covenants, (ii)
provisions that purport to establish evidentiary standards, (iii) provisions
relating to waivers, severability, set-off, or delay or omission of enforcement
of rights or remedies, and (iv) provisions purporting to convey rights to
persons other than parties to the Financing Documents.
(c) The remedy of specific performance and injunctive and other forms
of equitable relief are subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(d) I have not been requested to render, and with your permission I do
not express, any opinion as to the applicability to any provision of the
Financing Documents, of Section 548 of the Federal Bankruptcy Code, Article 10
of the New York Debtor & Creditor Law, or any other fraudulent conveyance,
insolvency or transfer laws or any court decisions with respect to any of the
foregoing.
3
89
I call your attention to the fact that I am admitted to practice law
only in the State of New York and the Commonwealth of Massachusetts, and, in
rendering the foregoing opinion, I do not express any opinion as to any laws
other than the laws of the State of New York, the Commonwealth of Massachusetts
and the Federal laws of the United States of America.
The opinion expressed herein is based upon the laws in effect on the
date hereof, and I assume no obligation to revise or supplement this opinion
should any such law be changed by legislative action, judicial decision, or
otherwise.
This opinion is being delivered to you solely for your benefit in
connection with the Financing Documents, and neither this opinion nor any part
hereof may be delivered to, or used, referred to or relied upon, by any other
person or for any other purpose without my express prior written consent, except
that any person who is a permitted successor or assign of a Bank in accordance
with the provisions of the Credit Agreement may rely upon this opinion as if it
were specifically addressed and delivered to such person on the date hereof.
Very truly yours,
4
90
EXHIBIT E-2
Form of Opinion of General Counsel
of the Borrower on Behalf of the Parent Guarantor
[Effective Date]
To the Banks and the Agent
Named on the Attached Distribution List
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, As Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the General Counsel of Tyco International (US) Inc., a
Massachusetts corporation and a wholly owned indirect subsidiary of Tyco
International Ltd., a Bermuda corporation (the "Parent Guarantor") and am
rendering this opinion in connection with that certain Parent Guarantee (the
"Parent Guarantee"), dated as of February 13, 1998, entered into by the Parent
Guarantor pursuant to that certain 364-Day Credit Agreement and that certain
Extendible 364- Day Credit Agreement (collectively, the "Credit Agreements"),
each dated as of February 13, 1998, among Tyco International (US) Inc. (the
"Borrower"), the banks listed on the signature pages thereof (the "Banks") and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent. This opinion is being
delivered to you pursuant to Section 3.01(e) of each Credit Agreement. Each term
defined in the Credit Agreements and used herein, but not otherwise defined
herein, has the meaning ascribed thereto in the Credit Agreements.
In connection with the opinion set forth herein, I have reviewed the
Credit Agreements, the Promissory Notes of the Borrower and the Parent Guarantee
and have examined originals or copies, certified or otherwise identified to my
satisfaction, of (i) the [Memorandum of Association and By-laws] of the Parent
Guarantor, each as in effect on the date hereof and (ii) such other documents,
records, certificates and instruments as I have deemed relevant and necessary as
a basis for the opinion hereinafter expressed.
In my examination, I have assumed the genuineness of all signatures on
original documents, the authenticity of all documents submitted to me as
originals, the conformity to the originals of all copies submitted to me as
certified, conformed or photostatic copies, and the authenticity of the
originals of such copies. As to various questions of fact material to this
opinion, I have relied, without independent investigation or verification, upon
statements, representations and certificates of officers and other
representatives of the Parent Guarantor and certificates of public officials.
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Based upon the foregoing, and subject to the qualifications and
assumptions set forth herein, it is my opinion that:
1. The execution, delivery and performance by the Parent Guarantor of
the Parent Guarantee (a) require no action by or in respect of, or filing with,
any governmental body, agency or official, in each case, on the part of the
Parent Guarantor; and (b) do not contravene, or constitute a default by the
Parent Guarantor under, any provision of (i) applicable law or regulation or
(ii) any agreement or instrument evidencing or governing Debt of the Parent
Guarantor, or any other agreement, judgment, injunction, order, decree or other
instrument binding upon the Parent Guarantor.
2. The Parent Guarantee constitutes a valid and binding obligation of
the Parent Guarantor.
3. There is no action, suit or proceeding pending against, or, to the
best of my knowledge, threatened against or affecting, the Parent Guarantor or
any of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official, in which there is a reasonable possibility of an adverse
decision which could, based upon the facts and circumstances in existence on the
date hereof, reasonably be expected to have a Material Adverse Effect or which
in any manner draws into question the validity of the Financing Documents.
4. Each of the Parent Guarantor's corporate Subsidiaries is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, except where the failure to be so incorporated,
existing or in good standing could not, based upon the facts and circumstances
existing on the date hereof, reasonably be expected to have a Material Adverse
Effect, and has all corporate powers and all Consents required to carry on its
business as now conducted other than those powers and Consents, the failure of
which to be possessed or obtained could not, based upon the facts and
circumstances in existence on the date hereof, reasonably be expected to have a
Material Adverse Effect.
The opinion set forth herein is subject to the following qualifications
and limitations:
(a) The enforceability of the Parent Guarantee may be subject to or
limited by bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance or transfer or other similar laws and court decisions, now
or hereafter in effect, relating to or affecting the rights of creditors
generally.
(b) The enforceability of the Parent Guarantee is or will be subject to
the application of and may be limited by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law).
Such principles of equity are of general application, and in applying such
principles a court, among other things, might not allow a creditor to accelerate
maturity of a debt under certain circumstances including, without limitation,
upon the occurrence
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of a default deemed immaterial, or might decline to order the Parent Guarantor
or any of the other parties to the Financing Documents to perform covenants.
Such principles as applied by a court might include a requirement that a
creditor act with reasonableness and in good faith. Thus, I express no opinion
as to the validity or enforceability of (i) provisions restricting access to
legal or equitable remedies, such as the specific performance of executory
covenants, (ii) provisions that purport to establish evidentiary standards,
(iii) provisions relating to waivers, severability, set-off, or delay or
omission of enforcement of rights or remedies, and (iv) provisions purporting to
convey rights to persons other than parties to the Financing Documents.
(c) The remedy of specific performance and injunctive and other forms
of equitable relief are subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(d) I have not been requested to render, and with your permission I do
not express, any opinion as to the applicability to any provision of the
Financing Documents, of Section 548 of the Federal Bankruptcy Code, Article 10
of the New York Debtor & Creditor Law, or any other fraudulent conveyance,
insolvency or transfer laws or any court decisions with respect to any of the
foregoing.
I call your attention to the fact that I am admitted to practice law
only in the State of New York and the Commonwealth of Massachusetts, and, in
rendering the foregoing opinion, I do not express any opinion as to any laws
other than the laws of the State of New York, the Commonwealth of Massachusetts
and the Federal laws of the United States of America. Insofar as the foregoing
opinion involves matters governed by the laws of Bermuda, I have relied, without
independent investigation, upon the opinion of ____________, a copy of which has
been delivered to you.
The opinion expressed herein is based upon the laws in effect on the
date hereof, and I assume no obligation to revise or supplement this opinion
should any such law be changed by legislative action, judicial decision, or
otherwise.
This opinion is being delivered to you solely for your benefit in
connection with the Financing Documents, and neither this opinion nor any part
hereof may be delivered to, or used, referred to or relied upon, by any other
person or for any other purpose without my express prior written consent, except
that any person who is a permitted successor or assign of a Bank in accordance
with the provisions of the Credit Agreement may rely upon this opinion as if it
were specifically addressed and delivered to such person on the date hereof.
Very truly yours,
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EXHIBIT F
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENT
To the Banks and the Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the 364-Day Credit Agreement
and the Extendible 364-Day Credit Agreement (collectively, the "Credit
Agreements"), each dated as of February 13, 1998, among Tyco International (US)
Inc., a Massachusetts corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Agent (the "Agent"), and have acted as special counsel for the Agent
for the purpose of rendering this opinion pursuant to Section 3.01(f) of the
Credit Agreements. Terms defined in the Credit Agreements are used herein as
therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that each Credit
Agreement constitutes a valid and binding agreement of the Borrower, that each
Promissory Note delivered on the date hereof constitutes a valid and binding
obligation of the Borrower and that the Parent Guarantee constitutes a valid and
binding obligation of the Parent Guarantor, in each case enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, (i) we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
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interest that such Bank may charge or collect and (ii) insofar as the foregoing
opinion involves matters governed by the laws of Massachusetts or Bermuda, we
have relied, without independent investigation, upon the respective opinions of
the General Counsel of the Borrower [and the Parent Guarantor] and of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special Bermuda counsel for the Parent Guarantor, copies of
which have been delivered to you.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent, except that
any person who is a permitted successor or assign of a Bank in accordance with
the provisions of the Credit Agreement may rely upon this opinion as if it were
specifically addressed and delivered to such person on the date hereof.
Very truly yours,
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, ____ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), [NAME OF BORROWER] (the "Borrower")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of February 13, 1998 among the
Borrower, the Assignor and the other Banks party thereto, as Banks, and the
Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of
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the Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor outstanding at the
date hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee, [the Borrower and the Agent] and the payment of the amounts specified
in Section 3 required to be paid on the date hereof (i) the Assignee shall, as
of the date hereof, succeed to the rights and be obligated to perform the
obligations of a Bank under the Credit Agreement with a Commitment in an amount
equal to the Assigned Amount, and (ii) the Commitment of the Assignor shall, as
of the date hereof, be reduced by a like amount and the Assignor released from
its obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that facility fees in respect of the Assigned Amount accrued to the
date hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Section
9.06(c) of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
--------
*Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
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SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
------------------------------------
Title:
[ASSIGNEE]
By
-------------------------------------
Title:
[NAME OF BORROWER]
By
------------------------------------
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By
-----------------------------------
Title:
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EXHIBIT H
SUBSIDIARY GUARANTEE
Dated as of ____________
WHEREAS, [Name of Borrower], a ___________ corporation, has entered
into a 364-Day Credit Agreement and an Extendible 364-Day Credit Agreement
(collectively, as the same may be amended from time to time, the "Credit
Agreements") each dated as of February 13, 1998 among the Borrower, the banks
listed on the signature pages thereof, and ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Agent, pursuant to which the Borrower is entitled, subject to certain
conditions, to borrow up to $2,250,000,000;
WHEREAS, in conjunction with the transactions contemplated by the
Credit Agreements and in consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the undersigned (together with its successors, the
"Guarantor") and in order to induce the Banks and the Agent to enter into the
Credit Agreements and to make Loans thereunder, the Guarantor is willing to
guarantee the obligations of the Borrower under the Credit Agreements and the
Promissory Notes issued thereunder;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
ARTICLE
DEFINITIONS
SECTION 1. Definitions. Terms defined in the Credit Agreements and not
otherwise defined herein are used herein as therein defined (e.g., a "Loan" is a
Loan made pursuant to either Credit Agreement and a "Promissory Note" is a
Promissory Note issued pursuant to either Credit Agreement). In addition the
following terms, as used herein, have the following meanings:
"Guaranteed Obligations" means (i) all obligations of the Borrower in
respect of principal of and interest on the Loans and the Promissory Notes, (ii)
all other amounts payable by the Borrower under either Credit Agreement or any
Promissory Note and (iii) all renewals or extensions of the foregoing, in each
case whether now outstanding or hereafter arising. The Guaranteed Obligations
shall include, without limitation, any interest, costs, fees and expenses which
accrue on or with respect to any of the foregoing and are payable by the
Borrower pursuant to either Credit Agreement or any Promissory Note, whether
before or after the
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commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any one or more than one of the Obligors, and
any such interest, costs, fees and expenses that would have accrued thereon or
with respect thereto and would have been payable by the Borrower pursuant to
such Credit Agreement or Promissory Note but for the commencement of such case,
proceeding or other action.
ARTICLE
GUARANTEE
SECTION 1. The Guarantees. Subject to Section 3, the Guarantor hereby
unconditionally and irrevocably guarantees to the Banks and the Agent and to
each of them, the due and punctual payment of all Guaranteed Obligations as and
when the same shall become due and payable, whether at maturity, by declaration
or otherwise, according to the terms thereof. In case of failure by the Borrower
punctually to pay the indebtedness guaranteed hereby, the Guarantor, subject to
Section 3, hereby unconditionally agrees to cause such payment to be made
punctually as and when the same shall become due and payable, whether at
maturity or by declaration or otherwise, and as if such payment were made by the
Borrower.
SECTION 2. Guarantee unconditional. The obligations of the Guarantor
under this Article 2 shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any other Obligor under any Financing Document,
by operation of law or otherwise;
(b) any modification or amendment of or supplement to any Financing
Document (other than as specified in an amendment or waiver of this Subsidiary
Guarantee effected in accordance with Section 3);
(c) any modification, amendment, waiver, release, non-perfection or
invalidity of any direct or indirect security, or of any guaranty or other
liability of any third party, for any obligation of any other Obligor under any
Financing Document;
(d) any change in the corporate existence, structure or ownership of
any other Obligor, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any other Obligor or its assets or any resulting
release or discharge of any obligation of any other Obligor contained in any
Financing Document [(including, without limitation, any change in the identity
of the Borrower from Tyco US to Tyco Luxembourg as contemplated by Section 3.04
of the Credit Agreements)] [to be included in Subsidiary Guarantees issued while
Tyco US is the Borrower];
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(e) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against any other Obligor, the Agent, any Bank or
any other Person, whether or not arising in connection with the Financing
Documents; provided that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any other
Obligor for any reason of any Financing Document, or any provision of applicable
law or regulation purporting to prohibit the payment by any other Obligor of the
principal of or interest on any Promissory Note or any other amount payable by
any other Obligor under any Financing Document; or
(g) any other act or omission to act or delay of any kind by any other
Obligor, the Agent, any Bank or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the obligations of the Guarantor under this
Article 2.
SECTION 3. Limit of Liability. The Guarantor shall be liable under this
Subsidiary Guarantee only for amounts aggregating up to the largest amount that
would not render its obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable provisions of any
other applicable law.
SECTION 4. Discharge; Reinstatement in Certain Circumstances. Subject
to Section 6, the Guarantor's obligations under this Article 2 shall remain in
full force and effect until the Commitments are terminated and the principal of
and interest on the Promissory Notes and all other amounts payable by the
Borrower under the Financing Documents shall have been paid in full. If at any
time any payment of the principal of or interest on any Promissory Note or any
other amount payable by the Borrower under any Financing Document is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any other Obligor or otherwise, the Guarantor's obligations
under this Article 2 with respect to such payment shall be reinstated at such
time as though such payment had become due but had not been made at such time.
SECTION 5. Waiver. The Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against any
other Obligor or any other Person.
SECTION 6. Subrogation and Contribution. (a) The Guarantor irrevocably
waives any and all rights to which it may be entitled, by operation of law or
otherwise, upon making any payment hereunder (i) to be subrogated to the rights
of the payee against the Borrower with respect to such payment or otherwise to
be reimbursed, indemnified or exonerated by any other Obligor in respect thereof
or (ii) to receive any payment, in the nature of contribution or for any other
reason, from any other Obligor with respect to such payment
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(b) Notwithstanding the provision of subsection (a) of this Section 6,
the Guarantor shall have and be entitled to (i) all rights of subrogation or
contribution otherwise provided by law in respect of any payment it may make or
be obligated to make under this Subsidiary Guarantee and (ii) all claims (as
defined under Chapter 11 of Title 11 of the United States Code, as amended, or
any successor statute (the "Bankruptcy Code")) it would have against the
Borrower or any other Guarantor (each an "Other Party") in the absence of
subsection (a) of this Section 6 and to assert and enforce the same, in each
case on and after, but at no time prior to, the date (the "Subrogation Trigger
Date") which is one year and five days after the Termination Date if, but only
if, (x) no Default or Event of Default of the type described in Section 6.01(i)
or 6.01(j) of the Credit Agreements with respect to the relevant Other Party has
existed at any time on and after the date of this Subsidiary Guarantee to and
including the Subrogation Trigger Date and (y) the existence of such Guarantor's
rights under this clause (b) would not make such Guarantor a creditor (as
defined in the Bankruptcy Code) of such Other Party in any insolvency,
bankruptcy, reorganization or similar proceeding commenced on or prior to the
Subrogation Trigger Date.
SECTION 7. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under the Financing Documents is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all
such amounts otherwise subject to acceleration under the terms of the Financing
Documents shall nonetheless be payable by the Guarantor hereunder forthwith on
demand by the Agent made at the request of the Required Banks.
ARTICLE
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to the Agent and the Banks that:
SECTION 1. Corporate Existence and Power. The Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of ___________.
SECTION 2. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Guarantor of this Subsidiary
Guarantee:
(a) are within the Guarantor's corporate powers;
(b) have been duly authorized by all necessary corporate action on the
part of the Guarantor;
(c) require no action by or in respect of, or filing with, any
governmental body, agency or official, in each case, on the part of the
Guarantor; and
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(d) do not contravene, or constitute a default by the Guarantor under,
any provision of (i) applicable law or regulation, (ii) the certificate of
incorporation or by-laws of the Guarantor, or (iii) any agreement or instrument
evidencing or governing Debt of the Guarantor or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Guarantor.
SECTION 3. Binding Effect. This Subsidiary Guarantee constitutes a
valid and binding obligation of the Guarantor.
SECTION 4. Not an Investment Company. The Guarantor is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
ARTICLE
MISCELLANEOUS
SECTION 1. Notices. All notices, requests and other communications to
be made to or by the Guarantor hereunder shall be in writing (including, without
limitation, bank wire, telex, facsimile transmission or similar writing) and
shall be given: (a) if to the Guarantor, to it at its address or facsimile
number set forth on the signature pages hereof or such other address or
facsimile number as the Guarantor may hereafter specify for the purpose by
notice to the Agent and (b) if to any party to either Credit Agreement, to it at
its address or telex or facsimile number for notices specified in or pursuant to
such Credit Agreement. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section 1 and the appropriate answerback is received,
(ii) if given by facsimile, when such facsimile is transmitted to the facsimile
transmission number specified in this Section 1 and electronic, telephonic or
other appropriate confirmation of receipt thereof is received by the sender,
(iii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iv) if given
by any other means, when delivered at the address specified in this Section 1.
SECTION 2. No Waiver. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege under this Subsidiary Guarantee or any
other Financing Document shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein and therein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
SECTION 3. Amendments and Waivers. Any provision of this Subsidiary
Guarantee may be amended or waived if, and only if, such amendment or waiver is
in writing and is signed by the Guarantor and the Agent with the prior written
consent of the Required Banks under the Credit Agreements.
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SECTION 4. Successors and Assigns. This Subsidiary Guarantee is for the
benefit of the Banks and the Agent and their respective successors and assigns
and in the event of an assignment of the Loans, the Promissory Notes or other
amounts payable under the Financing Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, shall be transferred with
such indebtedness. All the provisions of this Subsidiary Guarantee shall be
binding upon the Guarantor and its successors and assigns.
SECTION 5. Taxes. All payments by the Guarantor hereunder shall be made
free and clear of Taxes in accordance with Section 8.04 of the Credit
Agreements. If the Guarantor is organized under the laws of, or has its
principal place of business in, a jurisdiction outside the United States, this
Section 5 shall be modified in a manner satisfactory to the Agent and the
Guarantor to indemnify for any foreign taxes which may be applicable.
SECTION 6. Effectiveness; Termination. (a) This Agreement shall become
effective when the Agent shall have received a counterpart hereof signed by the
Guarantor.
(b) The Guarantor may at any time elect to terminate this Subsidiary
Guarantee and its obligations hereunder, provided that, after giving effect
thereto, no Default shall have occurred and be continuing; and provided further
that subsequent to the New Borrower Date, this Subsidiary Guarantee may not be
so terminated in respect of any Guarantor which is a Required Significant
Subsidiary. If the Guarantor so elects to terminate this Subsidiary Guarantee,
it shall give the Agent notice to such effect, which notice shall be accompanied
by a certificate of a Responsible Officer to the effect that, after giving
effect to such termination, no Default shall have occurred and be continuing.
The Agent may if it so elects conclusively rely on such certificate. Upon
receipt of such notice and such certificate, unless the Agent determines that a
Default shall have occurred and be continuing, the Agent shall promptly deliver
to the Guarantor the counterpart of this Subsidiary Guarantee delivered to the
Agent pursuant to Section 6(a), and upon such delivery this Subsidiary Guarantee
shall terminate and the Guarantor shall have no further obligations hereunder.
SECTION 7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS SUBSIDIARY
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTEE OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
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SECTION 8. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
WAIVES AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS SUBSIDIARY GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed by its authorized officer as of the date first above written.
[GUARANTOR]
By ____________________________
Title:
[Address]
Facsimile Number:
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EXHIBIT I
[Form of Opinion of Counsel for the Subsidiary Guarantor]
To the Banks and the Agent
Named on the Attached Distribution List
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the [Associate] General Counsel of [Name of Borrower], a
__________ corporation (the "Borrower"), and have acted as counsel for [name of
Subsidiary Guarantor] (the "Guarantor"), and am rendering this opinion in
connection with that certain Subsidiary Guarantee (the "Subsidiary Guarantee"),
dated as of __________, entered into by the Guarantor, pursuant to that certain
364-Day Credit Agreement and that certain Extendible 364-Day Credit Agreement
(collectively, the "Credit Agreements"), each dated as of February 13, 1998,
among the Borrower, the banks listed on the signature pages thereof (the
"Banks") and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent. Each term
defined in the Subsidiary Guarantee and used herein, but not otherwise defined
herein, has the meaning ascribed thereto in the Subsidiary Guarantee. This
opinion is being delivered to you pursuant to the Credit Agreements.
In connection with the opinion set forth herein, I have reviewed the
Credit Agreements, the Promissory Notes and the Subsidiary Guarantee and have
examined originals or copies, certified or otherwise identified to my
satisfaction, of (i) the [Certificate of Incorporation] and By-laws of the
Guarantor, each as in effect on the date hereof and (ii) such other documents,
records, certificates and instruments as I have deemed relevant and necessary as
a basis for the opinion hereinafter expressed.
In my examination, I have assumed the genuineness of all signatures on
original documents, the authenticity of all documents submitted to me as
originals, the conformity to the originals of all copies submitted to be as
certified, conformed or photostatic copies, and the authenticity of the
originals of such copies. As to various questions of fact material to this
opinion, I have relied, without independent investigation or verification, upon
statements, representations and certificates of officers and other
representatives of the Guarantor and certificates of public officials.
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Based upon the foregoing, and subject to the qualifications and
assumptions set forth herein, it is my opinion that:
(1) The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of _________________.
(2) The execution, delivery and performance by the Guarantor of
the Subsidiary Guarantee (a) are within the Guarantor's corporate powers; (b)
have been duly authorized by all necessary corporate action on the part of the
Guarantor; (c) require no action by or in respect of, or filing on the part of
the Guarantor with, any governmental body, agency or official, in each case, on
the part of the Guarantor; and (d) do not contravene, or constitute a default by
the Guarantor under, any provision of (i) applicable law or regulation, (ii) the
certificate of incorporation or by-laws of the Guarantor or, (iii) any agreement
or instrument evidencing or governing Debt of the Guarantor, or any other
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Guarantor.
(3) The Subsidiary Guarantee constitutes a valid and binding
obligation of the Guarantor.
(4) The Guarantor is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
The opinion set forth herein is subject to the following qualifications
and limitations:
(a) The enforceability of the Subsidiary Guarantee may be subject
to or limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent conveyance or transfer or other similar laws and court
decisions, now or hereafter in effect, relating to or affecting the rights of
creditors generally.
(b) The enforceability of the Subsidiary Guarantee is or will be
subject to the application of and may be limited by general principles of equity
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law). Such principles of equity are of general application, and in
applying such principles a court, among other things, might not allow a creditor
to accelerate maturity of a debt under certain circumstances including, without
limitation, upon the occurrence of a default deemed immaterial, or might decline
to order the Guarantor to perform covenants. Such principles as applied by a
court might include a requirement that a creditor act with reasonableness and in
good faith. Thus, I express no opinion as to the validity or enforceability of
(i) provisions restricting access to legal or equitable remedies, such as the
specific performance of executory covenants, (ii) provisions that purport to
establish evidentiary standards, (iii) provisions relating to waivers,
severability, set-off, or delay or omission of enforcement of rights or
remedies, and (iv) provisions purporting to convey rights to persons other than
parties to the Subsidiary Guarantee.
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(c) The remedy of specific performance and injunctive and other
forms of equitable relief are subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(d) I have not been requested to render, and with your permission
I do not express, any opinion as to the applicability to any provisions of the
Subsidiary Guarantee, of Section 548 of the Federal Bankruptcy Code, Article 10
of the New York Debtor & Creditor Law, or any other fraudulent conveyance,
insolvency or transfer laws or any court decisions with respect to any of the
foregoing.
I call your attention to the fact that I am admitted to practice law
only in the State of New York and the Commonwealth of Massachusetts, and, in
rendering the foregoing opinion, I do not express any opinion as to any laws
other than the laws of [the jurisdiction of incorporation of the Guarantor], the
State of New York, the Commonwealth of Massachusetts and the Federal laws of the
United States of America.
The opinion expressed herein is based upon the laws in effect on the
date hereof, and I assume no obligation to revise or supplement this opinion
should any such law be changed by legislative action, judicial decision, or
otherwise.
This opinion is being delivered to you solely for your benefit in
connection with the Subsidiary Guarantee, and neither this opinion nor any part
hereof may be delivered to, or used, referred to or relied upon, by any other
person or for any other purpose without my express prior written consent, except
that any person who is a permitted successor or assign of a Bank in accordance
with the provisions of the Credit Agreement may rely upon this opinion as if it
were specifically addressed and delivered to such person on the date hereof.
Very truly yours,
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EXHIBIT K
Form of Opinion of Counsel
for the Parent Guarantor
To the Banks and the Agent
named on Schedule 1 to this Opinion
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company of New York (as Agent)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs,
Re: TYCO INTERNATIONAL LTD. (THE "COMPANY")
We have been instructed by the Company to address this opinion to you
in connection with the Parent Guarantee, dated as of February 13, 1998 (the
"Guarantee"), entered into by the Company in connection with all principal of
and interest on amounts loaned to the Borrower under the Financing Documents.
Unless otherwise defined therein, terms defined in the Guarantee have
the same meanings when used in this opinion.
For the purpose of this opinion, we have been supplied with and have
reviewed, and relied upon the following documents:
(A) a copy of the executed US $500,000,000 Extendible
364-Day Credit Agreement dated as of February 13, 1998 among the
Borrower, the Banks listed on the signature pages thereof and the
Agent;
(B) a copy of the executed US $1,750,000,000 364-Day
Credit Agreement dated as of February 13, 1998 among the Borrower, the
Banks listed on the signature pages thereof and the Agent;
(C) a copy of the executed Subsidiary Guarantees;
(D) a copy of the executed Promissory Notes;
The Documents referred to in (a), (b) and (d) inclusive are together referred to
as the "Financing Documents".
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(E) a copy of the executed Guarantee;
(F) certified copies of the Certificate of Incorporation,
the Certificate evidencing the change of name of the Company from ADT
Limited to TYCO International Ltd. and the Memorandum of Association
and the Bye-laws of the Company;
(G) a certified copy of the minutes of a meeting of the
Board of Directors of the Company held on [ ], 199_ (the
"Resolutions"); and
(H) a certified copy of the Share Certificate evidencing
ownership by the Company of [the Borrower].
We also examined and relied upon:
(A) A Certificate of Compliance issued by the Registrar
of Companies on Bermuda in respect of the Company on [ ] February,
1998; and
(B) Our searches of the documents of public record in
relation to the Company maintained by the Registrar of Companies in
Bermuda made on [ ] February, 1998 and of the Causes Book maintained by
the Registrar of the Supreme Court of Bermuda made on the same date
(the "Searches").
In giving this opinion, we have assumed:
(1) the capacity, power and authority of each of
the parties other than the company to execute, deliver and
perform its obligations under and the due execution and
delivery by all parties other than the Company of the
Financing Documents and the Guarantee;
(2) that each party, other than the Company, has
duly authorised, executed, delivered and taken such other
action as may be required by such party to enter into and
perform the Financing Documents and the Guarantee in the form
of the execution copies we have reviewed for the purpose of
this opinion without alteration which is material to this
opinion and that all such actions were duly authorised when
taken;
(3) that no authorisation or approval by, or
filing with, any governmental or regulatory authority, other
than such authorisations, approvals and filings as each party
other than the Company has obtained or made, is necessary for
such party to duly execute and deliver, or to duly perform all
of its obligations under the Financing Documents and the
Guarantee, or for the validity and enforceability of the
Financing Documents and the Guarantee;
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(4) that each of the Financing Documents and the
Guarantee constitutes the legal, valid and binding obligation
of each party to it, other than the Company, and is
enforceable against each such party in accordance with its
terms;
(5) that the Financing Documents are legal,
valid and binding under the laws by which they are expressed
to be governed and that the Guarantee is legal, valid and
binding under the laws of the State of New York by which it is
expressed to be governed;
(6) that the information disclosed by the
Searches has not been materially altered and the Searches did
not fail to disclose any material information which has been
delivered for filing or registration, but was not disclosed or
did not appear on the public file at the time of the Searches;
(7) that there is no provision of the law of any
jurisdiction, other than Bermuda, which would have any
implication in relation to the opinions herein expressed;
(8) the genuineness of all signatures on the
documents which we have examined;
(9) the conformity to original documents of all
documents produced to us as copies and the authenticity of all
original documents which, or copies of which, have been
submitted to us;
(10) the accuracy and completeness of all factual
representations made in the Financing Documents, the
Guarantee, the Resolutions and any certificates or other
documents which we have examined and upon which we have
relied;
(11) that the Resolutions are in full force and
effect and have not been rescinded or altered in any way
material to this opinion; and
(12) that the Company is entering into its
obligations under the Guarantee in good faith and for the
purpose of carrying on its commercial business in the ordinary
course thereof and that there are reasonable grounds for
believing that the transactions contemplated by the Financing
Documents will benefit the Company.
Based upon and subject to the foregoing, and subject to the
reservations set out below, to matters not disclosed to us and matters of fact
which would affect the conclusion set out below and having regard to such legal
considerations as we deem relevant, we are of the opinion that:
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(i). The Company is a company duly incorporated, duly organised and
validly existing under the laws of Bermuda. The Memorandum of Association of the
Company has been duly filed in the office of the Registrar of Companies of
Bermuda and no other filing, recording, publishing or other act is necessary or
appropriate in Bermuda in connection with the transaction as described in the
Guarantee except those which have been duly made or performed.
(ii). The Company has the corporate power and authority to enter
into and perform the Guarantee and has taken all corporate action required on
its part to authorise the execution, delivery and performance of the guarantee.
(iii). The execution, delivery and performance of the Guarantee by
the Company (i) does not and will not violate the Certificate of Incorporation,
Memorandum of Association or Bye-laws of the Company; (ii) conflict with the
Companies ▇▇▇ ▇▇▇▇ or any other law or governmental rule or regulation published
by the Bermuda Government which is applicable to the Company; and (iii) as far
as can be ascertained from the Searches (which are not conclusive) does not and
will not violate or conflict with any judgment, order, decree, injunction or
award of any authority, agency or court in Bermuda to which the Company is
subject.
(iv). The obligations of the Company as set out in the Guarantee
constitute, legal, valid and binding obligations of the Company.
(v). The Company having been designated as non-resident for the
purposes of the Exchange Control ▇▇▇ ▇▇▇▇, it is not necessary for the consent
of any authority or agency in Bermuda to be obtained to enable the Company to
enter into and perform its obligations set out in the Guarantee.
(vi). The obligations of the Company under the Guarantee will rank
at least pari passu in priority of payment with all other unsecured
unsubordinated indebtedness of the Company other than indebtedness which is
preferred by virtue of any provision of Bermuda law of general application.
(vii). As far as can be ascertained from the Searches (which are not
conclusive), no litigation, arbitration or administrative proceedings of or
before any court, arbitrator or governmental instrumentality of or in Bermuda
is, to the best of our knowledge, pending with respect to the Company in
connection with the Guarantee or the transactions contemplated thereby.
(viii). The Company will be permitted to make all payments under the
Guarantee free of any deduction or withholding therefrom in Bermuda and such
payments will not be subject to any tax imposed by the Government of Bermuda or
any taxing authority thereof or therein.
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(ix). The entry into, performance and enforcement of the Guarantee
will not give rise to any registration fee or to any stamp, excise or other
similar tax imposed by the Government of Bermuda or any taxing authority thereof
or therein.
(x). Subject to paragraph (12) and reservation (f) below, it is not
necessary or advisable under the laws of Bermuda in order to ensure the
validity, effectiveness or enforceability or admissibility in evidence of the
Guarantee that the Guarantee be filed, registered or recorded with any Court,
public office or other Bermuda regulatory authority.
(xi). The choice of the laws of the State of New York to govern the
Guarantee is a proper, valid and binding choice of law and will be recognised
and applied by the courts of Bermuda provided that the point is specifically
pleaded and that such choice of law is a valid and binding choice of law under
the laws of the State of New York.
(xii). A final and conclusive judgement obtained in the Courts of the
State of New York or Federal Courts of the United States of America against the
Company based upon the Guarantee under which a sum of money is payable (other
than a sum of money payable in respect of taxes or other charges of a like
nature or in respect of a fine or other penalty or in respect of Multiple
Damages as defined in the Protection of Trading Interest Act, 1981) may be the
subject of enforcement proceedings in the Supreme Court of Bermuda, without
re-examination of the merits, under the Common Law Doctrine of Obligation. A
final opinion as to the availability of this remedy should be sought when the
facts surrounding the foreign judgment are known but, on general principles, we
would expect such an application to be successful provided that:
(A) the Court which gave the judgment was competent to
hear the action in accordance with private international law principles
as applied in Bermuda;
(B) the judgment has not been obtained by fraud;
(C) the judgment is not and its enforcement would not be
contrary to public policy of Bermuda;
(D) the judgment has not been obtained in proceedings
contrary to natural justice; and
(E) the correct procedures under the laws of Bermuda are
duly complied with.
Neither the Company nor any of its property or assets (or any portion
thereof) enjoys, under the laws of Bermuda, immunity from suit, execution,
attachment or other legal process in any proceedings in Bermuda in connection
with the Guarantee.
Our reservations are as follows:
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(a) We are admitted to practise law in the Islands of Bermuda and
we express no opinion as to any law other than Bermuda law and none of the
opinions expressed herein relates to compliance with or matters governed by the
laws of any jurisdiction except Bermuda.
(b) Where an obligation is to be performed in a jurisdiction other
than Bermuda, the Courts of Bermuda may refuse to enforce it to the extent that
such performance would be illegal or contrary to public policy under the laws of
such other jurisdiction.
(c) We express no opinion as to the availability of equitable
remedies, such as specific performance or injunctive relief, or as to matters
which are within the discretion of the Courts of Bermuda such as the award of
costs or questions relating to forum non-conveniens. Further, we express no
opinion as to the validity or binding effect of any waiver of or obligation to
waive any provision of law (whether substantive or procedural) or any right or
remedy arising through circumstances not known at the time of entering into the
Financing Documents and the Guarantee.
(d) We express no opinion as to the validity or the binding effect
of any obligations of the Borrower in the Financing Documents which provide for
the payment by the Borrower of a higher rate of interest on overdue amounts than
on amounts which are current. A Bermuda Court, even if it were applying the laws
of the State of New York might not give effect to such provision as being
contrary to public policy if it could be established that the amount expressed
as being payable was such that the provision was in the nature of a penalty;
that is to say a requirement for a stipulated sum to be paid irrespective of, or
necessarily greater than, the loss likely to be sustained. The Court will
determine and award what it considers to be reasonable damages. Section 9 of The
Interest and Credit Charges (Regulations) ▇▇▇ ▇▇▇▇ provides that the Bermuda
Courts have discretion as to the amount of interest if any payable on the amount
of a judgment after the date of judgment. If the Court does not exercise that
discretion, then interest will accrue at the statutory rate which is currently
7% per annum.
(e) The obligations of the Company under the Guarantee will be
subject to any laws from time to time in effect relating to bankruptcy,
insolvency or liquidation or any other laws or other legal procedures affecting
generally the enforcement of creditors' rights and may also be the subject of
the statutory limitation of the time within which such proceedings may be
brought.
(f) To the extent that the Financing Documents, the Guarantee or
the transactions contemplated thereunder, create or give rise to the creation of
any charge over any assets of the Company, such charge will be registerable
under Part V of The Companies ▇▇▇ ▇▇▇▇ of Bermuda. The fee payable for
registration of a charge is $425.00. Registration is not compulsory and there is
no time limit within which it must be effected. Under Section 55 of the
Companies Act, any charge registered will have priority based on the date that
it is registered and not on the date of its creation and will have such priority
over any unregistered charge. Accordingly, it is advisable to register any such
charge.
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(g) Any provision in the Financing Documents or the Guarantee that
certain calculations and/or certificates will be conclusive and binding will not
be effective if such calculations are fraudulent or erroneous on their face and
will not necessarily prevent enquiry into the merits of any claim by an
aggrieved party.
(h) Where a party is vested with a discretion or may determine a
matter in its opinion, such discretion may have to be exercised reasonably or
such an opinion may have to be based on reasonable grounds.
(i) Searches in the register of companies at the office of the
Registrar of Companies and in the Supreme Court Causes Book at the Registry of
the Supreme Court are not conclusive and it should be noted that the register of
companies and the Supreme Court Causes Book do not reveal:
(i) whether an application to the Supreme Court for the
appointment of a receiver or manager has been presented;
(ii) details of matters which have been lodged for
registration but have not actually been registered or to the extent
they have been registered have not been disclosed or appear in the
public records at the date the search is concluded;
(iii) details of matters which should have been lodged for
registration but have not been lodged for registration at the date the
search is concluded; or
(iv) whether a receiver or manager has been appointed
privately out of the Supreme Court pursuant to the provisions of a
debenture or other security, unless notice of the fact has been entered
in the register of charges in accordance with the provisions of the
Act.
(j) A Bermuda Court may refuse to give effect to any provisions of
the Financing Documents or Guarantee in respect of costs of unsuccessful
litigation brought before the Court or where that Court has itself made an order
for costs.
This opinion is issued on the basis that it will be governed by and
construed in accordance with the provisions of Bermuda law and it is limited to
and is given on the basis of the current law and practice in Bermuda and will
not give rise to action in any other jurisdiction. It is issued solely for your
benefit for the purpose of the transactions described in the Guarantee and it is
not to be relied upon by any other person (other than permitted assigns and
transferees under the Financing Documents), or for any other purpose, without
our prior written consent.
Yours faithfully,
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EXHIBIT L
NEW BORROWER AGREEMENT
AGREEMENT dated as of ___________ among TYCO INTERNATIONAL (US) INC., a
Massachusetts corporation ("Tyco US"), TYCO GROUP S.a.r.l., a Luxembourg company
("Tyco Luxembourg"), and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent
(the "Agent").
R E C I T A L S:
WHEREAS, Tyco US is a party to a 364-Day Credit Agreement dated as of
February 13, 1998 (as the same has been or may hereafter be amended from time to
time, the "Credit Agreement") with the Banks listed therein and the Agent; and
WHEREAS, any Loans made to Tyco US by the Banks under the Credit
Agreement will be prepaid in full not later than the date of effectiveness
hereof; and
WHEREAS, Tyco US and Tyco Luxembourg have elected that Tyco Luxembourg
shall become the Borrower under the Credit Agreement and that Tyco US shall
cease to be the Borrower thereunder;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Credit Agreement.
SECTION 2. New Borrower. Upon the satisfaction of the conditions
referred to in Section 3.04 of the Credit Agreement, (i) each of the Banks shall
make a Loan to Tyco Luxembourg on the terms and conditions set forth in the
Credit Agreement, (ii) the proceeds of such Loans shall fund to the extent
necessary an inter-company loan by Tyco Luxembourg to Tyco US, which
inter-company loan shall fund in whole or in part the repayment of all loans to
Tyco US under the Credit Agreement and the Existing Agreements, (iii) Tyco US
shall execute a promissory note in favor of Tyco Luxembourg, in form reasonably
satisfactory to Tyco Luxembourg, to evidence such inter-company loans, (iv) Tyco
Luxembourg shall become a party to the Credit Agreement and shall be the
Borrower thereunder with all the rights of the Borrower thereunder and all
liabilities and obligations under the Credit Agreement and the Notes arising
from and after the effectiveness of this Agreement and (v) Tyco US shall be
released from all
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liabilities and obligations under the Credit Agreement and the Notes to the
extent such liabilities and obligations arise from and after the effectiveness
of this Agreement and shall cease to be a party to the Credit Agreement. Nothing
in this Section shall affect the obligations of Tyco US as a Subsidiary
Guarantor.
SECTION 3. Judicial Proceedings. (a) Consent to Jurisdiction. Tyco
Luxembourg irrevocably submits to the non-exclusive jurisdiction of any federal
or New York State court sitting in New York City over any suit, action or
proceeding arising out of or relating to the Financing Documents. Tyco
Luxembourg irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such court and any claim that any
suit, action or proceeding brought in such court has been brought in an
inconvenient forum. Tyco Luxembourg agrees that a final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon it and will be given effect in Luxembourg to the fullest extent
permitted by applicable law and may be enforced in any federal or New York State
court sitting in New York City (or any other courts to the jurisdiction of which
Tyco Luxembourg is or may be subject) by a suit upon such judgment, provided
that service of process is effected upon it in one of the manners specified
herein or as otherwise permitted by law.
(b) Appointment of Agent for Service of Process. Tyco Luxembourg
hereby irrevocably designates and appoints CT Corporation System having an
office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its
authorized agent, to accept and acknowledge on its behalf, service or any and
all process which may be served in any suit, action or proceeding of the nature
referred to in subsection (a) above in any federal or New York State court
sitting in New York City. Tyco Luxembourg represents and warrants that such
agent has agreed in writing to accept such appointment and that a true copy of
such designation and acceptance has been delivered to the Agent. Such
designation and appointment shall be irrevocable until all principal and
interest and all other amounts payable under the Financing Documents shall have
been paid in full in accordance with the provisions hereof. If such agent shall
cease so to act, Tyco Luxembourg covenants and agrees to designate irrevocably
and appoint without delay another such agent satisfactory to the Agent and to
deliver promptly to the Agent evidence in writing of such other agent's
acceptance of such appointment.
(c) Service of Process. Tyco Luxembourg hereby consents to process
being served in any suit, action, or proceeding of the nature referred to in
subsection (a) above in any federal or New York State court sitting in New York
City by service of process upon the agent of Tyco Luxembourg, as the case may
be, for service of process in such jurisdiction appointed as provided in
subsection (b) above; provided that, to the extent lawful and possible, written
notice of said service upon such agent shall be mailed by registered airmail,
postage prepaid, return receipt requested, to Tyco Luxembourg at its address
specified on the signature pages hereof or to any other address of which Tyco
Luxembourg shall have given written notice to the Agent. Tyco Luxembourg
irrevocably waives, to the fullest extent permitted by law, all claim of error
by reason of any such service and agrees that such service shall be deemed in
every respect effective
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service of process ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ in any such suit, action or proceeding
and shall, to the fullest extent permitted by law, be taken and held to be valid
and personal service upon and personal delivery to Tyco Luxembourg.
(d) No Limitation on Service or Suit. Nothing in this Section
shall affect the right of the Agent or any Bank to serve process in any other
manner permitted by law or limit the right of the Agent or any Bank to bring
proceedings against Tyco Luxembourg in the courts of any jurisdiction or
jurisdictions.
SECTION 4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. Counterparts; This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
TYCO INTERNATIONAL (US) INC.
By
--------------------------------------
Title:
By
--------------------------------------
Title:
TYCO GROUP S.a.r.l.
By
--------------------------------------
Title:
By
--------------------------------------
Title:
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
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Title:
4
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EXHIBIT M
Opinion of Counsel of Tyco Luxembourg
Matters to be covered include*:
(a) Counsel has reviewed (i) the 364-Day Credit Agreement and the
Extendible 364- Day Credit Agreement (the "Credit Agreements"), (ii) the Parent
Guarantee, (iii) the New Borrower Agreement, (iv) the Promissory Notes executed
by Tyco Luxembourg, (v) the [Articles of Organization and By-laws] of Tyco
Luxembourg and (vi) such other documents, records, certificates and instruments
as are relevant and necessary as the basis for its opinion.
(b) Tyco Luxembourg is a company duly organized and validly
existing under the laws of Luxembourg
(c) Tyco Luxembourg has all company powers and all material
governmental licenses, consents and approvals required to carry on its business
as now conducted (other than such powers or consents the failure of which to be
obtained could not reasonably be expected to have a Material Adverse Effect).
(d) The execution, delivery and performance by Tyco Luxembourg of
the New Borrower Agreement and the Promissory Notes, and the performance by Tyco
Luxembourg of the Credit Agreements (i) are within Tyco Luxembourg's company
powers, (ii) have been duly authorized by all necessary company action, (iii)
require no action by or filing with any governmental body, agency or official,
(iv) do not contravene or constitute a default under (A) applicable law or
regulation, (B) Tyco Luxembourg's charter or by-laws or (C) any agreement or
instrument governing Debt of Tyco Luxembourg or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon Tyco
Luxembourg.
(e) Each of the Credit Agreements and the New Borrower Agreement
constitutes a valid and binding agreement of Tyco Luxembourg, and each
Promissory Note constitutes a valid and binding obligation of Tyco Luxembourg.
(f) There is no action, suit or proceeding pending or threatened
against or affecting Tyco Luxembourg or any of its Subsidiaries in which there
is a reasonable possibility of an adverse decision which could reasonably be
expected to have a Material Adverse Effect or which in any manner draws into
question the validity of the Financing Documents.
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* Terms defined in the Credit Agreements and used herein, but not
otherwise defined herein, have the meanings ascribed thereto in the Credit
Agreements.
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(g) There is no tax, impost, deduction or withholding imposed by
Luxembourg or any political subdivision thereof on or by virtue of the
execution, delivery or enforcement of the Financing Documents or any other
agreement or instrument relating thereto.
(h) Each of the Financing Documents is in proper legal form under
the laws of Luxembourg for the enforcement thereof against Tyco Luxembourg under
the laws of Luxembourg.
(i) To ensure the legality, validity, enforceability or
admissibility in evidence of the Financing Documents in Luxembourg, it is not
necessary that the Financing Documents or any other document be filed or
recorded with any court or other authority in Luxembourg.
(j) The choice of the laws of the State of New York to govern the
Credit Agreements, the New Borrower Agreement and the Promissory Notes is a
valid and binding choice of law an will be recognized and applied by the courts
of Luxembourg.
(k) Any judgment obtained in a state or Federal court sitting in
the Borough of Manhattan, City of New York, State of New York, arising out of or
in relation to the obligations of Tyco Luxembourg under the Financing Documents
would be enforceable in Luxembourg against Tyco Luxembourg.