MASTER GUARANTEE
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AND LETTER OF CREDIT AGREEMENT
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Dated as of December 16, 2003
THIS MASTER GUARANTEE AND LETTER OF CREDIT AGREEMENT (this "Agreement") is
entered into by and between WYETH (the "Applicant"), a Delaware corporation, and
ABN AMRO Bank N.V. (together with its affiliates as set forth in Section 13.8,
the "Bank").
The Applicant may from time to time request that the Bank issue bank guarantees
in favor of third parties and one letter of credit for the account of the
Applicant. It is understood and agreed that, without affecting the obligations
of the Applicant hereunder, such guarantees will be issued to support potential
claims against the Applicant's wholly owned subsidiary AHP Manufacturing B.V.
("AHP"). The Applicant agrees that, except as provided below, any such bank
guarantee and such letter of credit shall be subject to the terms and provisions
of this Agreement, and the Applicant further agrees with and for the benefit of
the Bank as follows:
SECTION 1 CERTAIN DEFINITIONS. When used herein the following terms shall have
the following meanings (such definitions to be applicable to both the singular
and plural forms of such terms):
Acceptable Letter of Credit means a direct-pay letter of credit (i) issued in
the name of the Bank by a bank organized under the laws of a member state of the
Organisation for Economic Co-Operation and Development if such bank has a
long-term debt rating equal to or higher than A1 by Moody's and A+ by S&P, (ii)
drawable upon presentation by the Bank to the issuing bank of a sight draft
within five Business Days of its expiration date and payable on such expiration
date, (iii) with a term no longer than 90 days from the date of its issuance and
(iv) the terms of which shall include provisions permitting the Bank to draw on
such letter of credit at any time after the long-term debt rating of the issuing
bank shall fall below any one of the ratings referred to in clause (i) above and
such other terms as the Bank shall reasonably require.
Authorized Representative is defined in Section 6(g).
Business Day means any day on which the Bank is open for commercial banking
business at its office in New York, New York.
Cash Collateral Account is defined in Section 5.1.
Cash Collateralization Event is defined in Section 11.1.
Collateralization Date is defined in Section 4.7.
Collateralization Request Deadline is defined in Section 4.7.
Credits means, collectively, the Guarantees and the Letter of Credit.
Event of Default means any of the events described in Section 12.1.
Financing Lease means any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with generally
accepted accounting principles in effect in the United States of America from
time to time to be capitalized on a balance sheet of the lessee.
Fee Rate is defined in Section 7(a).
Guarantee Obligation means, as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Applicant in good faith.
Guarantees means, collectively, the SVG Guarantee and all Third Party
Guarantees.
Indebtedness of any Person at any date means (a) all indebtedness of such Person
for borrowed money or for the deferred purchase price of property or services
(other than current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or created
for the account of such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
Item means any draft, order, instrument, demand or other document drawn or
presented, or to be drawn or presented, under any Credit.
ISP means at any time the most recent International Standby Practices issued by
the Institute for International Banking Law & Practice, Inc.
Letter of Credit means the letter of credit issued by the Bank for the account
of the Applicant pursuant to Section 3.1, as amended or otherwise modified from
time to time.
Liabilities means all obligations of the Applicant to the Bank and its
successors and assigns, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing or due or to
become due, arising out of or in connection with this Agreement, any Guarantee,
any Letter of Credit or any instrument or document delivered in connection
herewith or therewith.
Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
Material Adverse Effect means a material adverse effect on the business,
operations, property or condition (financial or otherwise) of the Applicant, or
the ability of the Applicant to perform its obligations under this Agreement, or
the validity or enforceability of this Agreement or the rights or remedies of
the Bank.
Moody's means ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇▇▇'▇ Rating means, at any time, the rating level (it being understood that
numerical modifiers and (+)(-) modifiers shall constitute rating levels) then
assigned by Moody's to the Applicant's senior unsecured long-term debt.
Permitted Investments means investments satisfying the requirements of Annex 1
hereto.
Person means any natural person, corporation, partnership, trust, limited
liability company, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other capacity.
Prime Rate means the rate per annum established by the Bank from time to time as
its "Prime Rate" for loans to its commercial customers. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer.
Request means, at any time, a request (which shall be in writing, including by
facsimile) for a Third Party Guarantee to be issued by the Bank, which request
shall consist of (i) a letter from the Applicant (signed by an Authorized
Representative of the Applicant), specifying (a) the requested issuance date,
(b) the name and contact information of the Person to whom such Third Party
Guarantee is to be delivered and (c) the manner of such delivery, and (ii) a
joint letter from the Applicant (signed by an Authorized Representative of the
Applicant) and SVG authorizing or consenting to such issuance and specifying (a)
the name of each third party in favor of which the respective Third Party
Guarantee is requested to be issued and (b) the maximum amount covered by such
Third Party Guarantee.
S&P means Standard & Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
S&P Rating means, at any time, the rating level (it being understood that
numerical modifiers and (+)(-) modifiers shall constitute rating levels) then
assigned by S&P to the Applicant's senior unsecured long-term debt.
Significant Subsidiary means any subsidiary of the Applicant that satisfies the
requirements of Rule 1-02(w) of Regulation S-X as adopted by the Securities and
Exchange Commission under the provisions of the Securities Act of 1933 and the
Securities Exchange Act of 1934 as in force on the date of this Agreement.
SVG means Schuurmans & Van Ginneken B.V.
SVG Guarantee means (i) initially, a bank guarantee in substantially the form of
Exhibit A hereto and (ii) after the issuance of the first Third Party Guarantee,
a bank guarantee in substantially the form of Exhibit B hereto, in each case
issued by the Bank in favor of SVG.
Third Party Guarantee means a bank guarantee in substantially the form of
Exhibit C hereto (with such changes as the Applicant, the third party, SVG and
the Bank shall reasonably agree to) issued by the Bank in favor of the third
party or parties specified in the Request therefor.
UCC means at any time the Uniform Commercial Code as then in effect in the State
of New York.
UCP means at any time the most recent Uniform Customs and Practice for
Documentary Credits issued by the International Chamber of Commerce.
Unmatured Event of Default means any event which if it continues uncured will,
with lapse of time or notice or both, constitute an Event of Default.
SECTION 2 GUARANTEES
2.1 Issuance of Guarantees. Subject to the terms and conditions of this
Agreement, (i) not later than close of business, Rotterdam, The Netherlands
time, on December 18, 2003 the Bank shall issue the SVG Guarantee and, provided
that the Bank has received a written notice from SVG indicating the contact
information of the Person who should receive the SVG Guarantee, deliver the SVG
Guarantee by courier to such Person and (ii) following receipt by the Bank at
its office in Rotterdam, The Netherlands of any Request, the Bank shall issue a
Third Party Guarantee in favor of the third party or parties specified in such
Request.
2.2 Certain Terms of Guarantees. The aggregate maximum amount covered by the SVG
Guarantee and all Third Party Guarantees issued by the Bank hereunder shall not
exceed EUR135,000,000 at any time outstanding. No Guarantee shall expire later
than December 10, 2018.
2.3 Procedure for Issuance of Third Party Guarantees. Subject to receipt by the
Bank at its office in Rotterdam, The Netherlands, not later than three Business
Days prior to the date of a proposed issuance of any Third Party Guarantee (or
such later date as the Bank shall agree) of a Request for the issuance of such
Third Party Guarantee and subject to receipt (at the time such Third Party
Guarantee is to be issued) by the Bank at its office in Rotterdam, The
Netherlands, of the original of the then outstanding SVG Guarantee for
replacement, the Bank shall (i) deliver to the Person indicated in the Request
the new Third Party Guarantee and (ii) replace the then outstanding SVG
Guarantee with a new SVG Guarantee in substantially the form of Exhibit B
hereto, which shall specify the name of each third party to whom Third Party
Guarantees have theretofore been issued and the maximum amount covered by each
such Third Party Guarantee. A Request may be sent by facsimile, by United States
mail, by overnight courier, by personal delivery or by any other means
acceptable to the Bank. If a Third Party Guarantee is to have changes from, or
is to be in a different form from, Exhibit C hereto, such changes or other form
shall be agreed upon between the Applicant, the third party, SVG, and both
branches of the Bank before the Request is furnished.
SECTION 3 ISSUANCE OF LETTER OF CREDIT. Subject to the terms and conditions of
this Agreement, the Bank shall issue a Letter of Credit substantially in the
form of Exhibit D hereto in the amount of EUR135,000,000 not later than December
17, 2003.
SECTION 4 REIMBURSEMENT OBLIGATIONS; RESPONSIBILITIES, ETC.
4.1 Reimbursement Obligations. The Applicant hereby agrees to reimburse the Bank
forthwith upon demand in an amount equal to any payment or disbursement made by
the Bank under any Guarantee, any Letter of Credit or any time draft issued
pursuant thereto, together with interest on the amount so paid or disbursed by
the Bank from and including the date of payment or disbursement to but not
including the date the Bank is reimbursed by the Applicant at a rate equal to
the Prime Rate from time to time in effect plus 2% per annum (or, if less, the
maximum rate permitted by applicable law). Without limiting the obligations of
the Applicant hereunder to reimburse the Bank for any payments or disbursements
by the Bank under the Letter of Credit, it is acknowledged and agreed that if
any such payment or disbursement under the Letter of Credit is made to reimburse
the Bank for a payment or disbursement under a Guarantee, then the obligation of
the Applicant to reimburse the Bank for such payment or disbursement under the
Guarantee shall be discharged to the extent of such payment or disbursement
under the Letter of Credit. The obligation of the Applicant to reimburse the
Bank under this Section 4 for payments and disbursements made by the Bank under
any Guarantee, any Letter of Credit or any time draft issued pursuant thereto
shall be absolute and unconditional under any and all circumstances, including,
without limitation, the following:
(a) any failure of any Item presented under any Credit to comply strictly with
the terms of such Credit;
(b) the legality, validity, regularity or enforceability of any Credit or of
any Item presented thereunder;
(c) any defense based on the identity of the transferee of any Credit or the
sufficiency of the transfer if such Credit is transferable;
(d) the existence of any claim, set-off, defense or other right that the
Applicant may have at any time against any beneficiary or transferee of any
Credit, the Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or any unrelated
transaction;
(e) any Item presented under any Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(f) honor of a demand for payment presented electronically even if any Credit
requires that demand be in the form of a draft;
(g) waiver by the Bank of any requirement that exists for the Bank's protection
and not the protection of the Applicant or any waiver by the Bank which
does not in fact materially prejudice the Applicant;
(h) any payment made by the Bank in respect of an Item presented after the date
specified as the expiration date of, or the date by which documents must be
received under, any Credit if payment after such date is authorized by the
ISP, the UCC or the UCP, as applicable; or
(i) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing;
provided that the Applicant shall not be obligated to reimburse the Bank for any
wrongful payment or disbursement made by the Bank under any Guarantee, any
Letter of Credit as a result of any act or omission constituting gross
negligence, bad faith or willful misconduct on the part of the Bank.
4.2 Discrepancies. (a) The Applicant agrees that it will promptly examine any
and all instruments and documents delivered to it from time to time in
connection with any Credit, and if the Applicant has any claim of non-compliance
with its instructions or of discrepancies or other irregularity, the Applicant
will immediately (and, in any event, within three Business Days after delivery
thereof) notify the Bank thereof in writing, and the Applicant shall be deemed
to have waived any claim against the Bank unless such notice is given within
such time period. Without limiting the foregoing, if the Bank makes any payment
or disbursement under a Credit and the Applicant does not send a notice to the
Bank within three Business Days objecting to such payment or disbursement and
specifying in reasonable detail the discrepancy or irregularity which is the
basis for such objection, then the Applicant shall be precluded from making any
objection to the Bank's honor of the presentation with respect to which such
payment or disbursement was made (but shall not be precluded from asserting any
objection to any different presentation under the same or a different Credit).
(b) The Applicant's acceptance or retention of any documents presented under or
in connection with a Credit (including originals or copies of documents sent
directly to the Applicant) or of any property for which payment is supported by
a Credit shall ratify the Bank's honor of the documents and absolutely preclude
the Applicant from raising a defense or claim with respect to the Bank's honor
of the relevant presentation.
4.3 Documents. The Applicant agrees that the Bank and its correspondents: (a)
may accept as complying with the applicable Credit any Item drawn, issued or
presented under such Credit which is issued or purportedly issued by an agent,
executor, trustee in bankruptcy, receiver or other representative of the party
identified in such Credit as the party permitted to draw, issue or present such
Item; and (b) may in its or their discretion, but shall not be obligated to,
accept or honor (i) any Item which substantially complies with the terms of the
applicable Credit; (ii) any Item which substantially complies under the laws,
rules, regulations and general banking or trade customs and usages of the place
of presentation, negotiation or payment; (iii) drafts which fail to bear any or
adequate reference to the applicable Credit; (iv) any Item presented to the Bank
after the stated expiration date of a Credit but within any applicable time
period during which such Credit may be honored in accordance with the UCP, the
UCC and/or the ISP, as applicable (and, in any event, any Item presented to the
Bank on the Business Day immediately following the stated expiration date of any
Credit, if such stated expiration date falls on a day which is not a Business
Day); or (v) any Item which substantially complies with the requirements of the
UCP, the UCC and/or the ISP, as applicable. In determining whether to pay under
any Credit, the Bank shall have no obligation to the Applicant or any other
Person except to confirm that the Items required to be delivered under such
Credit appear to have been delivered and appear on their face to substantially
comply with the requirements of such Credit. For purposes of the foregoing, an
Item "substantially complies" unless there are discrepancies in the presentation
which appear to be substantial and which reflect corresponding defects in the
beneficiary's performance in the underlying transaction. A discrepancy is not
substantial if it is unrelated or immaterial to the nature or amount of the
Applicant's loss. For example, documents honored by the Bank that do not comply
with the timing requirements of the Credit for presenting or dating any required
beneficiary statement nonetheless substantially comply if those timing
requirements are not material in determining whether the underlying agreement
has been substantially performed or violated.
4.4 Exculpation. In addition to the exculpatory provisions contained in the UCP,
the UCC and/or the ISP, as applicable, the Bank and its correspondents shall not
be responsible for, and the Applicant's obligation to reimburse the Bank shall
not be affected by, (a) compliance with any law, custom or regulation in effect
in the country of issuance, presentation, negotiation or payment of any Letter
of Credit, (b) any refusal by the Bank to honor any Item because of an
applicable law, regulation or ruling of any governmental agency, whether now or
hereafter in effect, (c) any action or inaction required or permitted under the
UCC, the UCP, the ISP or the United Nations Convention on Independent Guarantees
and Stand-by Letters of Credit, in each case as applicable, or (d) any act or
the failure to act of any agent or correspondent of the Bank, including, without
limitation, failure of any such agent or correspondent to pay any Item because
of any law, decree, regulation, ruling or interpretation of any governmental
agency, unless due to the gross negligence, bad faith or willful misconduct of
the Bank.
4.5 Risks. The Applicant assumes all risks of the acts or omissions of any
beneficiary or transferee of any Credit (it being understood that such
assumption is not intended to, and shall not, preclude the Applicant from
pursuing any right or remedy it may have against any such beneficiary or
transferee). The Applicant further agrees that any action or omission by the
Bank under or in connection with any Credit or any related Item, document or
property shall, unless in breach of good faith or in the event of gross
negligence or willful misconduct, be binding on the Applicant and shall not put
the Bank under any resulting liability to the Applicant. Without limiting the
foregoing, the Applicant agrees that in no event shall the Bank be liable for
incidental, consequential, punitive, exemplary or special damages.
4.6 Limitation on Bank's Obligations. Without limiting any other provision
herein, the Bank is expressly authorized and directed to honor any request for
payment which is made under and in compliance with the terms of any Credit
without regard to, and without any duty on the part of the Bank to inquire into,
the existence of any dispute or controversy between any of the Applicant, the
beneficiary of any Credit or any other Person, or the respective rights, duties
or liabilities of any of them, or whether any facts represented in any Item
presented under a Credit are true or correct. Furthermore, the Applicant agrees
that the Bank's obligation to the Applicant shall be limited to honoring
requests for payment made under and in compliance with the terms of any Credit,
and the Bank's obligation remains so limited even if the Bank has prepared or
assisted in the preparation of the wording of any Credit or any Item required to
be presented thereunder and even if the Bank is otherwise aware of the
underlying transaction giving rise to any Credit.
4.7 Collateralization Date. If on or prior to October 1, 2005 (the
"Collateralization Request Deadline") the Bank delivers written notice to the
Applicant requesting cash collateralization of the Letter of Credit, then, by
not later than December 15, 2005 (the "Collateralization Date") the Applicant
shall either (i) deliver to the Bank cash collateral in an amount equal to the
maximum amount available to be drawn under the Letter of Credit or such lesser
amount as the Bank may specify in its demand, such cash collateral to be held,
invested, administered and applied as provided in Section 5 hereof or (ii)
deliver to the Bank an Acceptable Letter of Credit in an amount equal to the
maximum amount available to be drawn under the Letter of Credit. If the notice
referred to in the foregoing sentence is not delivered to the Applicant on or
prior to the Collateralization Request Deadline, the Collateralization Date
shall automatically be extended to December 15, 2006, provided that the
obligation described in the preceding sentence of the Applicant to deliver to
the Bank cash collateral or an Acceptable Letter of Credit not later than such
extended Collateralization Date shall not be subject to the Bank's delivery of
any notice to the Applicant. For the avoidance of doubt, the Bank may present a
sight draft to the issuing bank of any such Acceptable Letter of Credit
delivered pursuant to this Section 4.7 at any time within five Business Days
prior to its expiration date.
SECTION 5 CASH COLLATERAL ACCOUNT
5.1 Cash Collateral Account. If the Applicant becomes obligated to deliver to
the Bank cash collateral in accordance with Section 4.7, Section 11.2 or Section
12.2, the Applicant shall deposit such cash collateral into an account to be
called "Wyeth Cash Collateral Account" (the "Cash Collateral Account")
established in the name of the Applicant and maintained at the principal London
office of the Bank.
5.2 Grant of Security Interest. As security for the prompt payment in full when
due of the Liabilities, the Applicant hereby charges in favor of the Bank all of
the Applicant's right, title and interest in, to and under (i) the Cash
Collateral Account, (ii) all cash from time to time on deposit in the Cash
Collateral Account and (iii) the products and proceeds thereof (together with
the cash from time to time on deposit in the Cash Collateral Account, the
"Deposit"), all with full title guarantee and by way of first fixed charge. This
Agreement shall constitute notice to the Bank of the charge constituted by this
Section 5.2.
5.3 Set-Off. The Bank shall be entitled, without prior notice to the Applicant,
to set-off or transfer all or part of the Deposit in or towards satisfaction of
any of the Liabilities when they are due and payable but unpaid.
5.4 The Deposit. Unless the Bank otherwise agrees in writing, the Deposit will
be maintained on the basis that it will mature on the first date on which (a)
there are no Liabilities and (b) the Bank is under no obligation (actual or
contingent) to issue any Guarantees or provide other financial accommodation
which, if issued or provided, would give rise to any Liabilities, provided,
however, that if at the close of business in London on any date on which any of
the Liabilities shall have become due and payable any of them remain unpaid, the
Deposit shall then mature to the extent of an amount equal to the amount of such
Liabilities remaining unpaid (or, if less, the amount of the Deposit). The Bank
shall be entitled, when the Deposit matures and at any time thereafter, to
exercise in relation thereto any rights of set-off, combination or consolidation
to which it is entitled under this Agreement or by law.
5.5 Restrictions on Assignment. The Applicant's rights in relation to the Cash
Collateral Account and the Deposit are incapable of assignment or other disposal
and of being made the subject of any encumbrance or other security interest save
one in favor of the Bank, and the Applicant agrees that it will not purport to
assign or otherwise dispose thereof, or create or permit to subsist any
encumbrance or other security interest on or in relation thereto, save with the
prior written consent of the Bank.
5.6 Miscellaneous. This Agreement shall remain in full force and effect as a
continuing arrangement until it terminates in accordance with Section 13.12. All
payments made by the Applicant to the Bank at any time after the Bank receives
notice of the purported creation of any subsequent mortgage, assignment, charge
or other interest affecting the Cash Collateral Account or the Deposit shall be
treated as having been credited to a new account of the Applicant and not as
having been applied in reduction of the Liabilities as at the time of that
notice.
5.7 Investment of Balance in Cash Collateral Account. The cash balance standing
to the credit of the Cash Collateral Account may be invested from time to time
in such Permitted Investments as the Applicant shall determine, which Permitted
Investments shall be held in the name of the Applicant or the Bank and be under
the control of the Bank, if the Applicant and the Bank have entered into a
charge agreement pursuant to which (i) the Bank has a valid and perfected
security interest subject to no equal or prior lien in such Permitted
Investments and (ii) the Bank is entitled, at any time and from time to time
after the occurrence and during the continuance of an Event of Default or
Unmatured Event of Default, in its sole discretion to elect to liquidate any
such Permitted Investments and exercise, with respect to the proceeds of any
such liquidation, any rights of set-off, combination or consolidation to which
it is entitled under this Agreement or by law with respect to the Deposit,
provided that the Bank shall incur no liability toward the Applicant or any of
its affiliates merely by reason of obtaining a rate of return on such Permitted
Investments which is lower than the rate the Applicant or such affiliates might
otherwise have obtained.
5.8 No Waiver. It is understood and agreed that no delay on the part of the Bank
in demanding cash collateral pursuant to Section 11.2 or Section 12.2, and no
demand for an amount of cash collateral which is less than the maximum amount
thereby authorized, shall be deemed a waiver of the Bank's right to make
subsequent demand in accordance therewith.
5.9 Return of Cash Collateral. Unless an Event of Default or Unmatured Event of
Default shall have occurred and be continuing, the Bank shall (i) promptly
return to the Applicant cash collateral received by the Bank pursuant to Section
4.7 if and to the extent that the Letter of Credit expires unpaid, is returned
to the Bank for cancellation or is reduced, (ii) promptly return to the
Applicant cash collateral received by the Bank pursuant to Section 11.2 upon the
▇▇▇▇▇'▇ Rating and the S&P Rating rising to a rating level equal or higher than
the rating level in effect immediately prior to the first occurrence of a Cash
Collateralization Event and (iii) within five Business Days after the end of
each fiscal quarter of the Applicant, remit to the Applicant any amounts on
deposit in the Cash Collateral Account which exceed the maximum amount available
to be drawn under the Letter of Credit.
5.10 Top-Up Events. If at any time (i) the Applicant is required hereunder to
make Deposits in the Cash Collateral Account and (ii) the aggregate amount of
such Deposits is less than the maximum amount available to be drawn under the
Letter of Credit, then the Bank may demand that the Applicant deliver to the
Bank, within five Business Days of such demand, cash collateral in an amount
sufficient so that the aggregate amount of the Deposits equals the maximum
amount available to be drawn under the Letter of Credit, such cash collateral to
be held, invested, administered and applied as provided in this Section 5.
5.11 Further Assurances. The Applicant agrees that, from time to time upon the
written request of the Bank, the Applicant will execute and deliver such further
documents and do such other acts and things as the Bank may reasonably request
in order to fully effect the purposes of this Section.
SECTION 6 REPRESENTATIONS AND WARRANTIES. The Applicant represents and warrants
to the Bank that:
(a) Organization, etc. The Applicant is duly organized or formed, validly
existing and (to the extent applicable under the laws of the relevant
jurisdiction) in good standing under the laws of the jurisdiction of its
organization or formation, and the Applicant is duly qualified and in good
standing as a foreign entity authorized to do business in each other
jurisdiction where, because of the nature of its activities or properties,
such qualification is required, except for such qualifications the absence
of which would not reasonably be expected to have a Material Adverse
Effect.
(b) Authorization; No Conflict. The Applicant's execution and delivery of this
Agreement and each Request, the Applicant's procurement of the issuance of
Guarantees in favor of third parties and Letter of Credit for its account
hereunder and the Applicant's performance of its obligations under this
Agreement and each Request are within the organizational powers of the
Applicant, have been duly authorized by all necessary organizational
action, have received all necessary governmental approval (if any shall be
required), and do not and will not contravene or conflict with, or result
in or require the imposition of any lien or security interest under, any
provision of law or of the charter or by-laws of the Applicant or of any
indenture, loan agreement or other contract, or any judgment, order or
decree which is binding upon the Applicant.
(c) Validity and Binding Nature. This Agreement is, and upon delivery to the
Bank each Request will be, the legal, valid and binding obligation of the
Applicant, enforceable against the Applicant in accordance with its terms,
subject to bankruptcy, insolvency and similar laws of general application
affecting the rights of creditors generally, and to general principles of
equity.
(d) Approvals. No material authorization, approval or consent of, or notice to
or filing with, any governmental or regulatory authority is required to be
made in connection with the execution and delivery by the Applicant of this
Agreement or the issuance of any Guarantee in favor of third parties or any
Letter of Credit for the account of the Applicant pursuant hereto.
(e) Existing Revolver. Each of the Representations and Warranties contained in
the 3-Year Credit Agreement dated as of March 3, 2003, among the Applicant,
the Lenders party thereto (including the Bank), the Co-Lead Arrangers and
Joint Book Managers party thereto, the Syndication Agent party thereto, the
Co-Documentation Agents party thereto and JPMorgan Chase Bank, as
Administrative Agent, as in effect on the date hereof, is true and correct
in all material respects as if made on the date of this Agreement.
(f) No Default. No Event of Default or Unmatured Event of Default has occurred
and is continuing.
(g) Incumbency Certificate. The Applicant shall provide to the Bank on the date
hereof a certificate (an "Incumbency Certificate") specifying the name and
title, and including a specimen signature, of each representative of the
Applicant who is authorized to execute a Request on behalf of the Applicant
(each, an "Authorized Representative"). The Applicant agrees that (i)
unless previously notified in writing to the contrary by the Applicant, the
Bank may rely on such certificate for purposes of determining whether any
Request delivered to the Bank has been authorized by the Applicant and (ii)
at any time the Applicant wishes to designate a new Authorized
Representative, the Applicant shall deliver to the Bank a new Incumbency
Certificate including the names, titles and specimen signatures of all
Authorized Representatives. Any determination by the Bank based on an
Incumbency Certificate that a Request has been authorized by the Applicant
shall be conclusive absent manifest error, regardless of a change in title
of the Authorized Representative executing such Request.
SECTION 7 FEES. (a) The Applicant shall pay to the Bank a fee for the issuance
and maintenance of the Letter of Credit at a rate per annum (the "Fee Rate")
calculated on the maximum amount available from time to time to be drawn under
the Letter of Credit in accordance with the following schedule (provided that,
at any time the Applicant delivers to the Bank (i) pursuant to Section 4.7, an
Acceptable Letter of Credit, or (ii) pursuant to Section 4.7, Section 11.2 or
Section 12.2 cash collateral in an amount equal to the maximum amount available
to be drawn under the Letter of Credit, the Fee Rate shall be the applicable
rate indicated in the column labeled "Cash Collateralized Fee Rate"):
--------------------------------------------------------------------------------
▇▇▇▇▇'▇ Rating S&P Rating Fee Rate Cash Collateralized Fee
Rate
--------------------------------------------------------------------------------
A 2 or above A or above 0.500% p.a. 0.125% p.a.
--------------------------------------------------------------------------------
A 3 A- 0.750% p.a. 0.150% p.a.
--------------------------------------------------------------------------------
Baa 1 BBB+ 1.000% p.a. 0.175% p.a.
--------------------------------------------------------------------------------
Baa 2 BBB 1.250% p.a. 0.200% p.a.
--------------------------------------------------------------------------------
Baa 3 or below BBB- or below 1.500% p.a. 0.225% p.a.
--------------------------------------------------------------------------------
Such fees shall be payable on the last Business Day of each consecutive calendar
quarter, commencing on the first such day to occur after the date hereof. In
case of a split Moody's and S&P Rating, the higher rating shall prevail, unless
the difference is two levels or more, in which case a rating which is one level
above the lower rating shall prevail. The Fee Rate shall change as and when a
relevant change shall occur in the ▇▇▇▇▇'▇ Rating or the S&P Rating.
(b) The Applicant agrees to pay the Bank all other reasonable fees of the
Bank (at the rates specified by the Bank from time to time in schedules
delivered by the Bank to the Applicant) with respect to each Letter of Credit
(including, without limitation, all fees associated with any amendment to,
drawing under, banker's acceptance pursuant to, or transfer of a Letter of
Credit), such fees to be payable on demand by the Bank therefor.
(c) Without limiting the obligations of the Applicant hereunder, the
Applicant hereby requests that the Bank, and the Bank agrees to, send invoices
for fees directly to AHP.
SECTION 8 COMPUTATION OF INTEREST AND FEES. All interest and fees hereunder
shall be computed for the actual number of days for which such interest or fees
are due elapsed on the basis of a year of 365 days (in the case of interest) or
360 days (in the case of fees). The interest rate applicable to Guarantee and
Letter of Credit reimbursement obligations shall change simultaneously with each
change in the Prime Rate.
SECTION 9 MAKING OF PAYMENTS. (a) All payments of principal of, or interest on,
letter of credit reimbursement obligations, all payments of fees and all other
payments hereunder shall be made by the Applicant in Euros and in immediately
available funds to the Bank at its principal office in Chicago not later than
12:30 P.M., Chicago time, on the date due, and funds received after that time
shall be deemed to have been received by the Bank on the next Business Day. If
any payment of principal, interest or fees falls due on a day which is not a
Business Day, then such due date shall be extended to the next Business Day, and
additional interest shall accrue and be payable for the period of such
extension.
(b) The Applicant irrevocably agrees that the Bank or any affiliate thereof
may (but neither the Bank nor any such affiliate shall be obligated to) debit
any deposit account of the Applicant in an amount sufficient to pay any fee,
reimbursement obligation or other amount that is due and payable hereunder. The
Bank or the applicable affiliate shall promptly notify the Applicant of any such
debit (but failure of the Bank or any such affiliate to do so shall not impair
the effectiveness thereof or impose any liability on the Bank or such
affiliate).
(c) The Applicant shall reimburse the Bank for each payment under a Letter
of Credit in the same currency in which such payment was made; provided that, if
the Bank so requests (in its sole discretion), the Applicant shall reimburse the
Bank in United States dollars for any payment under a Letter of Credit made in a
foreign currency at the rate at which the Bank could sell such foreign currency
in exchange for United States dollars for transfer to the place of payment of
such payment or, if there is no such rate, the United States dollar equivalent
of the Bank's actual cost of settlement. The Applicant agrees to pay the Bank on
demand in United States dollars such amounts as the Bank may be required to
expend to comply with any and all governmental exchange regulations now or
hereafter applicable to the purchase of foreign currency.
(d) All payments by the Applicant hereunder shall be made free and clear of
and without deduction for any present or future taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by the
Bank's net income or receipts (such non-excluded items being called "Taxes"). If
any withholding or deduction from any payment to be made by the Bank hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Applicant will
(i) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(ii) promptly forward to the Bank an official receipt or other
documentation reasonably satisfactory to the Bank evidencing such payment
to such authority; and
(iii) pay to the Bank such additional amount as is necessary to ensure
that the net amount actually received by the Bank will equal the full
amount the Bank would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against the Bank or on any payment
received by the Bank hereunder, the Bank may pay such Taxes and the Applicant
shall promptly pay such additional amount (including any penalty, interest or
expense) as is necessary in order that the net amount received by the Bank after
the payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount the Bank would have received had no such Taxes been asserted.
If the Applicant fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Bank the required receipts or other required
documentary evidence, the Applicant shall indemnify the Bank for any incremental
Tax, interest, penalty or expense that may become payable by the Bank as a
result of such failure.
SECTION 10 INCREASED COSTS. If, after the date hereof, the adoption of, or any
change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank with any
request, guideline or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency,
(a) affects or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and (taking
into consideration the Bank's or such controlling corporation's policies
with respect to capital adequacy) the Bank determines that the amount of
such capital is increased as a consequence of this Agreement or the
Credits; or
(b) imposes, modifies or deems applicable any reserve (including, without
limitation, any reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by the Bank with
respect to letters of credit or guarantees, or imposes on the Bank any
other condition affecting this Agreement or any Credit, and the Bank
determines that the result of any of the foregoing is to increase the cost
to, or to impose a cost on, the Bank of issuing or maintaining any Credit
or of making any payment or disbursement under any Credit, or to reduce the
amount of any sum receivable by the Bank under this Agreement;
then within ten Business Days after demand by the Bank (which demand shall be
accompanied by a statement setting forth in reasonable detail the basis of such
demand and a calculation thereof in reasonable detail), the Applicant shall pay
directly to the Bank such additional amount as will compensate the Bank for such
increased capital requirement, such increased cost or such reduction, as the
case may be. Determinations and statements of the Bank pursuant to this Section
10 shall be conclusive absent manifest error, and the provisions of this Section
10 shall survive termination of this Agreement.
SECTION 11 CASH COLLATERALIZATION EVENTS AND THEIR EFFECT.
11.1 Cash Collateralization Events. Each of the following shall constitute
a Cash Collateralization Event under this Agreement:
11.1.1 the ▇▇▇▇▇'▇ Rating shall fall below Baa 1 and the S&P Rating
shall fall below BBB+; or
11.1.2 either the ▇▇▇▇▇'▇ Rating or the S&P Rating shall, in a single
event, fall two or more rating levels to a level below Baa 1 or BBB+ (as
the case may be).
11.2 Effect of Cash Collateralization Event. If any Cash Collateralization
Event shall occur and be continuing, the Bank may demand that the Applicant
deliver to the Bank, within ten Business Days of such demand, cash collateral in
an amount equal to the maximum amount available to be drawn under the Letter of
Credit, whereupon the Applicant shall immediately become obligated to deliver to
the Bank within ten Business Days cash collateral in an amount equal to the
maximum amount available to be drawn under Letter of Credit, such cash
collateral to be held, invested, administered and applied as provided in Section
5 hereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall constitute an Event of
Default under this Agreement:
12.1.1 Non-Payment of Liabilities, etc. Default in the payment when
due of any principal of any Liabilities; or default, and continuance
thereof for five days after notice thereof from the Bank, in the payment
when due of any interest on any Liabilities, fees or other amounts payable
by the Applicant hereunder.
12.1.2 Bankruptcy, etc. The Applicant or any guarantor of the
Liabilities shall become insolvent or admit in writing its inability to pay
debts as they mature, or the Applicant or any such guarantor shall apply
for, consent to or acquiesce in the appointment of a trustee or receiver,
or in the absence of such application, consent or acquiescence, a trustee
or receiver is appointed for the Applicant or any such guarantor, or any
proceeding under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is instituted by or against the Applicant or any
such guarantor and, if instituted against the Applicant or such guarantor,
remains for 60 days undismissed, or any writ of attachment is issued
against any substantial portion of the Applicant's or any such guarantor's
property and is not released within 60 days of service, or the Applicant or
any such guarantor takes any action to authorize, or in furtherance of, any
of the foregoing.
12.1.3 Cross Default. The Applicant or any of its Significant
Subsidiaries shall (i) default in any payment of principal of or interest
on any Indebtedness (other than the Liabilities) in a principal amount
outstanding of at least $100,000,000 in the aggregate for the Applicant and
its Significant Subsidiaries or in the payment of any matured Guarantee
Obligation in a principal amount outstanding of at least $100,000,000 in
the aggregate for the Applicant and its Significant Subsidiaries beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument
or agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness in a principal
amount outstanding of at least $100,000,000 in the aggregate for the
Applicant and its Significant Subsidiaries or Guarantee Obligation in a
principal amount outstanding of at least $100,000,000 in the aggregate for
the Applicant and its Significant Subsidiaries or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable.
12.1.4 Representations and Warranties. Any representation or warranty
made by the Applicant herein or in any writing furnished in connection with
or pursuant to this Agreement shall be false or misleading in any material
respect on or as of the date made.
12.1.5 Cash Collateralization Event. A Cash Collateralization Event
shall have occurred and be continuing and the Applicant, after being
demanded therefor by the Bank, shall have failed to deliver to the Bank
within ten Business Days cash collateral in an amount equal to the maximum
amount available to be drawn under the Letter of Credit.
12.1.6 Top-Up Events. An event described in Section 5.10 shall occur
and the Applicant, after being demanded therefor by the Bank, shall have
failed to deliver to the Bank, within five Business Days of such demand,
cash collateral in an amount sufficient so that the aggregate amount of the
Deposits equals the maximum amount available to be drawn under the Letter
of Credit.
12.2 Effect of Event of Default. If any Event of Default described in
Section 12.1.2 shall occur, all outstanding Liabilities shall immediately become
due and payable and the Applicant shall immediately become obligated to deliver
to the Bank cash collateral in an amount equal to the maximum amount available
to be drawn under the Letter of Credit; and if any other Event of Default shall
occur, the Bank may declare all outstanding Liabilities to be due and payable
and may demand that the Applicant immediately deliver to the Bank cash
collateral in an amount equal to the maximum amount available to be drawn under
the Letter of Credit, whereupon all outstanding Liabilities shall become
immediately due and payable and the Applicant shall immediately become obligated
to deliver to the Bank cash collateral in an amount equal to the maximum amount
available to be drawn under the Letter of Credit. All cash collateral required
to be delivered pursuant to this Section 12.2 shall be held, invested,
administered and applied as provided in Section 5 hereof. The Bank shall
promptly advise the Applicant of any such declaration, but failure to do so
shall not impair the effect of such declaration.
SECTION 13 GENERAL.
13.1 Waiver; Amendments. No delay on the part of the Bank in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or remedy preclude other or further
exercise thereof, or the exercise of any other right, power or remedy. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement or any Credit issued hereunder shall be effective unless the
same shall be in writing and signed and delivered by the Bank and the Applicant,
and then any such amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
13.2 Notices. (a) Except as otherwise expressly provided herein, all notices
hereunder shall be in writing (including facsimile and electronic transmission,
which shall be considered original writings). Notices given by mail shall be
deemed to have been given three Business Days after the date sent if sent by
registered or certified mail, postage prepaid, to the applicable party at its
address shown below its signature hereto or at such other address as such party
may, by written notice received by the other party to this Agreement, have
designated as its address for notices. Notices given by facsimile or electronic
transmission shall be deemed to have been given when sent. Notices sent by any
other means shall be deemed to have been given when received (or when delivery
is refused).
(b) The Bank may rely on any writing (including any facsimile, any electronic
transmission or any information on a computer disk or similar medium which may
be reduced to writing), that the Bank believes in good faith to have been
received from an authorized officer, employee or representative of the
Applicant, and the Bank shall not be liable for any action taken in good faith
with respect to any writing, message or instruction from an unauthorized person.
The Bank shall not be under any duty to verify the identity of any person
submitting any Request or other writing or making any other communication
hereunder. Notwithstanding the foregoing, the Bank is not obligated to recognize
the authenticity of any request to issue, amend, honor or otherwise act on any
Credit issued hereunder that is not evidenced to the Bank's satisfaction by a
writing originally signed by a person the Applicant has certified is authorized
to act for the Applicant hereunder or by a message or instruction authenticated
to the Bank's satisfaction.
13.3 Costs, Expenses and Taxes; Indemnification. (a) The Applicant agrees to pay
on demand all reasonable out-of-pocket costs and expenses of the Bank (including
the reasonable fees and charges of counsel for the Bank) in connection with (i)
the enforcement of this Agreement and the Liabilities and (ii) the creation,
perfection, maintenance, termination and release of the Bank's security interest
in the Cash Collateral Account and the Deposit. In addition, the Applicant
agrees to pay, and to save the Bank harmless from all liability for, any stamp
or other taxes which may be payable in connection with the execution, delivery
or enforcement of this Agreement, the issuance of Credits hereunder, or the
issuance of any other instrument or document provided for herein or delivered or
to be delivered hereunder or in connection herewith.
(b) The Applicant agrees to indemnify the Bank and each of its affiliates and
each of their respective officers, directors, employees and agents (each an
"Indemnified Party") against, and to hold each Indemnified Party harmless from,
any and all actions, causes of action, suits, losses, costs, damages, expenses
(including reasonable attorneys' fees and charges, expert witness fees and other
dispute resolution expenses) and other liabilities (collectively the
"Indemnified Liabilities") incurred by any Indemnified Party as a result of, or
arising out of, or relating to, this Agreement or any Credit (and without regard
to whether the applicable Indemnified Party is a party to any proceeding out of
which such Indemnified Liabilities arise), except to the extent that a court of
competent jurisdiction determines in a final, non-appealable order that any
Indemnified Liability resulted directly from the gross negligence or willful
misconduct of such Indemnified Party. Without limiting the generality of the
foregoing sentence, the term "Indemnified Liabilities" includes any claim or
liability in which an advising, confirming or other nominated bank, or a
beneficiary requested to issue its own undertaking, seeks to be reimbursed,
indemnified or compensated. If and to the extent the foregoing undertaking may
be unenforceable for any reason, the Applicant agrees to make the maximum
contribution to the payment of each of the Indemnified Liabilities which is
permitted under applicable law.
(c) Without limiting clause (b), the Applicant agrees to indemnify the Bank, and
to hold the Bank harmless from, any loss or expense incurred by the Bank as a
result of any judgment or order being given or made for the payment of any
amount due hereunder in a particular currency (the "Currency of Account") and
such judgment or order being expressed in a currency (the "Judgment Currency")
other than the Currency of Account and as a result of any variation having
occurred in the rate of exchange between the date which such amount is converted
into the Judgment Currency and the date of actual payment pursuant thereto. The
foregoing indemnity shall constitute a separate and independent obligation of
the Applicant.
(d) All obligations provided for in this Section 13.3 shall survive any
termination of this Agreement.
13.4 Captions. Section captions used in this Agreement are for convenience only
and shall not affect the construction of this Agreement.
13.5 Governing Law. This Agreement shall be a contract made under and governed
by the laws of the State of New York applicable to contracts made and to be
performed entirely within such State, provided that Sections 5.2 through 5.6
shall be governed by and construed in accordance with English law. Except to the
extent inconsistent with such state law or otherwise expressly stated in the
Letter of Credit, the Letter of Credit and this Agreement also are subject to
the terms of the ISP. Whenever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement. All obligations of the Applicant
and rights of the Bank expressed herein shall be in addition to and not in
limitation of those provided by applicable law.
13.6 Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement.
13.7 Successors and Assigns. This Agreement shall be binding upon the Applicant
and its successors and assigns, provided that the Applicant may not assign any
of its rights or obligations hereunder without the prior written consent of the
Bank.
13.8 Right of Bank to Act through Branches and Affiliates. The Bank may cause
any Letter of Credit requested by the Applicant to be issued by a branch or
affiliate of the Bank, and all references to the "Bank" herein or in any related
document shall include each applicable branch or affiliate.
13.9 Confidentiality. Each party agrees not to disclose, not to make any public
announcements, or to issue any press release or any other form of communication
regarding this Agreement or the transactions contemplated hereby ("Disclosure")
without the prior written consent of the other party, except if Disclosure is
required by law or by governmental authority or any other regulatory body, in
which case the relevant party shall use all reasonable efforts to timely consult
the other party in advance of any Disclosure and use its best efforts to avoid
Disclosure. Notwithstanding the foregoing and any other provision herein, the
Bank and the Applicant (and each employee, representative or other agent of the
Bank and the Applicant) may disclose to any and all persons, without limitation
of any kind, the U.S. federal income tax treatment and tax structure, if any, of
the transactions contemplated by this Agreement, other than information for
which nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
13.10 Mitigation; Limitation of Liability. The Applicant agrees to take
reasonable action to avoid or reduce the amount of any damages which may be
claimed against the Bank. For example, (a) in the case of wrongful honor, the
Applicant agrees to enforce its rights arising out of the underlying transaction
(except to the extent that enforcement is impractical due to the insolvency of
the beneficiary or other Person from whom the Applicant might otherwise
recover), and (b) in the case of wrongful dishonor, the Applicant agrees to act
specifically and timely to authorize the Bank to effect a cure and give written
assurances to the beneficiary that a cure is being arranged. The Applicant's
aggregate remedies against the Bank for honoring a presentation or retaining
honored documents in breach of the Bank's obligations to the Applicant (whether
arising under this Agreement, applicable letter of credit practice or law, or
any other agreement or law) are limited to the aggregate amount paid by the
Applicant to the Bank with respect to the honored presentation.
13.11 Subrogation. The Bank shall be subrogated (for purposes of defending
against the Applicant's claims and proceeding against others to the extent of
any liability of the Bank to the Applicant) to the Applicant's rights against
any Person who may be liable to the Applicant on any underlying transaction, to
the rights of any holder in due course or Person with similar status against the
Applicant and to the rights of the beneficiary of any Letter of Credit or its
assignee or any Person with similar status against the Applicant.
13.12 Termination; Reduction. This Agreement shall terminate when all the
Credits shall have expired or been terminated and all outstanding Liabilities
shall have been paid in full. If the Bank receives evidence satisfactory to it
that the aggregate amount of all outstanding Guarantees is permanently reduced
with the consent of SVG and all affected beneficiaries of Third Party
Guarantees, the Bank shall promptly reduce the maximum amount available to be
drawn under the Letter of Credit by an amount equal to the amount of such
permanent reduction. If the Bank receives evidence satisfactory to it that all
outstanding Guarantees have been terminated with the consent of SVG and all
beneficiaries of Third Party Guarantees, the Bank shall promptly terminate the
Letter of Credit.
13.13 Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY REQUEST, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF NEW YORK COUNTY, NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE APPLICANT HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF NEW YORK COUNTY, NEW YORK AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION. THE APPLICANT FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET
FORTH BENEATH ITS SIGNATURE HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE
SPECIFIED IN WRITING TO THE BANK AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE APPLICANT AND THE
BANK EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH LITIGATION
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13.14 Waiver of Jury Trial. EACH OF THE APPLICANT AND, BY ISSUING ANY CREDIT,
THE BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY REQUEST, INSTRUMENT,
DOCUMENT, AMENDMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
WYETH ABN AMRO BANK N.V.
--------------------------------------- ---------------------------------------
[Name of Applicant] [Name of Bank]
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------- ---------------------------------------
Title: Vice President and Treasurer By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
---------------------------------
Title: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------------
Address: Wyeth By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Five Giralda Farms Title: Assistant Vice President
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President and Treasurer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇ ▇▇▇▇▇▇▇▇ (VP Healthcare)
Facsimile:▇▇▇-▇▇▇-▇▇▇▇
This Agreement has been re-executed by the Applicant and the Bank on the 16th
day of January, 2004 for the purpose of the recreation by the Applicant of the
charge under Section 5.1 hereof in consideration of the payment by the Bank to
the Applicant of the sum of one dollar (the receipt and sufficiency of which is
hereby acknowledged by the Applicant).
WYETH ABN AMRO BANK N.V.
------------------------------- ---------------------------------------
[Name of Applicant] [Name of Bank]
By: By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------- --------------------------
Title: Vice President and Treasurer Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
ANNEX 1
PERMITTED INVESTMENTS
Overall Guidelines (unless otherwise specified):
------------------------------------------------
o Ratings: Minimum ratings as shown below by any two of the NRSROs
(nationally recognized statistical rating organizations); at least one
of the two ratings must be from either Standard & Poor's or Moody's.
------------------------------------------------
Standard & ▇▇▇▇▇'▇ Fitch
Poor's
------------------------------------------------
Short-Term A-1 P-1 F-1
------------------------------------------------
Long-Term * A- A3 A-
------------------------------------------------
* Commercial Paper investments are permitted if issuer has no
long-term ratings, provided short-term ratings for S&P and/or Fitch
are A-1+/F-1+ (Moody's highest rating is already shown in chart
above)[See "Allowable Investments-Commercial Paper"].
Note regarding allowable investments within Money Market Funds
("MMFs"): MMF investments are permitted in funds which hold only First
Tier Securities, as defined under SEC Rule 2a-7 of the Investment
Company Act of 1940. First Tier Securities refer to securities that are
rated in the highest rating category for short-term debt obligations,
by any two NRSROs. There are currently three NRSROs, including Standard
& Poor's Corp., ▇▇▇▇▇'▇ Investors Service, Inc., and Fitch Investors
Services, Inc. It should also be noted that the definition also allows
securities that are rated in the highest category by one NRSRO;
securities that are unrated but are of comparable quality to a security
rated in the highest category, as determined by the fund's board of
directors, and; government securities (issued or guaranteed by the U.S.
or its instrumentalities).
o Maturity: Maximum maturity of portfolio investments - up to one year.
o Country exposure1 is limited to those countries with risk rankings of
1-20 as published on a semi-annual basis (March and September) by
Euromoney2.
o Currency - investments can be denominated in dollars or foreign
currency provided it does not create any foreign exchange exposure
with a notional value in excess of $5 million (i.e. currency is
hedged).
Allowable Investments:
----------------------
(1) U. S. Treasury Direct Obligations - no limit. U. S. Government
Agency/Government-Sponsored Enterprise (GSE) Obligations - no limit.
(2) Certificates of Deposit, Time Deposits, Bankers Acceptances, and Bank
Notes
o Domestic, Eurodollar and Yankee.
o Issued by commercial banks/bank holding companies or their
guaranteed affiliates with assets of $10 billion or more on a
consolidated basis.
(3) Commercial Paper
o Issued by financial institutions and corporations (including
their financing divisions), domestic and foreign.
o If issuer has no long-term rating, the short-term ratings must be
A-1+/P-1/F-1 by any two NRSROs (at least one of the two ratings
must be from either Standard & Poor's or ▇▇▇▇▇'▇) and the maximum
investment is $50 MM. o No asset-backed or Letter of Credit -
enhanced paper.
(4) Repurchase Agreements (including Tri-Party Repurchase Agreements)
o Restricted to dealing with the primary U. S. Government
Securities dealers or their affiliates, as accessed through
Bloomberg (sample listing is attached for reference as Attachment
2), or commercial banks/bank holding companies or their
guaranteed affiliates with assets of $10 billion or more on a
consolidated basis.
o Overnight and term Repurchase Agreements collateralized by U. S.
Treasury direct obligations, regardless of the maturity of the
underlying collateral - no limit on investment amount.
o Overnight and term Repurchase Agreements collateralized by U. S.
Government Agency/GSE obligations, regardless of the maturity of
the underlying collateral - no limit on investment amount.
o Overnight and term Repurchase Agreements collateralized by
Commercial Paper, Certificates of Deposit, Time Deposits, Bankers
Acceptances, and Bank Notes: maximum maturity of the underlying
collateral - one year; investment limit must meet the criteria
set forth in (2) and (3) above.
(5) Money Market Funds
o Funds must be regulated by Rule 2a-7 of the Investment Company
Act of 1940. In accordance with Rule 2a-7, the fund will maintain
a dollar-weighted average portfolio maturity of 90 days or less,
purchasing only securities with remaining maturities of 397 days
(13 months) or less.
o Funds must invest only in First Tier Securities as defined above
[See "Overall Guidelines"].
o As set forth in Rule 2a-7, funds may invest in asset-backed
securities.
o Funds must have at least $1 billion in assets.
(6) Tax Advantaged Products
o Tax exempt notes and commercial paper
- Rating of both A-1+ (S&P) and MIG-1 (Moody's Investment
Grade - I).
--------
1 Country exposure defined as to the national origin of the financial
institution and not the location of its branch of operations.
2 Each March and September, Euromoney magazine publishes the results of a
country risk assessment using nine categories that fall into three broad
areas: analytical indicators, credit indicators, and market indicators. The
nine categories include: economic data, political risk, debt indicators,
debt in default or rescheduled, credit ratings, access to bank finance,
access to short-term finance, access to capital markets, and discount on
forfaiting.
EXHIBIT A
[Form of Initial SVG Guarantee]
-------------------------------
ATTACHMENT GUARANTEE NO. GAR/#( excluding Third Party Guarantee(s))
-------------------------------------------------------------------
The undersigned,
ABN AMRO Bank N.V., established at Amsterdam, the Netherlands, also having an
office at ......................., hereinafter called the "Bank",
WHEREAS:
▇. ▇▇▇▇▇▇▇▇▇▇ & Van Ginneken B.V., established at Weesp (hereinafter:
"Beneficiary") alleges to have a claim against AHP Manufacturing B.V.,
trading under the name of "Wyeth Medica Ireland", established at Hoofddorp,
the Netherlands, (hereinafter: "Debtor"), as specified in the statement of
claim, dated 17 June 2003 which the Beneficiary has filed in the legal
proceedings between the Debtor and theBeneficiary before the High Court in
Dublin, Ireland with No. 12082 P, which is currently calculated at EUR
135,000,000.00 (in writing: one hundred and thirty-five million euros)
(hereinafter called "the Claim");
B. in relation to the Claim, the Beneficiary has started proceedings against
the Debtor before the High Court in Dublin, Ireland with No. 12082 P, which
proceedings together with the following proceedings in appeal are defined
as: the "Proceedings";
C. the Beneficiary has levied prejudgement attachments in the District Courts
of Haarlem and Amsterdam in the Netherlands on the Debtor in respect of the
Claim;
D. the Debtor has requested the Bank to issue a bank guarantee for the benefit
of the Beneficiary for the purpose of the lifting of such attachments and
to prevent any further conservatory attachments in respect of the Claim;
STATES THE FOLLOWING:
1. The Bank hereby confirms that it will irrevocably be a guarantor vis-a-vis
the Beneficiary for the payment of all that becomes due to the Beneficiary
by the Debtor in respect of the Claim as demonstrated in the pieces of
documentary evidence specified under 2., or in the preamble of 3. or in
paragraphs a. and b., subject to the provisions set out below, nevertheless
such payment shall not exceed the Maximum Amount as defined in article 4.
hereof.
2. At the Beneficiary's first written demand and upon the simultaneous
surrendering of copy of a decision of an Irish court rendered in the
Proceedings, accompanied by a statement of a solicitor registered to
practice in Ireland, to the effect that the decision is final and not or no
longer open to appeal, the Bank undertakes to pay to the Beneficiary the
sum which the Beneficiary declares in writing to be due and payable by the
Debtor in respect of the Claim, it being understood that the Bank shall
neither be bound to pay more than the sum which the Beneficiary can claim
from the Debtor as shown by the above-mentioned documentary evidence, nor
be bound to pay more than the Maximum Amount as defined in article 4.
3. If the Debtor is declared bankrupt the Bank, after the expiry of a period
of four (4) months after the day on which the Beneficiary has informed the
Bank by registered mail that the Debtor has been declared bankrupt
accompanied by written confirmation of the receiver that the Debtor has
been declared bankrupt, shall pay the Beneficiary the sum (not exceeding
the Maximum Amount as defined in article 4) which the Beneficiary declares
in writing to be due and payable by the Debtor in respect of the Claim
unless:
a)the Bank served a writ of summons on the Beneficiary within the
aforementioned four (4) months period with a view to causing the validity
and the amount of the claim to be determined in legal proceedings and to
cause the Beneficiary to be barred from invoking this guarantee, in which
case the Bank will effect payment (not exceeding the Maximum Amount as
defined in article 4) to the Beneficiary against surrender of a copy of a
decision of a Dutch court, which is not or no longer subject to appeal or
cassation , rendered in proceedings between the Beneficiary and the Bank;
or
b)the receiver in the bankruptcy served a writ on the Beneficiary, within
the aforementioned four (4) months period, to appear in court with a view
to causing the validity and amount of the Claim to be determined in legal
proceedings in the Dutch court and to bar the Beneficiary from invoking
this guarantee, and the receiver notified the Bank of this by registered
mail within the aforementioned period, in which case the Bank will effect
payment to the Beneficiary against surrender of a copy of a decision of a
Dutch court rendered in proceedings between the Beneficiary and the
receiver, accompanied by a statement of a solicitor registered to
practise in the Netherlands to the effect that no notice of appeal,
cassation or opposition was received within the legal term laid down for
this, and that to his knowledge no notice of appeal or cassation was
given against the aforementioned decision within this term, or that no
objection to a default judgement was made within 6 (six) weeks after
service of the judgement to the Bank,
it being understood that the Bank (in the cases described under a and b) shall
not be bound to pay more than the sum which the Beneficiary can claim from the
Debtor as shown by any of the aforementioned pieces of documentary evidence, nor
be bound to pay more than the Maximum Amount as defined in article 4.
The provisions laid down in this article 3 shall not prejudice the Beneficiary's
rights to demand payment pursuant to article 2, however: if the Beneficiary
demands payment according to the terms and provisions laid down in article 2,
the Beneficiary, in doing so, waives the right to demand payment according to
the terms and provisions as laid down in article 3, and vice versa.
4. This guarantee covers a maximum amount of EUR 135,000,000,= (in words: one
hundred and thirty-five million euros), defined as the "Maximum Amount".
If, in the event of a written demand for payment in respect of this guarantee,
the Beneficiary explicitly states that such demand concerns a partial payment,
the guarantee will continue to remain in force for the balance.
5. This guarantee shall expire
a)upon payment by the Bank of the Maximum Amount or the amount awarded to
the Beneficiary as specified in the pieces of documentary evidence
specified under 2., or in the preamble of 3., or in paragraphs a. and
b. of 3.; or
b)upon the receipt by the Bank of a legal opinion of a solicitor registered
to practise in Ireland stating that either one of the following events
occurred: 1)The Proceedings have been finally withdrawn by the
Beneficiary, or 2)The Proceedings have lead to a final and irrevocable
judgement that
i) the High or Supreme court does not have jurisdiction to hear this
action, or
ii)the Beneficiary has no claim on the Debtor, or
iii)the claim of the Beneficiary against the Debtor has been dismissed,
or
iv)The Proceedings have been cancelled for want of prosecution; or
c)on December 10, 2013, unless one month before that date, the Bank has
received a written statement from a solicitor, registered to practice in
Ireland and acting on behalf of the Beneficiary, to the effect that the
Proceedings are still pending, or that, pursuant to article 3,
proceedings between the Beneficiary and the Bank or the receiver are
pending, in which case this guarantee will expire on December 10, 2018.
Upon expiry of this guarantee, the Beneficiary will no longer be entitled to
lodge any claim in respect of this guarantee.
7. Any claim under this guarantee has to be served exclusively to notaris ▇▇.
▇. ▇▇▇▇▇ or his successor................(address) quoting................
as a reference..............
8. This guarantee shall be governed exclusively by Dutch law. Any disputes
between the Bank and the Beneficiary concerning this guarantee, as well as
the proceedings as meant in article 3., paragraph a., shall in the first
instance be submitted exclusively to the competent Court at Amsterdam.
Thus made and signed in ...........................on #
ABN AMRO Bank N.V.
EXHIBIT B
[Form of Subsequent SVG Guarantee]
----------------------------------
ATTACHMENT GUARANTEE NO. GAR/#( including Third Party Guarantee(s))
-------------------------------------------------------------------
The undersigned,
ABN AMRO Bank N.V., established at Amsterdam, the Netherlands, also having an
office at ......................., hereinafter called the "Bank",
WHEREAS:
▇. ▇▇▇▇▇▇▇▇▇▇ & Van Ginneken B.V., established at Weesp (hereinafter:
"Beneficiary"), alleges to have a claim against AHP Manufacturing B.V.,
trading under the name of "Wyeth Medica Ireland", established at Hoofddorp,
the Netherlands, (hereinafter: "Debtor"), as specified in the statement of
claim, dated 17 June 2003 which the Beneficiary has filed in the legal
proceedings between the Debtor and the Beneficiary before the High Court in
Dublin, Ireland with No. 12082 P, which is currently calculated at EUR
135,000,000.00 (in writing: one hundred and thirty-five million euros)
(hereinafter called "the Claim");
B. in relation to the Claim, the Beneficiary has started proceedings against
the Debtor before the High Court in Dublin, Ireland with No. 12082 P, which
proceedings together with the following proceedings in appeal are defined
as: the "Proceedings";
C. the Beneficiary has levied prejudgement attachments in the District Courts
of Haarlem and Amsterdam in the Netherlands on the Debtor in respect of the
Claim;
D. the Debtor has requested the Bank to issue a bank guarantee for the benefit
of the Beneficiary for the purpose of the lifting of such attachments and
to prevent any further conservatory attachments in respect of the Claim;
E. the Claim also includes damages of third parties for which the Beneficiary
is held liable by these third parties and for which the Beneficiary seeks
recourse against the Debtor;
F. besides, (some of these) third parties (jointly or separately) seek
recourse against the Debtor directly and will start or have started legal
proceedings against the Debtor in order to seek to recover their alleged
losses directly from the Debtor;
G. at the joint request of the Debtor and the Beneficiary, the Bank has issued
in relation thereto the following separate bank guarantee(s):
no. GAR/........in favour of........to the maximum amount of EUR .........
no. GAR/........in favour of........to the maximum amount of EUR .........
no. GAR/........in favour of........to the maximum amount of EUR .........
etc...
which beneficiaries (both jointly and separately) are defined as "Third Parties"
and which guarantees (both jointly and separately) are defined as "Third Party
Guarantees";
H. each time the Bank issues a Third Party Guarantee, this guarantee shall be
replaced by a guarantee which is identical to this guarantee apart from the
fact that it will specify i)the name of each of the Third Parties to whom a
Third Party Guarantee is issued and ii) the maximum amount of the Third
Party Guarantees.
I. the Debtor wishes the Beneficiary to refrain from claiming under this
guarantee in respect of the alleged claims of the Third Parties as long as
and to the extent that the Maximum Amount of this guarantee has been
decreased in accordance with article 4 below.
STATES THE FOLLOWING:
1. The Bank hereby confirms that it will irrevocably be a guarantor vis-a-vis
the Beneficiary for the payment of all that becomes due to the Beneficiary
by the Debtor in respect of the Claim as demonstrated in the pieces of
documentary evidence specified under 2., or in the preamble of 3. or in
paragraphs a. and b., subject to the provisions set out below, nevertheless
such payment shall not exceed the Maximum Amount as defined in article 4.
hereof
2. At the Beneficiary's first written demand and upon the simultaneous
surrendering of a copy of a decision of an Irish court rendered in the
Proceedings , accompanied by a statement of a solicitor registered to
practice in Ireland, to the effect that the decision is final and not or no
longer open to appeal, the Bank undertakes to pay to the Beneficiary the
sum which the Beneficiary declares in writing to be due and payable by the
Debtor in respect of the Claim, it being understood that the Bank shall
neither be bound to pay more than the sum which the Beneficiary can claim
from the Debtor as shown by the above-mentioned documentary evidence, nor
be bound to pay more than the Maximum Amount as defined in article 4.
3. If the Debtor is declared bankrupt the Bank, after the expiry of a period
of four (4) months after the day on which the Beneficiary has informed the
Bank by registered mail that the Debtor has been declared bankrupt
accompanied by written confirmation of the receiver that the Debtor has
been declared bankrupt, shall pay the Beneficiary the sum (not exceeding
the Maximum Amount as defined in article 4) which the Beneficiary declares
in writing to be due and payable by the Debtor in respect of the Claim
unless:
a)the Bank served a writ of summons on the Beneficiary within the
aforementioned four (4) months period with a view to causing the validity
and the amount of the claim to be determined in legal proceedings and to
cause the Beneficiary to be barred from invoking this guarantee, in which
case the Bank will effect payment (not exceeding the Maximum Amount as
defined in article 4) to the Beneficiary against surrender of a copy of a
decision of a Dutch court, which is not or no longer subject to appeal or
cassation , rendered in proceedings between the Beneficiary and the Bank;
or
b)the receiver in the bankruptcy served a writ on the Beneficiary, within
the aforementioned four (4) months period, to appear in court with a view
to causing the validity and amount of the Claim to be determined in legal
proceedings in the Dutch court and to bar the Beneficiary from invoking
this guarantee, and the receiver notified the Bank of this by registered
mail within the aforementioned period, in which case the Bank will effect
payment to the Beneficiary against surrender of a copy of a decision of a
Dutch court rendered in proceedings between the Beneficiary and the
receiver, accompanied by a statement of a solicitor registered to
practise in the Netherlands to the effect that no notice of appeal,
cassation or opposition was received within the legal term laid down for
this, and that to his knowledge no notice of appeal or cassation was
given against the aforementioned decision within this term, or that no
objection to a default judgement was made within 6 (six) weeks after
service of the judgement to the Bank,
it being understood that the Bank (in the cases described under a and b)
shall not be bound to pay more than the sum which the Beneficiary can claim
from the Debtor as shown by any of the aforementioned pieces of documentary
evidence, nor be bound to pay more than the Maximum Amount as defined in
article 4.
The provisions laid down in this article 3 shall not prejudice the
Beneficiary's rights to demand payment pursuant to article 2, however: if
the Beneficiary demands payment according to the terms and provisions laid
down in article 2, the Beneficiary, in doing so, waives the right to demand
payment according to the terms and provisions as laid down in article 3,
and vice versa.
4. The amount covered by this guarantee, pursuant to this provision defined as
the "Maximum Amount", will be decreased by the total sum of the maximum
amounts of the Third Party Guarantees as long as the Third Parties have, in
the reasonable opinion of the Bank, which shall be binding, the right to
claim under the Third Party Guarantees and will in no circumstances exceed
the amount of EUR 135,000,000 (in words: one hundred and thirty five
million Euros).
In the event and as far as (one or more of) the Third Parties explicitly,
irrevocably and unconditionally waive their rights in writing under (one or
more of) the Third Party Guarantees by issuing a written statement to that
effect to the Bank, the Maximum Amount will be raised accordingly, however,
in no circumstances will the Maximum Amount exceed the amount of EUR
135,000,000 (in words: one hundred and thirty five million euros).
Notwithstanding the aforesaid, the total amount of EUR 135,000,000.= will
be decreased definitely by (all) the sum(s) that will be paid by the Bank
under this guarantee and under (one or more of ) the Third Party Guarantees
If, in the event of a written demand for payment in respect of this guarantee,
the Beneficiary explicitly states that such demand concerns a partial payment,
the guarantee will continue to remain in force for the balance.
5. This guarantee shall expire
a)upon payment by the Bank of the amount awarded to the Beneficiary as
specified in the pieces of documentary evidence specified under 2., or
in the preamble of 3., or in paragraphs a. and b. of 3.;or
b)upon the receipt by the Bank of a legal opinion of a solicitor registered
to practise in Ireland stating that either one of the following events
occurred: 1)the Proceedings have been finally withdrawn by the
Beneficiary, or 2)the Proceedings have lead to a final and irrevocable
judgement that
i) the High or Supreme Court does not have jurisdiction to hear this
action,
ii) the Beneficiary has no claim on the Debtor,
iii)the claim of the Beneficiary against the Debtor has been dismissed,
or
iv) the Proceedings have been cancelled for want of prosecution; or
c)on December 10, 2013, unless one month before that date, the Bank has
received a written statement from a solicitor, registered to practice in
Ireland and acting on behalf of the Beneficiary, to the effect that the
Proceedings are still pending, or that, pursuant to article 3,
proceedings between the Beneficiary and the Bank or the receiver are
pending, in which case this guarantee will expire on December 10, 2018.
Upon expiry of this guarantee, the Beneficiary will no longer be entitled
to lodge any claim in respect of this guarantee.
7. Any claim under this guarantee has to be served exclusively to notaris ▇▇.
▇. ▇▇▇▇▇ or his successor................(address) quoting................
as a reference..............
8. This guarantee shall be governed exclusively by Dutch law. Any disputes
between the Bank and the Beneficiary concerning this guarantee, as well as
the proceedings as meant in article 3., paragraph a., shall in the first
instance be submitted exclusively to the competent Court at Amsterdam.
Thus made and signed in ...........................on #
ABN AMRO Bank N.V.
EXHIBIT C
[Form of Third Party Guarantee]
-------------------------------
THIRD PARTY GUARANTEE NO. GAR/#
-------------------------------
The undersigned,
ABN AMRO Bank N.V., established at Amsterdam, the Netherlands, also having an
office at Rotterdam, Coolsingel 119, hereinafter called the "Bank",
WHEREAS:
A. #, established at #, hereinafter called the "Beneficiary", alleges to have
a claim against #, hereinafter called the "Debtor", on account of #,
currently calculated at #, hereinafter called: the "Claim";
B. The Beneficiary has caused or intends to cause (a) conservatory
attachment(s) to be made against the Debtor in respect of the Claim;
C. The Debtor has requested the Bank to issue a bank guarantee for the benefit
of the Beneficiary for the purpose of the withdrawal or prevention of such
attachment(s) and to prevent any further conservatory attachment in respect
of the Claim;
STATES THE FOLLOWING:
1. The Bank hereby confirms that it will irrevocably be a guarantor vis-a-vis
the Beneficiary for the payment of all that will be due to the Beneficiary
by the Debtor in respect of the Claim as shown by the pieces of documentary
evidence specified in 2., paragraphs a. to c. inclusive, or in the preamble
of 3. or in paragraphs a. and b., subject to the provisions set out below.
2. At the Beneficiary's first written demand and on the simultaneous
production of:
a.a copy of a decision of a Dutch court rendered in proceedings between the
Beneficiary and the Debtor, accompanied by a statement of a solicitor,
registered to practice in the Netherlands, to the effect that no notice
of appeal, cassation or opposition was received within the legal term
laid down for this and that, to his knowledge, no notice of appeal or
cassation was given against the decision within this term, or that
objection to a default judgment was made within six weeks after service
of the judgment to the Bank; or
b.an original copy of an arbitration award rendered in proceedings between
the Beneficiary and the Debtor in connection with the Claim; or
c.a copy, certified by the parties, of a deed containing an amicable
settlement between the Beneficiary and the Debtor in respect of the
Claim,
the Bank undertakes to pay to the Beneficiary the sum which the Beneficiary
declares in writing to be due and payable by the Debtor in respect of the
Claim, it being understood that the Bank shall not be bound to pay more
than the sum which the Beneficiary can claim from the Debtor, as shown by
one or more of the above-mentioned pieces of documentary evidence.
PAGE 2 ATTACHMENT GUARANTEE NO. GAR/#
3. If the Debtor is declared bankrupt or if the Debtor falls under the scope
of a statutory debt rescheduling regulation, the Bank, after the expiry of
a period of four (4) months after the day on which the Beneficiary informed
the Bank by registered mail that the Debtor has been declared bankrupt or
falls under the scope of a statutory debt rescheduling regulation,
accompanied by written confirmation of the receiver or the administrator
that the Debtor has been declared bankrupt or that he falls under the scope
of a statutory debt rescheduling regulation, shall pay the Beneficiary the
sum which the Beneficiary declares in writing to be due and payable by the
Debtor in respect of the Claim unless:
a.the Bank served a writ of summons on the Beneficiary within the
aforementioned four (4) months period with a view to causing the validity
and the amount of the claim to be determined in legal proceedings and to
cause the Beneficiary to be barred from invoking this guarantee, in which
case the Bank will effect payment to the Beneficiary against surrender of
a copy of a decision of a Dutch court, which is not or no longer subject
to appeal, rendered in proceedings between the Beneficiary and the Bank;
or
b.the receiver in the bankruptcy or the administrator served a writ on the
Beneficiary within the aforementioned four (4) months period to appear in
court with a view to causing the validity and amount of the Claim to be
determined or to bar the Beneficiary from invoking this guarantee and the
receiver or the administrator notified the Bank of this by registered
mail within the aforementioned period, in which case the Bank will effect
payment to the Beneficiary against surrender of a copy of a decision of a
Dutch court, which is not or no longer subject to appeal, rendered in
proceedings between the Beneficiary and the receiver or the
administrator, and furthermore against surrender of a statement in
accordance with article 2., paragraph a., or a deed as referred to in
article 2., paragraph c., it being understood that the Bank shall not be
bound to pay more than the sum which the Beneficiary can claim from the
Debtor as shown by any of the aforementioned pieces of documentary
evidence.
The provisions laid down in this article do not prejudice the Beneficiary's
rights to demand payment pursuant to article 2.
4. This guarantee covers a maximum sum of # (in words: #).
If the Beneficiary, in the event of a written demand for payment in respect
of this guarantee, states that such demand concerns a partial payment, the
guarantee will continue to remain in force for the balance.
PAGE 3 ATTACHMENT GUARANTEE NO. GAR/#
5. This guarantee expires on December 10, 2013, unless one month before that
date, the Bank has received a written statement from a solicitor,
registered to practice in the Netherlands and acting on behalf of the
Beneficiary, to the effect that proceedings between the Beneficiary and the
Debtor concerning the Claim are still pending or that, pursuant to article
3., proceedings between the Beneficiary and the receiver or the Bank are
still pending, in which case the guarantee will expire on December 10,
2018.
6. After expiry of this guarantee the Beneficiary will no longer be entitled
to lodge any claim in respect of this guarantee and the Beneficiary will be
obliged to return this guarantee to the Bank / release the Bank from its
obligations.
7. Any claim under this guarantee has to be served exclusively to notaris ▇▇.
▇. ▇▇▇▇▇ or his successor (address) quoting as a reference ....
8. This guarantee shall be governed exclusively by Dutch law. Any disputes
between the Bank and the Beneficiary concerning this guarantee, as well as
the proceedings as meant in article 3., paragraph a., shall in first
instance be submitted exclusively to the competent Court in Amsterdam.
Thus made and signed in Rotterdam, on #
ABN AMRO Bank N.V.
EXHIBIT D
[Form of Letter of Credit]
--------------------------
STANDBY LETTER OF CREDIT NUMBER:...........
..
AMOUNT:...............................
..
WE, ABN AMRO BANK N.V. CHICAGO BRANCH,
..
TAKING INTO CONSIDERATION,
..
A) THAT, AT OUR REQUEST, UNDER OUR FULL RESPONSIBILITY AND FOR OUR ACCOUNT AND
RISK, YOU WILL ESTABLISH ONE GUARANTEE IN THE FORM OF EXHIBIT A ATTACHED HERETO
UNDER YOUR REFERENCE NUMBER GAR/............, FOR A TOTAL AMOUNT OF EUR
135,000,000.00 (IN WORDS: ONE HUNDRED AND THIRTY-FIVE MILLION EURO), IN FAVOUR
OF SCHUURMANS EN VAN GINNEKEN B.V. (`SVG' OR `THE BENEFICIARY'), THE WORDING OF
WHICH HAS ALREADY BEEN AGREED UPON BETWEEN THE BENEFICIARY, YOURSELVES, AND OUR
CLIENT, WYETH (A DELAWARE CORPORATION, AND REFERRED TO HEREIN AS `WYETH') AND
HAS BEEN RECEIVED AND AGREED UPON BY US,
B) THAT UPON RECEIPT OF INSTRUCTIONS FROM WYETH BY MEANS SPECIFIED IN ANNEX I
ATTACHED HERETO-, YOU WILL ISSUE, UNDER OUR FULL RESPONSIBILITY AND FOR OUR
ACCOUNT AND RISK, AND IN ACCORDANCE WITH THE PROCEDURES SPECIFIED IN ANNEX I
ATTACHED HERETO, ONE OR MORE SEPARATE BANK GUARANTEES AS `THIRD PARTY
GUARANTEE(S)', SUBSTANTIALLY IN THE FORM OF THE TEMPLATE REFERRED TO AS EXHIBIT
C ATTACHED HERETO (WITH SUCH CHANGES FROM THAT FORM, OR IN SUCH DIFFERENT FORM
AS YOU, WYETH, SVG, AND WE SHALL AGREE), PROVIDED, HOWEVER, THAT AT THE SAME
TIME YOU RECEIVE FROM THE BENEFICIARY THE GUARANTEE IN THE FORM OF EXHIBIT A
ATTACHED HERETO TO BE REPLACED BY A GUARANTEE IN THE FORM OF EXHIBIT B ATTACHED
HERETO AS STIPULATED UNDER C HEREINAFTER. . C) THAT UPON RECEIPT OF INSTRUCTIONS
FROM WYETH TO ISSUE SUCH A THIRD PARTY GUARANTEE, UNDER OUR FULL RESPONSIBILITY
AND FOR OUR ACCOUNT AND RISK, AND CONCURRENTLY WITH YOUR ISSUANCE OF SUCH THIRD
PARTY GUARANTEE IN ACCORDANCE WITH THE PROCEDURES SPECIFIED IN ANNEX I ATTACHED
HERETO, YOU WILL REPLACE THE GUARANTEE IN THE FORM OF EXHIBIT A ATTACHED HERETO
BY A GUARANTEE IN THE FORM OF EXHIBIT B ATTACHED HERETO. A GUARANTEE THAT IS IN
THE FORM OF EITHER EXHIBIT A ATTACHED HERETO OR EXHIBIT B ATTACHED HERETO IS
REFERRED TO HEREIN AS A `SVG GUARANTEE.' EACH TIME WYETH SUBSEQUENTLY INSTRUCTS
YOU TO ISSUE A THIRD PARTY GUARANTEE, THE REPLACEMENT SVG GUARANTEE WILL BE
IDENTICAL TO THE REPLACED SVG GUARANTEE APART FROM THE FACT THAT IT WILL
SPECIFY:
..
I)THE NAME OF EACH OF THE THIRD PARTIES IN WHOSE FAVOUR A THIRD PARTY
GUARANTEE IS ISSUED
AND
II) THE MAXIMUM AMOUNT OF THE THIRD PARTY GUARANTEES,
D) THAT THE MAXIMUM AMOUNT OF THE SVG GUARANTEE IN THE FORM OF EXHIBIT A
ATTACHED HERETO AND ALL SUBSEQUENT SVG GUARANTEES IN THE FORM OF EXHIBIT B
ATTACHED HERETO WILL BE DECREASED BY THE TOTAL MAXIMUM AMOUNT(S) OF THE THIRD
PARTY GUARANTEE(S), AND WILL BE INCREASED UNDER THE CIRCUMSTANCES AS MENTIONED
IN ARTICLE 4 OF THE SVG GUARANTEE, IT BEING UNDERSTOOD, HOWEVER, THAT THE
MAXIMUM AMOUNT OF THIS STANDBY LETTER OF CREDIT WILL REMAIN UNALTERED,
..
E) THAT YOU ARE ONLY PREPARED TO ISSUE THE SVG GUARANTEES AND ANY SUBSEQUENT
THIRD PARTY GUARANTEE(S), IF YOU ARE COVERED FOR ALL YOUR LIABILITIES ON THE
STRENGTH OF THESE GUARANTEES,
..
DECLARE AS FOLLOWS:
..
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT
NO. ........................
IN YOUR FAVOUR FOR ACCOUNT OF: ..................................
..
IN THE AMOUNT OF EUR 135,000,000.00, (IN WORDS: ONE HUNDRED AND THIRTY-FIVE
MILLION EURO), EXPIRING ON DECEMBER 31, 2018, AVAILABLE AT OUR COUNTERS WITH
............. AGAINST YOUR AUTHENTICATED SWIFT STATING THE AMOUNT CLAIMED AND
CERTIFYING EITHER:
..
QUOTE
WE HAVE BEEN DRAWN UPON FOR SAME AMOUNT UNDER AND IN COMPLIANCE WITH THE (THIRD
PARTY) GUARANTEE ISSUED BY US WITH THE SUPPORT OF AND IN ACCORDANCE WITH YOUR
STANDBY LC NO. ..........
UNQUOTE
OR
QUOTE
WE HAVE BEEN DRAWN UPON FOR SAME AMOUNT UNDER AND IN COMPLIANCE WITH THE SVG
GUARANTEE ISSUED BY US WITH THE SUPPORT OF AND IN ACCORDANCE WITH YOUR STANDBY
LC NO. ........
UNQUOTE
..
WE UNDERTAKE THAT CLAIMS RECEIVED UNDER AND IN COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THIS STANDBY LETTER OF CREDIT WILL BE DULY HONORED IF RECEIVED BY
US ON OR BEFORE THE EXPIRATION DATE.
..
WE FURTHER UNDERTAKE TO HOLD YOU HARMLESS AND INDEMNIFIED FROM ANY ADVERSE
CONSEQUENCES WHATSOEVER, RESULTING FROM YOUR ACCEPTANCE OF THE INSTRUCTIONS FROM
WYETH IN ACCORDANCE WITH ANNEX I ATTACHED HERETO, IN WHATEVER WAY THEY MAY HAVE
BEEN ISSUED, SPECIFICALLY, BUT NOT LIMITED TO CONSEQUENCES RELATING TO CREDIT
DOCUMENTATION AND THE VALIDITY OF THE SIGNATURES ON THE INSTRUCTIONS.
..
THE MAXIMUM AMOUNT OF THIS STANDBY LETTER OF CREDIT WILL BE DECREASED BY ANY
PAYMENTS MADE UNDER IT, AND WILL REMAIN IN FORCE FOR THE BALANCE.
..
THIS STANDBY LETTER OF CREDIT IS SUBJECT TO ICC UCP FOR DOCUMENTARY CREDITS, ICC
PUBLICATION NO. 500.
..
THIS IS THE OPERATIVE CREDIT INSTRUMENT.
NO CONFIRMATION WILL FOLLOW.
ANNEX I TO LETTER OF CREDIT
PROCEDURE OF ISSUANCE OF THIRD PARTY GUARANTEES
-----------------------------------------------
SUBJECT TO RECEIPT BY THE BANK AT ITS OFFICE IN ROTTERDAM, THE NETHERLANDS, NOT
LATER THAN THREE BUSINESS DAYS PRIOR TO THE DATE OF A PROPOSED ISSUANCE OF ANY
THIRD PARTY GUARANTEE (OR SUCH LATER DATE AS THE BANK SHALL AGREE), OF A REQUEST
FOR THE ISSUANCE OF SUCH THIRD PARTY GUARANTEE AND SUBJECT TO RECEIPT (AT THE
TIME SUCH THIRD PARTY GUARANTEE IS TO BE ISSUED) BY THE BANK AT ITS OFFICE IN
ROTTERDAM, THE NETHERLANDS, OF THE ORIGINAL OF THE THEN OUTSTANDING SVG
GUARANTEE FOR REPLACEMENT, THE BANK SHALL (I) DELIVER TO THE PERSON INDICATED IN
THE REQUEST THE NEW THIRD PARTY GUARANTEE AND (II) REPLACE THE THEN OUTSTANDING
SVG GUARANTEE WITH A NEW SVG GUARANTEE IN THE FORM OF EXHIBIT B HERETO, WHICH
SHALL SPECIFY THE NAME OF EACH THIRD PARTY TO WHOM THIRD PARTY GUARANTEES HAVE
THERETOFORE BEEN ISSUED AND THE MAXIMUM AMOUNT COVERED BY EACH SUCH THIRD PARTY
GUARANTEE. A REQUEST MAY BE SENT BY FACSIMILE, BY UNITED STATES MAIL, BY
OVERNIGHT COURIER, BY PERSONAL DELIVERY OR BY ANY OTHER MEANS ACCEPTABLE TO THE
BANK. IF A THIRD PARTY GUARANTEE IS TO HAVE CHANGES FROM, OR IS TO BE IN A
DIFFERENT FORM FROM, EXHIBIT C ATTACHED HERETO, SUCH CHANGES OR OTHER FORM SHALL
BE AGREED UPON BETWEEN WYETH, THE THIRD PARTY, SVG, AND BOTH BRANCHES OF THE
BANK BEFORE THE REQUEST IS FURNISHED.
FOR PURPOSES OF THIS ANNEX, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
AUTHORIZED REPRESENTATIVE MEANS EACH REPRESENTATIVE OF WYETH WHO IS AUTHORIZED
TO EXECUTE A REQUEST ON BEHALF OF WYETH, AS EVIDENCED IN AN INCUMBENCY
CERTIFICATE DELIVERED TO YOU BY US (AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED
FROM TIME TO TIME BY NOTICE TO YOU BY US).
BANK MEANS ABN AMRO BANK N.V.
REQUEST MEANS, AT ANY TIME, A REQUEST (WHICH SHALL BE IN WRITING, INCLUDING BY
FACSIMILE) FOR A THIRD PARTY GUARANTEE TO BE ISSUED BY THE BANK, WHICH REQUEST
SHALL CONSIST OF (I) A LETTER FROM WYETH (SIGNED BY AN AUTHORIZED REPRESENTATIVE
OF WYETH), SPECIFYING (A) THE REQUESTED ISSUANCE DATE, (B) THE NAME AND CONTACT
INFORMATION OF THE PERSON TO WHOM SUCH THIRD PARTY GUARANTEE IS TO BE DELIVERED
AND (C) THE MANNER OF SUCH DELIVERY, AND (II) A JOINT LETTER FROM WYETH (SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF WYETH) AND SVG AUTHORIZING OR CONSENTING TO
SUCH ISSUANCE AND SPECIFYING (A) THE NAME OF EACH THIRD PARTY IN FAVOR OF WHICH
THE RESPECTIVE THIRD PARTY GUARANTEE IS REQUESTED TO BE ISSUED AND (B) THE
MAXIMUM AMOUNT COVERED BY SUCH THIRD PARTY GUARANTEE.