Exhibit 4.3




 





 


U.S.
$1,000,000,000


 


364-DAY
CREDIT AGREEMENT


 


Dated as of December 22, 2003


 


among


 


TYCO
INTERNATIONAL GROUP S.A.,


Borrower,


 


TYCO INTERNATIONAL LTD.,
Parent Guarantor


 


BANK
OF AMERICA, N.A.,

as Paying Agent


 


and


 


The Other Lenders Party Hereto


 


BANK OF AMERICA, N.A.,


CITICORP NORTH AMERICA, INC.,


as


Co-Administrative Agents


 


ABN AMRO BANK N.V.,


DEUTSCHE BANK SECURITIES INC.,


JPMORGAN CHASE BANK,


as


Co-Syndication Agents


 


GOLDMAN SACHS CREDIT PARTNERS L.P.,


MORGAN STANLEY BANK,


UBS LOAN FINANCE LLC,


as


Co-Documentation Agents


 


BANC
OF AMERICA SECURITIES LLC,


CITIGROUP
GLOBAL MARKETS INC.,


as


Joint Lead Arrangers and Joint Bookrunners




 





 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  
	
  ARTICLE I. DEFINITIONS AND ACCOUNTING
  TERMS

  	
   

  
	
  1.01

  	
  Defined
  Terms.

  	
   

  
	
  1.02

  	
  Other Interpretive Provisions.

  	
   

  
	
  1.03

  	
  Accounting Terms.

  	
   

  
	
  1.04

  	
  References to Agreements and Laws.

  	
   

  
	
  1.05

  	
  Times
  of Day.

  	
   

  
	
   

  	
   

  
	
  ARTICLE II. THE COMMITMENTS AND
  BORROWINGS

  	
   

  
	
  2.01

  	
  Loans.

  	
   

  
	
  2.02

  	
  Borrowings, Conversions and Continuations
  of Loans.

  	
   

  
	
  2.03

  	
  Prepayments.

  	
   

  
	
  2.04

  	
  Termination or Reduction of Commitments.

  	
   

  
	
  2.05

  	
  Repayment of Loans; Term–Out Option.

  	
   

  
	
  2.06

  	
  Interest.

  	
   

  
	
  2.07

  	
  Fees.

  	
   

  
	
  2.08

  	
  Computation of Interest and Fees.

  	
   

  
	
  2.09

  	
  Evidence of Debt.

  	
   

  
	
  2.10

  	
  Payments Generally.

  	
   

  
	
  2.11

  	
  Sharing of Payments.

  	
   

  
	
   

  	
   

  
	
  ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
  3.01

  	
  Taxes.

  	
   

  
	
  3.02

  	
  Illegality.

  	
   

  
	
  3.03

  	
  Inability to Determine Rates.

  	
   

  
	
  3.04

  	
  Increased Cost and Reduced Return; Capital
  Adequacy; Reserves on Eurodollar Rate Loans.

  	
   

  
	
  3.05

  	
  Funding Losses.

  	
   

  
	
  3.06

  	
  Matters Applicable to all Requests for
  Compensation.

  	
   

  
	
  3.07

  	
  Survival.

  	
   

  
	
  3.08

  	
  Substitution of Lender.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS PRECEDENT TO EFFECTIVENESS
  AND BORROWINGS

  	
   

  
	
  4.01

  	
  Conditions to Effectiveness.

  	
   

  
	
  4.02

  	
  Conditions to all Borrowings.

  	
   

  
	
   

  	
   

  
	
  ARTICLE V. REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
  5.01

  	
  Corporate Existence and Power.

  	
   

  
	
  5.02

  	
  Corporate and Governmental Authorization;
  No Contravention.

  	
   

  
	
  5.03

  	
  Binding Effect.

  	
   

  
	
  5.04

  	
  Financial Information.

  	
   

  
	
  5.05

  	
  Litigation.

  	
   

  
	
  5.06

  	
  Compliance with ERISA.

  	
   

  
	
  5.07

  	
  Environmental Matters.

  	
   

  
	
  5.08

  	
  Insurance.

  	
   

  
	
  5.09

  	
  Taxes.

  	
   

  
	
  5.10

  	
  Subsidiaries.

  	
   

  
	
  5.11

  	
  Not an Investment Company or Public Utility
  Holding Company.

  	
   

  



 


i

















 


	
  5.12

  	
  Margin Regulations.

  	
   

  
	
  5.13

  	
  Full Disclosure.

  	
   

  
	
  5.14

  	
  Ownership of Property; Liens.

  	
   

  
	
  5.15

  	
  Obligations to Be Pari Passu.

  	
   

  
	
  5.16

  	
  Tax Shelter Regulations.

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI. COVENANTS

  	
   

  
	
  6.01

  	
  Information.

  	
   

  
	
  6.02

  	
  Payment of Obligations.

  	
   

  
	
  6.03

  	
  Maintenance of Property; Insurance.

  	
   

  
	
  6.04

  	
  Conduct of Business and Maintenance of
  Existence.

  	
   

  
	
  6.05

  	
  Compliance with Laws.

  	
   

  
	
  6.06

  	
  Inspection of Property, Books and Records.

  	
   

  
	
  6.07

  	
  Limitation on Restrictions on Subsidiary
  Dividends and Other Distributions.

  	
   

  
	
  6.08

  	
  Total
  Debt.

  	
   

  
	
  6.09

  	
  Restrictions on Liens.

  	
   

  
	
  6.10

  	
  Consolidations, Mergers and Sales of Assets.

  	
   

  
	
  6.11

  	
  Transactions with Affiliates.

  	
   

  
	
  6.12

  	
  Restricted Payments.

  	
   

  
	
  6.13

  	
  Financial Covenants.

  	
   

  
	
  6.14

  	
  Subsidiary Guarantors.

  	
   

  
	
  6.15

  	
  Use of Proceeds.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. EVENTS OF DEFAULT AND
  REMEDIES

  	
   

  
	
  7.01

  	
  Events of Default.

  	
   

  
	
  7.02

  	
  Remedies Upon Event of Default.

  	
   

  
	
  7.03

  	
  Application of Funds.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. PAYING AGENT

  	
   

  
	
  8.01

  	
  Appointment and Authorization of Paying
  Agent.

  	
   

  
	
  8.02

  	
  Delegation of Duties.

  	
   

  
	
  8.03

  	
  Liability of Paying Agent.

  	
   

  
	
  8.04

  	
  Reliance by Paying Agent.

  	
   

  
	
  8.05

  	
  Notice of Default.

  	
   

  
	
  8.06

  	
  Credit Decision; Disclosure of Information
  by Paying Agent.

  	
   

  
	
  8.07

  	
  Indemnification of Paying Agent.

  	
   

  
	
  8.08

  	
  Paying Agent in its Individual Capacity.

  	
   

  
	
  8.09

  	
  Successor Paying Agent.

  	
   

  
	
  8.10

  	
  Paying Agent May File Proofs of Claim.

  	
   

  
	
  8.11

  	
  Guaranty Matters.

  	
   

  
	
  8.12

  	
  Other Agents; Arrangers and Managers.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. GUARANTEE

  	
   

  
	
  9.01

  	
  The
  Guarantee.

  	
   

  
	
  9.02

  	
  Guarantee Unconditional.

  	
   

  
	
  9.03

  	
  Discharge Only upon Payment in Full;
  Reinstatement in Certain Circumstances.

  	
   

  
	
  9.04

  	
  Waiver by the Parent.

  	
   

  
	
  9.05

  	
  Subrogation.

  	
   

  
	
  9.06

  	
  Stay of Acceleration.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. MISCELLANEOUS

  	
   

  
	
  10.01

  	
  Amendments,
  Etc.

  	
   

  



 


ii

















 


	
  10.02

  	
  Notices and Other Communications; Facsimile
  Copies.

  	
   

  
	
  10.03

  	
  No Waiver; Cumulative Remedies.

  	
   

  
	
  10.04

  	
  Attorney
  Costs, Expenses and Taxes.

  	
   

  
	
  10.05

  	
  Indemnification by the Borrower.

  	
   

  
	
  10.06

  	
  Payments Set Aside.

  	
   

  
	
  10.07

  	
  Successors and Assigns.

  	
   

  
	
  10.08

  	
  Confidentiality.

  	
   

  
	
  10.09

  	
  Set-off.

  	
   

  
	
  10.10

  	
  Interest Rate Limitation.

  	
   

  
	
  10.11

  	
  Counterparts.

  	
   

  
	
  10.12

  	
  Integration.

  	
   

  
	
  10.13

  	
  Survival of Representations and Warranties.

  	
   

  
	
  10.14

  	
  Severability.

  	
   

  
	
  10.15

  	
  Governing Law.

  	
   

  
	
  10.16

  	
  Judgment
  Currency.

  	
   

  
	
  10.17

  	
  Waiver of Right to Trial by Jury.

  	
   

  
	
  10.18

  	
  Waiver
  of Immunities

  	
   

  
	
   

  	
   

  
	
  SIGNATURES

  	
   

  



 


iii

















 


	
  SCHEDULES

  
	
   

  
	
  1

  	
  Pricing
  Grid

  
	
  2.01

  	
  Commitments and Commitment Percentages

  
	
  5.05

  	
  Litigation

  
	
  10.02

  	
  Paying Agent’s Office, Certain Addresses for Notices

  
	
   

  
	
  EXHIBITS

  
	
   

  	
  Form of

  
	
   

  
	
  A

  	
  Loan Notice

  
	
  B

  	
  Note

  
	
  C

  	
  Assignment and Assumption

  
	
  D-1

  	
  Opinion of General Counsel of the Parent

  
	
  D-2

  	
  Opinion of Special Luxembourg Counsel to
  the Borrower

  
	
  D-3

  	
  Opinion of Special Bermudian Counsel to the
  Parent

  
	
  D-4

  	
  Opinion of Special New York Counsel to the
  Obligors

  
	
  D-5

  	
  Opinion of Special New York Counsel to the
  Paying Agent

  
	
  E

  	
  Subsidiary Guaranty

  



 


iv

















 


364-DAY CREDIT AGREEMENT


 


AGREEMENT
dated as of December 22, 2003 among TYCO INTERNATIONAL GROUP S.A., a
Luxembourg company (the “Borrower”), TYCO INTERNATIONAL LTD., a Bermuda
company (the “Parent”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A.  as Paying Agent (in such capacity, the “Paying
Agent”).


 


The Borrower
has requested that the Lenders provide to the Borrower a 364-day revolving
credit facility in the amount of $1,000,000,000, and the Lenders are willing to
do so on and subject to the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined
Terms.  As used in this Agreement, the following
terms shall have the meanings set forth below:


 


“Accumulated
Other Comprehensive (Loss) Income” on any date means the amount of
“Accumulated Other Comprehensive (Loss) Income” of the Parent and its
Subsidiaries as of the end of the most recently completed fiscal quarter of the
Parent prior to such date of determination determined on a consolidated basis
in accordance with GAAP.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Paying Agent.


 


“Affiliate” means, as to any Person, (i) any other Person that directly,
or indirectly through one or more intermediaries, controls such first Person or (ii) any Person which is
controlled by or is under common control with such controlling Person, provided,
that neither the Parent nor any Subsidiary shall be deemed to be an Affiliate
of a Principal Obligor.  As used herein,
the term “control”  means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agent-Related
Persons”   means the Paying Agent, the Co-Administrative
Agents and the Co-Syndication Agents, together with their respective Affiliates
(including, in the case of Bank of America in its capacity as the Paying Agent,
Banc of America Securities LLC as Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.


 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Applicable
Facility Fee Rate” means, for any Rating Level Period, the rate per annum
specified in Schedule 1 opposite the reference to such Rating Level
Period under the heading


 


1

















 


“Applicable Facility Fee Rate”, each change in the Applicable Facility
Fee Rate resulting from a Rating Level Change to be effective on the date of
such Rating Level Change.


 


“Applicable Lending Office”  means,
with respect to any Lender, (i) in the case of its Base Rate Loans, its
Domestic Lending Office and (ii) in the case of its Eurodollar Rate Loans,
its Eurodollar Lending Office.


 


“Applicable
Margin” means, with respect to any Eurodollar Rate Loan, for any Rating
Level Period, the rate per annum set forth in Schedule 1 opposite
the reference to such Rating Level Period under the heading “Applicable
Margin”, each change in the Applicable Margin resulting from a Rating Level
Change to be effective on the date of such Rating Level Change.


 


“Approved Fund”  means any Fund that is
administered or managed by (i) a Lender, (ii) an Affiliate of a
Lender, or (iii) an entity or an affiliate of an entity that administers
or manages a Lender.


 


“Arrangers”
means, collectively, Banc of America  Securities LLC and Citigroup Global
Markets Inc., in their respective capacities as joint lead arrangers and joint
bookrunners.


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit C.


 


“Attorney
Costs” means and includes all reasonable fees, expenses and disbursements
of any law firm.


 


“Attributable
Debt” means, on any date, the sum of (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear as a liability on
the balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount that would appear as a liability on the balance sheet of such Person
prepared as of such date in accordance with GAAP if the relevant lease were
accounted for as a capital lease.


 


“Availability
Period” means the period from the Closing Date to the earliest of
(a) the Termination Date, (b) the date of termination of the
Commitments pursuant to Section 2.04, and (c) the date of
termination of the Commitment of each Lender pursuant to Section 7.02.


 


“Bank of
America” means Bank of America, N.A. and its successors.


 


“Base Rate”   means for any day a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% per annum and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.


 


“Base Rate
Loan” means, at any time, a Loan that
bears interest based on the Base Rate.


 


2

















 


“Bermuda
Companies Law”  means every Bermuda statute from time to
time in force concerning companies insofar as the same applies to the Parent.


 


“Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by each of
the Lenders pursuant to Section 2.01.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Paying Agent’s Office is located and, if such
day relates to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.


 


“Closing
Date” means the date as of which the Paying Agent notifies the Borrower
that all the conditions precedent in Section 4.01 are satisfied or
waived in accordance with Section 4.01 (or, in the case of Section 4.01(b),
waived by the Person entitled to receive the applicable payment).


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Co-Administrative
Agents” means Bank of America, N.A. and Citicorp North America, Inc., as
Co-Administrative Agents.


 


“Co-Documentation
Agents” means Goldman Sachs Credit Partners L.P., Morgan Stanley Bank and
UBS Loan Finance LLC, as Co-Documentation Agents.


 


“Co-Syndication
Agents” means ABN Amro Bank N.V., Deutsche Bank Securities Inc. and
JPMorgan Chase Bank, as Co-Syndication Agents.


 


“Commitment”
means, as to each Lender, its obligation to make Loans to the Borrower pursuant
to Section 2.01, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.


 


“Commitment
Percentage” means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender at such time
and the denominator of which is the amount of the Aggregate Commitments at such
time; provided that if the Commitment of each Lender to make Loans has
been terminated pursuant to Section 7.02, then the Commitment of
each Lender shall be determined based on the Commitment Percentage of such
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof.  The initial Commitment of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.


 


3

















 


“Consolidated EBITDA” means, for any
fiscal period, Consolidated Net Income for such period plus the
following to the extent deducted in calculating such Consolidated Net
Income:  (a) Consolidated Interest
Expense for such period, (b) Federal, state and local income tax (and
franchise tax imposed in lieu of income tax) expense for such period,
(c) the amount of depreciation and amortization expense deducted in
determining Consolidated Net Income for such period, (d) the amount of
rental payments with respect to Synthetic Lease Obligations deducted in
determining such Consolidated Net Income, and (e) minority interests in other
Persons.


 


“Consolidated Funded Debt” means, as of any date of
determination, the aggregate amount of Debt of the Parent and its Consolidated
Subsidiaries (without duplication), determined on a consolidated basis, as of
such date (including Attributable Debt); provided that (i) if a
Permitted Securitization Transaction is outstanding at such date and is
accounted for as a sale of accounts receivable, chattel paper, general
intangibles, or the like, under GAAP, Consolidated Funded Debt determined as
aforesaid shall be adjusted to include the additional Debt, determined on a
consolidated basis as of such date, which would have been outstanding at such
date had such Permitted Securitization Transaction been accounted for as a
borrowing at such date, and (ii) Consolidated Funded Debt shall in any
event include any Preferred Stock held by a Person other than the Parent or a
Wholly-Owned Consolidated Subsidiary, at the higher of its voluntary or
involuntary liquidation value; and provided that Consolidated Funded
Debt shall not include letters of credit, bank guarantees and similar
instruments that the Borrower has identified to the Paying Agent as supporting
Performance Obligations of the Parent and any of its Subsidiaries; and provided,
further, that Guarantees shall be valued as provided in the definition of
“Guarantee”, and provided that Consolidated Funded Debt shall not
include Debt of a joint venture, partnership or similar entity which is
Guaranteed by the Parent or a Consolidated Subsidiary by virtue of the joint
venture, partnership or similar arrangement with respect to such entity or by
operation of applicable law (and not otherwise) except to the extent that the
aggregate outstanding principal amount of such excluded Debt at any date
exceeds $50,000,000.


 


“Consolidated Interest Expense” means,
for any fiscal period (without duplication), (a) the consolidated interest
expense of the Parent and its Consolidated Subsidiaries for such period plus
(b) if a Permitted Securitization Transaction outstanding during such
period is accounted for as a sale of accounts receivable, chattel paper,
general intangibles or the like under GAAP, the additional consolidated
interest expense that would have accrued during such period had such Permitted
Securitization Transaction been accounted for as a borrowing during such period
plus (c) the amount of dividends payable (in cash) at the rate
stated in the relevant certificate of designation or authorizing documentation
during such period with respect to Preferred Stock of the Parent and its
Subsidiaries, in each case determined on a consolidated basis.


 


“Consolidated Leverage Ratio” means, at any time, the ratio of
(a) Consolidated Funded Debt at such time to (b) Consolidated
EBITDA for the then most recently concluded period of the four consecutive
fiscal quarters of the Parent.


 


“Consolidated
Net Income” means, for any fiscal period, the consolidated net income of
the Parent and its Consolidated Subsidiaries for such period, after eliminating
therefrom all Extraordinary Gains and Losses.


 


4

















 


“Consolidated Net Worth” means, at any date, the consolidated
stockholders’ equity of the Parent and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date and adjusted so as to
exclude the effect of Accumulated Other Comprehensive (Loss) Income as of such
date.


 


“Consolidated Subsidiary” means, at
any date, with respect to any Person, any Subsidiary or other entity the
accounts of which would be consolidated with those of such Person in its
consolidated financial statements if such statements were prepared as of such
date in accordance with GAAP, and unless otherwise specified, Consolidated
Subsidiary means a Consolidated Subsidiary of the Parent.


 


“Consolidated
Tangible Assets” means, at any time, the total assets less all Intangible
Assets appearing on the balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of the most recently concluded fiscal quarter of the
Parent, prepared on a consolidated basis in accordance with GAAP.


 


“Debt” of any Person means, at any date, without duplication, (i) the
principal of all obligations of such Person for borrowed money,
(ii) the principal of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services recorded
on the books of such Person, except for (a) trade and similar accounts
payable and accrued expenses arising in the ordinary course of business,
(b) employee compensation and pension obligations, and other obligations
arising from employee benefit programs and agreements or other similar
employment arrangements, (c) obligations in respect of trade letters of
credit supporting trade and similar accounts payable arising in the ordinary
course of business, (d) obligations in respect of customer advances
received in the ordinary course of business and (e) obligations in
connection with earnout and holdback agreements in the ordinary course of
business, (iv) all obligations of such Person as lessee which are
capitalized on the books of such Person in accordance with GAAP, (v) all
Debt secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, (vi) Synthetic Lease Obligations,
(vii) without duplication, all Debt of others Guaranteed by such Person;
and provided that the term “Debt” shall not include:


 


(A) Intercompany Debt; or


 


(B) performance bonds, performance
guaranties, letters of credit, bank guaranties and similar instruments to the
extent that the outstanding reimbursement obligations of such Person in respect
thereof are collateralized by cash or cash equivalents, which cash or cash
equivalents would not be reflected as assets on a balance sheet of such Person
prepared in accordance with GAAP; or


 


(C)           contingent reimbursement obligations in
respect of performance bonds, performance guaranties, bank guaranties or
letters of credit issued in lieu of performance bonds or performance guaranties
or similar instruments, in each case, incurred by such Person in the ordinary
course of business; or


 


5

















 


(D)          contingent reimbursement obligations in
respect of trade letters of credit, or similar instruments, in each case,
incurred by such Person in the ordinary course of business; or


 


(E)           contingent reimbursement obligations in
respect of standby letters of credit or similar instruments securing
self-insurance or fully-fronted insurance obligations of such Person; or


 


(F)           Nonrecourse Debt;


 


in each case with respect to (C), (D) and (E), so long as the
underlying obligation supported thereby does not itself constitute Debt.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would constitute an
Event of Default.


 


“Default
Rate” means, with respect to a Base Rate Loan, the Base Rate plus 2%
per annum; and with respect to a Eurodollar Rate Loan, the Eurodollar Rate
(including any Applicable Margin) otherwise applicable to such Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Loans required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Paying Agent or any other Lender any other amount required to
be paid by it hereunder within one Business Day of the date when due, unless
the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.


 


“Designated
Officer” means the chairman, president, chief financial officer or
treasurer of the Parent or the treasurer or controller of Tyco International
(US) Inc.


 


“Dollars”
and “$” mean lawful money of the United States.


 


“Domestic
Lending Office”  means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Lender may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Paying Agent.


 


“Eligible
Assignee” has the meaning specified in Section 10.07(g).


 


“Environmental Laws”  means
any and all Federal, state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees, plans,
injunctions,


 


6

















 


permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment or the effect of
the environment on human health or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-up or other
remediation thereof.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower, any other Obligor or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Substances, (c) exposure to any
Hazardous Substances, (d) the release or threatened release of any Hazardous
Substances into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.


 


“ERISA Group”  means any Obligor and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any Obligor, are
treated as a single employer under Section 414 of the Code.


 


“Eurodollar
Lending Office” means, as to
each Lender, its office, branch or affiliate located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Eurodollar Lending Office) or such other office, branch or
affiliate of such Lender as it may hereafter designate as its Eurodollar
Lending Office by notice to the Borrower and the Paying Agent.


 


“Eurodollar
Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan:


 


(a)           the rate per annum equal to the rate
determined by the Paying Agent to be the offered rate that appears on the page
of the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or


 


(b)           if the rate referenced in the preceding
clause (a) does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate determined by the
Paying Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term


 


7

















 


equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or


 


(c)           if the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum determined by
the Paying Agent as the rate of interest at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the
London interbank eurodollar market at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest Period.


 


“Eurodollar
Rate Loan” means, at any time, a Loan that bears interest at a rate based
on the Eurodollar Rate.


 


“Eurodollar
Reserve Percentage”  means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of “Eurocurrency liabilities” (or in respect of any other category
of liabilities which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender
to United States residents).


 


“Event of Default” has the meaning
specified in Section 7.01.


 


“Existing Credit Agreements” means, collectively, (a) the
Five-Year Credit Agreement dated as of February 7, 2001, among the
Borrower, the Parent, JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank) as Administrative Agent and the lenders party thereto and (b)
the 364-Day Revolving Credit Agreement dated as of January 31, 2003, among
the Borrower, the Parent, Sensormatic Electronics Corporation, Scott
Technologies, Inc., and Innerdyne, Inc., as Parent Subsidiary Guarantors, and
Bank of America, N.A., as Administrative Agent and the lenders party thereto.


 


“Existing
Litigation” has the meaning set forth in Section 5.05.


 


“Extraordinary
Gains and Losses” means and
includes, for any fiscal period, (i) all extraordinary gains and losses
and all other material (whether considered individually or in the aggregate)
nonrecurring non-cash items of the Parent and its Consolidated Subsidiaries for
such period, determined on a consolidated basis, (ii) gains or losses from
the discontinuance of operations and gains or losses of the Parent and its Consolidated
Subsidiaries for such period resulting from the sale, conversion or other
disposition of material assets of the Parent or any Consolidated Subsidiary
other than in the ordinary course of business, (iii) cash payments
pursuant to judgments in and/or settlements of the Existing Litigation, and
(iv) cash charges incurred after September 30, 2003 relating to
divestitures and restructurings to the extent that the aggregate amount of such
charges does not exceed $500,000,000.


 


8

















 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Paying Agent.


 


“Fee
Letters” means, collectively, (a) the letter dated as of
November 3, 2003 between the Borrower, the Arrangers and the
Co-Administrative Agents and (b) the letter dated as of December 9,
2003 between the Borrower and the Paying Agent.


 


“Financing
Documents” means this Agreement, each Note, the Fee Letters and each
Subsidiary Guaranty (if any).


 


“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.


 


“Fund”
has the meaning set forth in Section 10.07(g).


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination.


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.


 


“Granting Lender” has the meaning specified in Section 10.07(h).


 


“Guarantee”
means, as to any Person (without duplication) (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or other obligation payable or performable by another
Person (excluding the Borrower or any Affiliate of the Borrower) (the “primary
obligor”) in any manner, whether directly or indirectly, by way of
guarantee, standby letter of credit or otherwise, and including any obligation
of such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other obligation,
(ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Debt or other obligation of the payment
or performance of such Debt or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Debt


 


9

















 


or other obligation, or (iv) entered into for the purpose of assuring
in any other manner the obligee in respect of such Debt or other obligation of
the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Debt or other obligation of any other Person, whether or
not such Debt or other obligation is assumed by such Person (and, if not so
assumed, the amount of any such Guarantee shall be equal to the lesser of (i)
the value of the assets subject to such Lien and (ii) the amount of the
relevant Debt or other obligation), excluding however endorsements of
instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee shall be deemed
to be an amount equal to the lesser of (i) the stated or determinable amount of
the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith and (ii) the stated maximum amount of such
Guarantee.  The term “Guarantee” as a
verb has a corresponding meaning.


 


“Guarantors”
means, collectively, the Parent and each Subsidiary Guarantor.


 


“Hazardous Substances” means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees”
has the meaning set forth in Section 10.05.


 


“Information”
has the meaning set forth in Section 10.08.


 


“Intangible Assets” means, at any date, the amount (if
any) which would be stated under the heading “Goodwill and Other Intangible
Assets, Net” or under any other heading relating to intangible assets
separately listed, in each case, on the face of a balance sheet of the Parent
and its Consolidated Subsidiaries prepared on a consolidated basis as of such
date.


 


“Intercompany
Debt” means (i) Debt of the Parent owed to a Subsidiary and (ii) Debt of a
Subsidiary owed to the Parent or another Subsidiary.


 


“Interest
Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan, the Termination Date and, if the
Term-Out Option has been exercised and is in effect, the Maturity Date, provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates within such Interest Period that fall every
three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, each Quarterly Payment Date,
the Termination Date and, if the Term-Out Option has been exercised and is in
effect, the Maturity Date.


 


“Interest
Period” means, with respect to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower in its Loan Notice, or such other period as is twelve months or
less as requested by the Borrower and agreed to by all the Lenders; provided
that:


 


10

















 


(a)           any Interest Period that would otherwise end
on a day that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;


 


(b)           any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period;


 


(c)           any Interest Period that would otherwise
commence before and extend beyond the Termination Date shall end on the
Termination Date; and


 


(d)           if any Interest Period in respect of a Term
Loan would otherwise commence before and extend beyond the Maturity Date, such
Interest Period shall end on the Maturity Date.


 


“IRS”
means the United States Internal Revenue Service.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“Lender”
has the meaning specified in the introductory paragraph hereto.


 


“Lien”
means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge, or other security interest, or any preferential arrangement
having substantially the same effect as a security interest (including any
conditional sale or other title retention agreement (not including an operating
lease) and any financing lease having substantially the same economic effect as
any of the foregoing).


 


“Loan”
means, collectively, each loan made pursuant to Section 2.01 and
each Term Loan.


 


“Loan
Notice” has the meaning specified in Section 2.02.


 


“Material Adverse Change” or “Material Adverse Effect” means a material adverse change in or
material adverse effect on (i) the business, assets, liabilities (actual or
contingent), consolidated financial position or consolidated results of
operations of the Parent and its Consolidated Subsidiaries taken as a whole,
(ii) the ability of the Obligors to perform their obligations under the
Financing Documents, or (iii) the rights and remedies of the Paying Agent or
any Lender under the Financing Documents.


 


11

















 


“Material Debt”  means Debt in an aggregate
outstanding principal amount exceeding $50,000,000.


 


“Material Plan” means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of $25,000,000.


 


“Maturity
Date” has the meaning set forth in Section 2.05(b).


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor to its business of
rating debt securities.


 


“Moody’s
Rating” means, at any time, the rating of the Borrower’s senior, unsecured,
long-term indebtedness for borrowed money that is not guaranteed by any other
Person or subject to any other credit enhancement.


 


“Multiemployer Plan” means at any time
a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA either
(a) to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or (b) has at any time within the preceding
five plan years been maintained, or contributed to, by any Person who was at
such time a member of the ERISA Group for employees of any Person who was at
such time a member of the ERISA Group.


 


“Nonrecourse
Debt” means, at any time, all Debt of Subsidiaries of the Parent
outstanding at such time incurred on terms that recourse may be had to such
Subsidiary only to the extent of enforcing security over those assets acquired,
financed, developed or exploited with the proceeds of such Debt and not by way
of action against such Subsidiary (nor against the Parent or any other
Subsidiary of the Parent) as a general and unconditional obligor of such Debt, provided
that, such Debt shall not exceed the cost to acquire, finance, develop or
exploit such assets (including associated costs and expenses).


 


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Obligor arising under any Financing Document or otherwise with
respect to any Loan, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Obligor or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“Obligors”
means, at any time, collectively, the Borrower, the Parent and each Subsidiary
Guarantor at such time.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect


 


12

















 


to any partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice with
respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


“Other
Taxes” has the meaning specified in Section 3.01(b).


 


“Outstanding
Amount” means on any date, the aggregate outstanding principal amount of
Loans after giving effect to any Borrowings and prepayments or repayments of
Loans occurring on such date.


 


“Parent”
has the meaning specified in the introductory paragraph hereto.


 


“Participant”
has the meaning specified in Section 10.07(d).


 


“Paying
Agent” means Bank of America in its capacity as Paying Agent under any of
the Financing Documents, or any successor paying agent.


 


“Paying
Agent’s Office” means the Paying Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or
account as the Paying Agent may from time to time notify the Borrower and the
Lenders.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.


 


“Performance
Obligation” means (i) performance or warranty obligations under (or in
connection with a contract bid for) supply, service, construction or other
contracts, including, without limitation, bid and performance bonds or
guaranties relating to the foregoing obligations and contracts or (ii) letters
of credit or bank guarantees that support the obligations referred to in clause
(i) or provide credit support for the obligations of a Person in connection
with advance payments made to such Person.


 


“Permitted Acquired Debt”  means
Debt of a Person that exists at the time such Person becomes a Subsidiary or at
the time the Parent or a Subsidiary acquires all or substantially all of the
assets of such Person if such Debt is assumed by the Parent or such Subsidiary
and was not created in contemplation of any such event (“Acquired Debt”),
and which:


 


(a)           remains outstanding no more than 180 days
after the date such Person becomes a Subsidiary (the “Acquisition Date”); or


 


(b)           remains outstanding more than 180 days
after the Acquisition Date, but only if
(i) 180 days after the Acquisition Date, the senior unsecured debt of
the Borrower is rated at least BBB- by S&P or Baa3 by Moody’s, (ii) such
Acquired Debt by its terms is not callable or redeemable prior to its stated
maturity within 180 days after the Acquisition Date and (iii) such Person in
good faith has made or caused to be made an offer to acquire all such Acquired
Debt, including, without limitation, an offer
to


 


13

















 


exchange such Acquired Debt for securities of the Borrower or the
Parent, on terms which, in the opinion of an independent investment banking
firm of national reputation and standing, are consistent with market practices
in existence at the time for offers of a similar nature, provided  that the expiration date of
any such offer shall not be later than the date 180 days after the
Acquisition Date, and provided  further  that if Acquired Debt which
becomes Permitted Acquired Debt under this clause (b) thereafter becomes
callable or redeemable prior to its stated maturity, such Acquired Debt shall
cease to be Permitted Acquired Debt under this clause (b) 90 days after it becomes
so callable or redeemable;  or


 


(c)           remains outstanding more than 180 days after
the Acquisition Date and is not Permitted Acquired Debt under clause (b), but
only if and to the extent that the aggregate outstanding principal amount of
Permitted Acquired Debt under this clause (c) at no time exceeds 5%  of the Consolidated Tangible Assets of
the Parent.


 


“Permitted Securitization Transaction”  means
any sale or sales of any accounts receivable, general intangibles, chattel
paper or other financial assets and related rights and assets of the Parent
and/or any of its Subsidiaries, and financing secured by the assets so sold,
pursuant to which the Parent and its Subsidiaries realize aggregate net
proceeds of not more than $1,500,000,000, including, without limitation, any
revolving purchase(s) of such assets where the maximum aggregate uncollected
purchase price (exclusive of any deferred purchase price) therefor does not
exceed $1,500,000,000.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”  means at any time an
employee pension benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and either (i) is maintained, or contributed to,
by any member of the ERISA Group for employees of any member of the ERISA Group
or (ii) has at any time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a member of the ERISA
Group for employees of any Person which was at such time a member of the ERISA
Group.


 


“Preferred
Stock” means any preferred and/or redeemable capital stock of the Parent or
any Subsidiary, as the case may be, that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder, in whole or in part, on or prior to
the Termination Date.


 


“Principal
Obligor” means each of the Borrower and the Parent.


 


“Property” means any interest of any
kind in any property or assets, whether real, mixed or personal and whether
tangible or intangible.


 


“Quarterly
Payment Dates” means the last Business Day of each March, June,
September and December.


 


14

















 


“Rating
Level” refers to pricing hereunder determined on the basis of the
applicable Rating Level Period.


 


“Rating
Level Period” means a Rating
Level 1 Period, a Rating Level 2 Period, a Rating Level 3 Period, a Rating
Level 4 Period, a Rating Level 5 Period or a Rating Level 6 Period; provided
that:


 


(i)            “Rating Level 1 Period” means a
period during which the Moody’s Rating is at or above A3 or the S&P Rating
is at or above A-;


 


(ii)           “Rating Level 2 Period” means a
period that is not a Rating Level 1 Period, during which the Moody’s Rating is
at or above Baa1 or the S&P Rating is at or above BBB+;


 


(iii)          “Rating Level 3 Period” means a period
that is not a Rating Level 1 Period or a Rating Level 2 Period, during which
the Moody’s Rating is at or above Baa2 or the S&P Rating is at or above
BBB;


 


(iv)          “Rating Level 4 Period” means a period
that is not a Rating Level 1 Period, a Rating Level 2 Period or a Rating Level
3 Period, during which the Moody’s Rating is at or above Baa3 or the S&P
Rating is at or above BBB-;


 


(v)           “Rating Level 5 Period” means a
period that is not a Rating Level 1 Period, a Rating Level 2 Period, a Rating
Level 3 Period or a Rating Level 4 Period, during which the Moody’s Rating is
at or above Ba1 or the S&P Rating is at or above BB+; and


 


(vi)          “Rating Level 6 Period” means a period
that is not a Rating Level 1 Period, a Rating Level 2 Period, a Rating Level 3
Period, a Rating Level 4 Period or a Rating Level 5 Period;


 


and provided, further, that if the Moody’s Rating and the
S&P Rating differ by more than one Rating Level, then the applicable Rating
Level Period shall be one Rating Level higher than the Rating Level resulting
from the application of the lower of such ratings (for which purpose Rating
Level 1 is the highest and Rating Level 5 is the lowest); and provided,
further, that any period during which there is no Moody’s Rating and there is
no S&P Rating shall be a Rating Level 6 Period.


 


“Rating
Level Change” means a change in the Moody’s Rating or the S&P Rating
that results in a change from one Rating Level Period to another, each Rating
Level Change to be deemed to take effect on the date on which the relevant
change in rating is first publicly announced by Moody’s or S&P.


 


“Refinancing”
means, with respect to any financing, any instrument or agreement amending,
restating, supplementing, extending, renewing, refunding, refinancing,
replacing or otherwise modifying, in whole or in part, the documents governing
such financing (and “Refinance” shall have a correlative meaning).


 


15

















 


“Register”
has the meaning set forth in Section 10.07(c).


 


“Request
for Borrowing” means with respect to a conversion or continuation of Loans,
a Loan Notice.


 


“Required
Lenders” means, at any time, Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans has been terminated pursuant to Section 7.02,
Lenders holding in the aggregate more
than 50% of the Total Outstandings; provided that the Commitment
of, and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Responsible
Officer” means any of the following: 
(i) the Chairman, President, Vice President and Chief Financial Officer,
Treasurer and Secretary of the Parent or (ii) the Chairman, President, Vice
President and Chief Financial Officer, Treasurer or Secretary of the Borrower
or a Managing Director of the Borrower.


 


“Restricted
Payment” means (a) any dividend or other distribution on any shares of the
Parent’s Stock (except to the extent such dividends and distributions are
payable in shares of its Stock or Stock Equivalents) or (b) any payment (except
to the extent payable in shares of the Parent’s Stock or Stock Equivalents) on
account of the purchase, redemption, retirement or acquisition of (i) any
shares of the Parent’s Stock or (ii) any option, warrant or other right to
acquire shares of the Parent’s Stock.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor to its business of rating debt securities.


 


“S&P
Rating” means, at any time, the rating of the Borrower’s senior, unsecured,
long-term indebtedness for borrowed money that is not guaranteed by any other
Person or subject to any other credit enhancement.


 


“SEC”
means the SEC, or any Governmental Authority succeeding to any of its principal
functions.


 


“Significant
Subsidiary”  means, at any date, (a) any Consolidated
Subsidiary which, including its consolidated subsidiaries, meets any of the
following conditions:


 


(i)            the proportionate share attributable to
such Consolidated Subsidiary of the total assets of the Parent and its
Consolidated Subsidiaries (after intercompany eliminations) exceeds 15% of the
total assets of the Parent and its Consolidated Subsidiaries, determined on a
consolidated basis as of the end of the most recently completed fiscal year; or


 


16

















 


(ii)           the Parent’s and its Consolidated
Subsidiaries’ equity in the income of such Consolidated Subsidiary from
continuing operations before income taxes, extraordinary items and cumulative
effect of a change in accounting principle exceeds 15% of such income of the
Parent and its Consolidated Subsidiaries, determined on a consolidated basis
for the most recently completed fiscal year; and


 


(b)           any other Subsidiary which is an Obligor.


 


“SPC” has the meaning specified in Section 10.07(h).


 


“Stock”
means, with respect to any Person, any capital stock or equity securities of or
other ownership interests in such Person.


 


“Stock
Equivalents” means, with respect to any Person, options, warrants, calls or
other rights entered into or issued by such Person to acquire any Stock of, or securities
convertible into or exchangeable for Stock of, such Person.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other entity of which a majority of the shares of securities or
other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Parent.


 


“Subsidiary
Guarantor” means each Subsidiary that has executed a Subsidiary Guaranty
pursuant to Section 6.14.


 


“Subsidiary
Guaranty” means a guaranty entered into by a Subsidiary in substantially
the form of Exhibit E.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under a
so-called synthetic, off-balance sheet or tax retention lease.


 


“Taxes”
has the meaning set forth in Section 3.01(a).


 


“Termination
Date” means December 20, 2004 (or if such day is not a Business Day,
the next preceding Business Day).


 


“Term Loan”
has the meaning set forth in Section 2.05(b).


 


“Term-Out
Option” means the right of the Borrower to convert Loans outstanding on the
Termination Date into Term Loans on and subject to the terms and conditions of
Section 2.05(b).


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans.


 


17

















 


“Type”
means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


“Unfunded Liabilities”  means,
with respect to any Plan at any time, the amount (if any) by which (i) the
value of all benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds (ii) the fair market value of all Plan
assets allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA Group to the PBGC or
to any other Person under Title IV of ERISA.


 


“United
States” and “U.S.” mean the United States of America.


 


“Wholly-Owned
Consolidated Subsidiary” means any Consolidated Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors’ qualifying shares and investments by foreign nationals mandated by
applicable law) are at the time beneficially owned, directly or indirectly, by
the Parent.


 


1.02        Other Interpretive Provisions.  With reference to this Agreement and each
other Financing Document, unless otherwise specified herein or in such other
Financing Document:


 


(a)           The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.


 


(b)           (i)            The words “herein,”
“hereto,” “hereof” and “hereunder” and words of similar
import when used in any Financing Document shall refer to such Financing
Document as a whole and not to any particular provision thereof.


 


(ii)           Article, Section, Exhibit and
Schedule references are to the Financing Document in which such reference
appears.


 


(iii)          The term “including” is by way of
example and not limitation.


 


(iv)          The term “documents” includes any and
all instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in physical
or electronic form.


 


(c)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”, the words “to” and “until”
each mean “to but excluding”, and the word “through” means “to
and including.”


 


(d)           Section headings
herein and in the other Financing Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Financing Document.


 


18

















 


1.03        Accounting
Terms.


 


(a)           All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied in a
manner consistent (except for changes concurred in by the Parent’s independent
auditors) with that used in preparing the financial statements referred to in Section 5.04(a),
except as otherwise specifically prescribed herein.


 


(b)           If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Financing Document, and either the Borrower or the
Required Lenders shall so request, the Paying Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Required Lenders); provided  that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Paying Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


1.04        References to Agreements and Laws.  Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Financing
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Financing Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.


 


1.05        Times
of Day.  Unless otherwise
specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as
applicable).


 


ARTICLE II.

THE COMMITMENTS AND BORROWINGS


 


2.01        Loans.


 


(a)           Each Lender severally
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section 2.01 from time to time, on
any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
Outstanding Amount of the Loans of any Lender shall not exceed such Lender’s
Commitment.


 


19

















 


(b)           Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under Section 2.03,
and reborrow under this Section 2.01.


 


(c)           Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein.


 


(d)           Each Borrowing under
this Section 2.01 shall be in an aggregate amount of
U.S.$10,000,000 or a larger multiple of U.S.$1,000,000 (except that any such
Borrowing may be in the aggregate amount of the available Commitments) and
shall be made from the several Lenders ratably in proportion to their
respective Commitments.


 


2.02        Borrowings, Conversions and Continuations of
Loans.


 


(a)           (i)            Each Borrowing, each
conversion of Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to
the Paying Agent (each, a “Loan Notice”).


 


(ii)           Each Loan Notice must be received by the
Paying Agent not later than 11:00 a.m. (A) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans, and (B) on the requested date of any Borrowing of Base Rate Loans; provided,
however, that if the Borrower wishes to request Eurodollar Rate Loans
having an Interest Period other than one, two, three or six months in duration
as provided in the definition of “Interest Period”, the applicable notice must
be received by the Paying Agent not later than 11:00 a.m. four Business Days
prior to the requested date of such Borrowing, conversion or continuation,
whereupon the Paying Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable to all
of them; and not later than 8:00 a.m., three Business Days before the
requested date of such Borrowing, conversion or continuation, the Paying Agent
shall notify the Borrower whether or not the requested Interest Period has been
agreed to by all the Lenders.


 


(iii)          Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.


 


(iv)          Each Loan Notice shall be in substantially
the form of Exhibit A and shall specify (A) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (B) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(C) the principal amount of Loans to be borrowed, converted or continued, (D)
the Type of Loans to be borrowed or to which existing Loans are to be
converted, and (E) if applicable, the duration of the Interest Period with respect
thereto.  If the Borrower fails to
specify a Type of Loan in a Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to


 


20

















 


Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurodollar Rate Loans.


 


(v)           If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


 


(b)           (i)            Following receipt of a
Loan Notice, the Paying Agent shall promptly notify each Lender of the amount
of its pro  rata share of the applicable Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Paying
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection.


 


(ii)           Each Lender shall make the amount of its
Loan constituting part of a Borrowing available to the Paying Agent in
immediately available funds at the Paying Agent’s Office not later than 1:00
p.m. on the Business Day specified in the applicable Loan Notice.


 


(iii)          Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Borrowing, Section 4.01), the Paying Agent shall make all
funds so received available to the Borrower in like funds as received by the
Paying Agent either by (A) crediting the account of the Borrower on the books
of Bank of America with the amount of such funds or (B) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Paying Agent by the Borrower.


 


(c)           (i)            Except as otherwise
provided herein, a Eurodollar Rate Loan may be continued or converted only on
the last day of an Interest Period for such Eurodollar Rate Loan.


 


(ii)           During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.


 


(d)           The Paying Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to
any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate.  The determination of the
Eurodollar Rate by the Paying Agent shall be conclusive in the absence of
manifest error.  At any time that Base
Rate Loans are outstanding, the Paying Agent shall notify the Borrower and the
Lenders of any change in Bank of America’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.


 


(e)           After giving effect to
all Borrowings, all conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more than ten
Interest Periods in effect with respect to Loans.


 


21

















 


2.03        Prepayments.


 


(a)           (i) The Borrower may, upon notice to the
Paying Agent, at any time or from time to time voluntarily prepay the Loans in
whole or in part without premium or penalty; provided that (A) such
notice must be received by the Paying Agent not later than 11:00 a.m. (1) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)
on the date of prepayment of Base Rate Loans; and (B) any prepayment of Loans
of either Type shall be in a principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof or, if less, the then aggregate
outstanding principal amount of the Loans of such Type.


 


(ii) 
Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. 
The Paying Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s pro  rata share of
such prepayment.  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.


 


(iii) 
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05.  Each such
prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Commitment Percentages.


 


(b)           If for any reason the
Total Outstandings at any time exceed the Aggregate Commitments then in effect,
the Borrower shall immediately prepay Loans in an aggregate amount equal to
such excess.


 


2.04        Termination or Reduction of
Commitments.


 


(a)           The Borrower may, upon
notice to the Paying Agent, terminate the Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any such notice
shall be received by the Paying Agent not later than 11:00 a.m. three Business
Days prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof or, if less, the then Aggregate Commitments,
and (iii) the Borrower shall not terminate or reduce the Aggregate Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments.


 


(b)           The Paying Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Commitments.


 


(c)           Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Commitment Percentage.


 


(d)           All facility fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


22

















 


2.05        Repayment of Loans; Term–Out Option.  (a) Subject
to the provisions of subsection (b) below, the Borrower agrees to repay in
full to the Paying Agent for the account of the Lenders, on the Termination
Date, the aggregate principal amount of Loans outstanding on such date,
including the portion of such Loans, if any, not converted into Term Loans
pursuant to subsection (b).


 


(b)           The Borrower may, by
notice to the Paying Agent not later than 11:00 a.m. one Business Day prior to
the Termination Date, subject to the conditions set forth below in this
Section 2.05(b), elect to convert all or a portion of the aggregate
outstanding principal amount of the Loans of each Lender as of the Termination
Date to a term loan of such Lender in said amount (each, a “Term Loan”
and collectively, the “Term Loans”), provided that in the event
the Borrower elects so to convert only a portion of such Loans it shall so
convert the same percentage of Loans then held by each Lender.  Each Term Loan shall bear interest, from and
including the Termination Date until the payment thereof in full, at the rates
provided for in Section 2.06 and shall otherwise constitute a Loan for all
purposes of this Agreement.  The
Borrower agrees to repay to the Paying Agent for the account of the Lenders the
unpaid principal amount of the Term Loans on the date that is one year after
the Termination Date or, if such date is not a Business Day, the immediately
preceding Business Day (the “Maturity Date”) (and any outstanding Note
shall be deemed amended accordingly). 
Anything in this Section 2.05(b) to the contrary notwithstanding,
such conversion shall be subject to the conditions precedent that:


 


(i) the representations and warranties of the
Borrower and each other Obligor contained in Article V (other than
the representation and warranty set forth in Section 5.04(b) or 5.05(a))
or any other Financing Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the Termination Date,
except to the extent that any such representation or warranty specifically
refers to an earlier date, in which case it shall be true and correct as of such
earlier date; and


 


(ii) no Default shall exist, or would result
from such conversion.


 


Any notice of
conversion delivered by the Borrower in accordance with this
Section 2.05(b) shall constitute a certification by the Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
and, unless the Borrower after delivery of such notice otherwise notifies the
Paying Agent prior to the Termination Date, as of such date).


 


2.06        Interest.


 


(a)           Subject to the
provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest
Period relating thereto at a rate per annum equal to the Eurodollar Rate for
such Interest Period plus the Applicable Margin, and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate.


 


(b)           If any amount payable
by the Borrower under any Financing Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by


 


23

















 


acceleration, by mandatory prepayment or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.  Furthermore, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.  Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.


 


(c)           Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


 


2.07        Fees.


 


(a)           Facility Fee.  The
Borrower shall pay to the Paying Agent, for the account of each Lender in
accordance with its Commitment Percentage, a facility fee at a rate per annum
equal to the Applicable Facility Fee Rate times the actual daily amount
of the Aggregate Commitments as reduced from time to time pursuant to Section 2.04
(or, if the Aggregate Commitments have terminated, on the Outstanding Amount of
all Loans), regardless of usage.  The
facility fee shall accrue at all times during the Availability Period (and
thereafter so long as any Loans remain outstanding), including at any time
during which one or more of the conditions in Article IV is not
met, and shall be due and payable quarterly in arrears on each Quarterly
Payment Date, commencing with the first such date to occur after the Closing
Date, and on the Termination Date (and, if applicable, thereafter on demand);
provided, however that the facility fee will not be payable with
respect to the period after the Term-Out Option has been exercised and made
effective.


 


(b)           Other Fees. 
(i)  The Borrower shall pay to the Arrangers
and the Paying Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letters. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


(ii)           The Borrower shall pay to the Lenders such
fees as shall have been separately agreed upon in writing in the amounts and at
the times so specified.  Such fees shall
be fully earned when paid and shall not be refundable for any reason
whatsoever.


 


2.08        Computation of Interest and Fees.  All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed.  All other
computations of fees and interest shall be made on the basis of a 360-day year and
actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or


 


24

















 


such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.10(a),
bear interest for one day.


 


2.09        Evidence
of Debt.


 


(a)           The Loans made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and by the Paying Agent in the ordinary course of business.  The accounts or records maintained by the Paying
Agent and each Lender shall be conclusive absent manifest error of the amount
of the Loans made by the Lenders to the Borrower and the interest and payments
thereon.  Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to
the Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Paying Agent in respect of such matters, the
accounts and records of the Paying Agent shall control in the absence of
manifest error.  Upon the request of any
Lender made through the Paying Agent, the Borrower shall execute and deliver to
such Lender (through the Paying Agent) a Note, which shall evidence such
Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


(b)           In the event of any
conflict between the accounts and records maintained by the Paying Agent and
the accounts and records of any Lender in respect of such matters, the accounts
and records of the Paying Agent shall control in the absence of manifest error.


 


2.10        Payments Generally.


 


(a)           All payments to be made
by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. 
Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Paying Agent, for the account of the
respective Lenders to which such payment is owed, at the Paying Agent’s Office
in Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein.  The Paying Agent
will promptly distribute to each Lender its Commitment Percentage (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office.  All payments received by the Paying Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue; provided that payment shall be
deemed received by 2:00 p.m. if the Borrower provides the Paying Agent with
written confirmation of a Federal Reserve Bank reference number no later than
4:00 p.m. on such Business Day.


 


(b)           If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


(c)           Unless the Borrower or
any Lender has notified the Paying Agent, prior to the date any payment is
required to be made by it to the Paying Agent hereunder, that the Borrower or
such Lender, as the case may be, will not make such payment, the Paying Agent
may assume that the Borrower or such Lender, as the case may be, has timely
made such payment and may


 


25

















 


(but shall not be so required to), in reliance thereon, make available
a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was
not in fact made to the Paying Agent in immediately available funds, then:


 


(i)            if the Borrower failed to make such
payment, each Lender shall forthwith on demand repay to the Paying Agent the
portion of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the Paying
Agent to such Lender to the date such amount is repaid to the Paying Agent in
immediately available funds at the Federal Funds Rate from time to time in
effect; and


 


(ii)           if any Lender failed to make such payment,
such Lender shall forthwith on demand pay to the Paying Agent the amount
thereof in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the Paying Agent to the
Borrower to the date such amount is recovered by the Paying Agent (the “Compensation
Period”) at a rate per annum equal to the Federal Funds Rate from time to
time in effect. If such Lender pays such amount to the Paying Agent, then such
amount shall constitute such Lender’s Loan included in the applicable
Borrowing.  If such Lender does not pay
such amount forthwith upon the Paying Agent’s demand therefor, the Paying Agent
may make a demand therefor upon the Borrower, and the Borrower shall pay such
amount to the Paying Agent, together with interest thereon for the Compensation
Period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing.  Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Paying Agent or the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.


 


A notice of
the Paying Agent to any Lender or the Borrower with respect to any amount owing
under this subsection (c) shall be conclusive, absent manifest error.


 


(d)           If any Lender makes
available to the Paying Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Paying Agent because the
conditions to the applicable Borrowing set forth in Article IV are
not satisfied or waived in accordance with the terms hereof, the Paying Agent
shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.


 


(e)           The obligations of the
Lenders hereunder to make Loans are several and not joint.  The failure of any Lender to make any Loan
on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan.


 


(f)            Nothing herein shall
be deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 


26

















 


2.11        Sharing of Payments.  If, other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of the Loans made by it, any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Paying Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment in
respect of such Loans pro  rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described
in Section 10.06 (including pursuant to any settlement entered into
by the purchasing Lender in its discretion), such purchase shall to that extent
be rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of (i) the amount of such
paying Lender’s required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon.  The Borrower agrees
that any Lender so purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. 
The Paying Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Lenders following any such
purchases or repayments.  Each Lender
that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Any and all payments by
each Principal Obligor to or for the account of the Paying Agent or any Lender
under any Financing Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of the Paying
Agent and each Lender, taxes imposed on or measured by its overall net income,
and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Paying Agent or such Lender, as the case may be, is organized or maintains an
Applicable Lending Office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”).  If either Principal Obligor shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Financing Document to the Paying Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), each of the Paying Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been


 


27

















 


made, (ii) such Principal Obligor shall make such deductions, (iii)
such Principal Obligor shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Laws, and
(iv) within 30 days after the date of such payment, such Principal Obligor
shall furnish to the Paying Agent (which shall forward the same to such Lender)
the original or a certified copy of a receipt evidencing payment thereof.


 


(b)           In addition, each
Principal Obligor agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under any Financing Document or from
the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, any Financing Document (hereinafter referred to as “Other
Taxes”).


 


(c)           Each Principal Obligor
agrees to indemnify the Paying Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section) paid by the Paying
Agent and such Lender with respect to any sum payable under any Financing
Document and (ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  Payment under this subsection (d) shall be made within 30
days after the date the Lender or the Paying Agent makes a demand therefor.


 


(d)           If either Principal
Obligor is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 3.01, then such Lender will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Lender in the good faith exercise of its discretion, is not
otherwise materially disadvantageous to such Lender.


 


(e)           The Paying Agent and
each Lender shall use reasonable efforts to promptly furnish to a Principal
Obligor properly completed and executed copies of such forms as such Principal
Obligor may reasonably request in connection with Taxes imposed with respect to
sums payable under any Financing Document to the Paying Agent or Lender (as the
case may be), provided that nothing in this Section 3.01(e)
shall require the Paying Agent or any Lender to disclose any confidential or
proprietary information.


 


3.02        Illegality. 
If, after the date of this Agreement, any Lender determines in its
reasonable judgment that the adoption of, or any change in or in the
interpretation or administration of, any applicable Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Eurodollar
Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, then, on notice thereof by such Lender to the Borrower through the Paying
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Paying Agent and the Borrower that the circumstances
giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from
such Lender (with a copy to the Paying Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the then current Interest Period therefor, if such Lender


 


28

















 


may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans.  Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.  Each
Lender agrees to designate a different ApplicableLending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender.


 


3.03        Inability to Determine Rates.  If the Required Lenders determine that for
any reason adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Paying Agent
will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until the Paying Agent (upon the instruction of the Required
Lenders) revokes such notice.  Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.


 


3.04        Increased Cost and Reduced
Return; Capital Adequacy; Reserves
on Eurodollar Rate Loans.


 


(a)           If, after the date of
this Agreement, any Lender determines in its reasonable judgment that the
adoption of, or any change in or in the interpretation or administration of,
any applicable Law, or such Lender’s compliance therewith, has resulted in an
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding
for purposes of this subsection (a) any such increased costs or reduction
in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Applicable Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c)),
then from time to time within 30 days of demand of such Lender (with a
copy of such demand to the Paying Agent), the Borrower shall pay to such Lender
such additional amounts as will compensate such Lender for such increased cost
or reduction.


 


(b)           If any Lender
determines that the introduction of any Law regarding capital adequacy or any
change therein or in the interpretation thereof, or compliance by such Lender
(or its Applicable Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital), then from time to time within 30 days of
demand of such Lender (with a copy of such demand to the Paying Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.


 


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(c)           The Borrower shall pay
to each Lender, as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least
15 days’ prior notice (with a copy to the Paying Agent) of such additional
interest from such Lender.  If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.


 


(d)           Each Lender will
promptly notify the Borrower and the Paying Agent of any event of which it has
knowledge, occurring after the date of this Agreement, which will entitle such
Lender to compensation pursuant to this Section 3.04; provided that (i) if any Lender fails to give such notice within 90 days
after it obtains actual knowledge of such an event (or, in the exercise of
ordinary due diligence, should have obtained actual knowledge thereof), such
Lender shall only be entitled to payment under this Section 3.04
for costs incurred from and after the date 90 days prior to the date that such
Lender does give such notice and (ii) each such Lender will designate a
different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Lender in the good faith exercise of its discretion, be otherwise
disadvantageous to such Lender.


 


3.05        Funding
Losses.  Upon demand of any Lender (with a copy to
the Paying Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:


 


(a)           any continuation,
conversion, payment or prepayment of any Eurodollar Rate Loan on a day other
than the last day of an Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or


 


(b)           any failure by the
Borrower (for a reason other than the failure of such Lender to comply with its
obligation to make a Loan) to prepay, borrow, continue or convert any
Eurodollar Rate Loan on the date or in the amount notified by the Borrower;


 


including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained.  The Borrower
shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.


 


For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to
have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for
such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan was in fact so funded.


 


3.06        Matters Applicable to all Requests for
Compensation.  Any Lender or Agent claiming compensation
under this Article III shall deliver to the Paying Agent, who shall
deliver


 


30

















 


to the Borrower contemporaneously with the demand for payment a
certificate setting forth in reasonable detail the calculation of any
additional amount or amounts to be paid to it hereunder and the basis used to
determine such amounts and such certificate shall be conclusive in the absence
of manifest error.  In determining such
amount, the Paying Agent or such Lender will use any reasonable averaging and
attribution methods.


 


3.07        Survival. 
All of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


3.08        Substitution of Lender.  If any Lender (i) has demanded compensation for increased
costs pursuant to Section 3.01 or 3.04 or is entitled to
payments under Section 3.04(a) or (ii) has determined that the
making or maintaining of any Eurodollar Rate Loan has become unlawful or
impossible pursuant to Section 3.02 and similar additional interest
or compensation has not been demanded by, or a similar determination has not
been made by, all of the Lenders, the Borrower shall have the right to
designate an assignee which is not an Affiliate of the Borrower to purchase for
cash, pursuant to an Assignment and Assumption, the outstanding Loans and
Commitment of such Lender and to assume all of such Lender’s other rights and
obligations hereunder without recourse to or representation or warranty by, or
expense to, such Lender (other than as set forth in the Assignment and
Assumption), for a purchase price equal to (A) the outstanding principal
amount of such Lender’s Loan plus (B) any accrued but unpaid interest
thereon plus (C) the accrued but unpaid fees in respect of such Lender’s
Commitment plus (D) such amount, if any, as would be payable pursuant to Section 3.05
if the Loan of such Lender were prepaid in full on the date of consummation of
such assignment plus (E) any other amounts due and payable to such Lender
hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO EFFECTIVENESS AND BORROWINGS


 


4.01        Conditions to Effectiveness.  This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 10.01):


 


(a)           The Paying Agent’s receipt of the following,
each of which shall be originals, electronic copies or facsimiles (followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Obligor, each dated the Closing Date (or, in
the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Paying Agent
and its legal counsel:


 


(i)            executed counterparts of this Agreement,
sufficient in number for distribution to the Paying Agent, each Lender and the
Borrower;


 


(ii)           a Note executed by the Borrower in favor of
each Lender requesting a Note;


 


(iii)          certified copies of the charter, by-laws and
other constitutive documents of each Principal Obligor and of resolutions of
the Board of Directors of each Principal Obligor authorizing the making and
performance by it of the


 


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Financing Documents to which it is a party, together with incumbency
certificates evidencing the identity, authority and capacity of each Person
authorized to execute and deliver the Financing Documents thereunder;


 


(iv)          a favorable opinion of each of (i) the
general counsel of the Parent, substantially in the form of Exhibit D-1,
(ii) Allen & Overy, special Luxembourg counsel of the Borrower,
substantially in the form of Exhibit D-2, (iii) Appleby, Spurling
& Kempe, special Bermudian counsel of the Parent, substantially in the form
of Exhibit D-3, (iv) Foley & Lardner, special New York
counsel of the Obligors, substantially in the form of Exhibit D-4, and
(v) special New York counsel to the Paying Agent, substantially in the
form of Exhibit D-5;


 


(v)           a certificate signed by a Responsible
Officer or Designated Officer certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and (B) that there has been no
event or circumstance since the date of the financial statements referred to in
Section 5.04(a) that has had or could be reasonably expected to
have, either individually or in the aggregate, a Material Adverse Effect;


 


(vi)          evidence that the commitments under Existing
Credit Agreements have been or concurrently with the Closing Date are being
terminated and that all amounts thereunder have been paid in full or are being
paid in full in cash out of the proceeds of the initial Borrowing;


 


(vii)         evidence of
the consent of CT Corporation System in New York, New York to the appointment
and designation provided for by Section 10.15(c) hereof; and


 


(viii)        such other assurances,
certificates, documents, consents or opinions as the Paying Agent or the
Required Lenders reasonably may require.


 


(b)           Any fees required to be paid on or before
the Closing Date shall have been paid.


 


(c)           Unless waived by the Co-Administrative
Agents and the Arrangers, the Borrower shall have paid all reasonable Attorney
Costs of the Co-Administrative Agents and the Arrangers to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of reasonable
Attorney Costs as shall constitute its reasonable estimate of reasonable
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Paying Agent).


 


(d)           The Closing Date shall have occurred on or
before December 31, 2003.


 


The Paying
Agent shall promptly notify the Borrower and the Lenders of the Closing Date,
and such notice shall be conclusive and binding.


 


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4.02        Conditions to all Borrowings.  The obligation of each Lender to honor any
Request for Borrowing (other than a Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject
to the following conditions precedent:


 


(a)           The representations and warranties of the
Borrower and each other Obligor contained in Article V (other than,
after the Closing Date, the representation and warranty set forth in Section 5.04(b)
or 5.05(a)) or any other Financing Document, or which are contained in
any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
date of such Borrowing, except to the extent that any such representation or
warranty specifically refers to an earlier date, in which case it shall be true
and correct as of such earlier date;


 


(b)           No Default shall exist, or would result from
such proposed Borrowing.


 


(c)           The Paying Agent shall have received a
Request for Borrowing in accordance with the requirements hereof.


 


Each Request
for Borrowing (other than a Loan Notice requesting only a conversion of Loans
to the other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Borrowing.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


Each Principal
Obligor represents and warrants to the Paying Agent and the Lenders that:


 


5.01        Corporate Existence and Power.  Each Principal Obligor is a company duly
organized or formed and validly existing under the laws of its jurisdiction of organization
or formation.  Each Principal Obligor
has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except to the extent that failure to have any such power or governmental
license, authorization, consent or approval could not, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to have a Material Adverse Effect.


 


5.02        Corporate and Governmental
Authorization; No Contravention.  The execution, delivery and performance by
each Principal Obligor of this Agreement and by the Borrower of the Notes: (a)
are within its corporate or, if applicable, partnership, powers; (b) have been
duly authorized by all necessary corporate or, if applicable, partnership,
action on its part; (c) require no license, consent, approval or other action
by or in respect of, or filing or registration with, any governmental body,
agency or official, in each case, on its part; and (d) do not contravene, or
constitute a default under, any provision of (i) applicable law or regulation,
(ii) its Organization Documents, or (iii) any agreement or instrument
evidencing or governing Debt of such Principal Obligor or any other material
agreement, judgment, injunction, order, decree or other instrument binding upon
such Principal Obligor.


 


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5.03        Binding
Effect.  This Agreement constitutes a legal, valid
and binding agreement of such Principal Obligor and each Note, when executed
and delivered in accordance with this Agreement, will constitute a legal, valid
and binding obligation of the Borrower, in each case enforceable against such
Principal Obligor in accordance with its terms.


 


5.04        Financial Information.


 


(a)  The consolidated balance sheet of the Parent
and its Consolidated Subsidiaries as of September 30, 2003 and the related
consolidated statements of income, of shareholders’ equity and of cash flows
for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP and
set forth in the Parent’s 2003 Form 10-K, a copy of which has been delivered to
each of the Lenders, fairly present, in conformity with GAAP, the consolidated
financial position of the Parent and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
period.


 


(b)           Since
September 30, 2003 there has been no Material Adverse Change.


 


5.05        Litigation.  There is no action, suit, proceeding
or investigation pending against, or to the knowledge of the Parent threatened
against or affecting, the Parent or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official (a) except as set forth
in the Parent’s filings of Forms 10K, 10Q or 8K on or before the date hereof or
as set forth in Schedule 5.05 (the “Existing Litigation”),
and except for shareholders’ derivative litigation or shareholders’ class
actions based on the same facts and circumstances as the Existing Litigation,
in which there is a reasonable possibility of an adverse decision which could,
based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect or (b) which in any manner draws into question
the validity or enforceability of any of the Financing Documents.


 


5.06        Compliance with ERISA.  Each member of the ERISA Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Code with respect to each
Plan and is in compliance, except where the failure to so comply could not,
based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect, with the presently applicable provisions of
ERISA and the Code with respect to each Plan. 
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed
to make any required contribution or payment to any Plan or Multiemployer Plan,
or made any amendment to any Plan, which has resulted in or could, based upon
the facts and circumstances in existence at the time this representation and
warranty is made or deemed made, reasonably be expected to result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Code or (iii) incurred any liability under Title IV of ERISA (other than a
liability to the PBGC for premiums under Section 4007 of ERISA), which
could, based upon the facts and circumstances existing at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect.


 


5.07        Environmental Matters.  In the ordinary course of its business, the Parent conducts an
ongoing review of the effect of Environmental Laws on the business, operations
and


 


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properties of the Parent and its Subsidiaries, in the course of which
it identifies and evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures required for clean-up
or closure of properties presently or previously owned, any capital or
operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in
the level of or change in the nature of operations conducted thereat, any costs
or liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses).  On the basis of this review, the Parent has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, could not, based upon the facts and circumstances
existing at the time this representation and warranty is made or deemed made,
reasonably be expected to have a Material Adverse Effect.


 


5.08        Insurance. 
The properties of each Principal Obligor and its Subsidiaries are
insured with financially sound and reputable insurance companies in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where such Principal Obligor or Subsidiary operates.


 


5.09        Taxes.  The Parent and its Significant Subsidiaries
have filed all material tax returns which are required to be filed by them and
have paid all taxes shown on such returns or pursuant to any material assessment
received by the Parent or any Significant Subsidiary, except those assessments
which are being contested in good faith by appropriate proceedings.  The charges, accruals and reserves on the
books of the Parent and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Parent, adequate.


 


5.10        Subsidiaries. 
Each of the Parent’s Consolidated Subsidiaries is duly organized or
formed, validly existing and (to the extent such concept is applicable to it)
in good standing under the laws of its jurisdiction of organization or
formation, except (i) where the failure to be so organized, existing or in good
standing could not, based upon the facts and circumstances existing at the time
this representation and warranty is made or deemed made, reasonably be expected
to have a Material Adverse Effect or (ii) as a result of a transaction
permitted by Section 6.10. 
Each such Subsidiary has all legal powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except to the extent that failure to have any such power or
governmental license, authorization, consent or approval could not, based upon
the facts and circumstances in existence at the time this representation and
warranty is made or deemed made, reasonably be expected to have a Material
Adverse Effect.


 


5.11        Not an Investment Company or Public
Utility Holding Company.  Neither Principal Obligor is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or a “holding company” or a “subsidiary company” of a “holding company”, or an
“affiliate” thereof, within the meaning of the Public Utility Holding Company
Act of 1935, as amended.


 


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5.12        Margin Regulations.  Neither
Principal Obligor is engaged principally or as one of its important activities
in the business of buying or carrying margin stock within the meaning of
Regulation U of the FRB, and no part of the proceeds of any extension of
credit hereunder will be used for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any such margin stock.


 


5.13        Full
Disclosure.  All information heretofore furnished by or
on behalf of the Obligors to the Paying Agent in connection with this Agreement
does not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading on the
date when made; provided that with respect to projections, the Principal
Obligors represent and warrant only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time made, it
being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond the control of the Principal Obligors
and that no assurance can be given that such projections will be realized.


 


5.14        Ownership of Property; Liens.  Each of the Parent and each Consolidated
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  The property of the
Parent and its Subsidiaries is subject to no Liens, other than Liens permitted
by Section 6.09.


 


5.15        Obligations to Be Pari Passu.  The obligations of each Principal Obligor
under this Agreement rank pari  passu as to priority of payment
and in all other respects with all other unsecured and unsubordinated
obligations of such Principal Obligor.


 


5.16        Tax Shelter Regulations.  Each Principal Obligor does not intend to treat the Loans as
being a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4).  In the event
such Principal Obligor determines to take any action inconsistent with such
intention, it will promptly notify the Paying Agent thereof.  If a Principal Obligor so notifies the
Paying Agent, such Principal Obligor acknowledges that one or more of the
Lenders may treat its Loans as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records required by such Treasury
Regulation.


 


ARTICLE VI.

COVENANTS


 


The Parent
agrees that so long as any Lender has any Commitment hereunder or any amount
payable under this Agreement or any Note remains unpaid:


 


6.01        Information. 
The Parent will deliver to the Paying Agent (which, except as otherwise
provided below with respect to subsections (a), (b), (e)
and (f), the Paying Agent shall promptly furnish to each Lender):


 


(a)           as soon as available and in any event within
120 days after the end of each fiscal year of the Parent, a consolidated
balance sheet of the Parent and its Consolidated Subsidiaries as


 


36

















 


of the end of such fiscal year and the related consolidated statements
of income, of shareholders’ equity and of cash flows for such fiscal year,
setting forth, in each case in comparative form, the figures for the previous
fiscal year, such consolidated statements to be reported on by
PricewaterhouseCoopers LLP or other independent public accountants of
internationally recognized standing in a manner complying with the applicable
rules and regulations promulgated by the SEC;


 


(b)           as soon as available and in any event within
60 days after the end of each of the first three quarters of each fiscal year
of the Parent, a consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such quarter, the related consolidated statements
of income for such quarter, and the related consolidated statements of income
and cash flows for the portion of the Parent’s fiscal year ended at the end of
such quarter, setting forth in the case of such statements of income and of
cash flows in comparative form the figures for the corresponding quarter (in
the case of consolidated statements of income) and for the corresponding
portion of the Parent’s previous fiscal year, all certified (subject to the
absence of footnotes, audit and normal year-end adjustments) as to GAAP on
behalf of the Parent by the chief financial officer or the chief accounting
officer of the Parent or a Designated Officer;


 


(c)           simultaneously with the delivery of each set
of financial statements referred to in subsections (a) and (b) above, a
certificate on behalf of the Parent signed by the chief financial officer or
the chief accounting officer of the Parent or a Designated Officer (i) setting
forth in reasonable detail the calculations required to establish whether the
Parent was in compliance with the requirements of Sections 6.08, 6.09,
6.12 and 6.13 on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth, in reasonable detail, the nature thereof
and the action which the Parent is taking or proposes to take with respect
thereto;


 


(d)           within five Business Days after any
Responsible Officer obtains knowledge of any Default, if such Default is then
continuing, a certificate on behalf of the Parent signed by a Responsible
Officer of the Parent or a Designated Officer setting forth, in reasonable
detail, the nature thereof and the action which the Parent is taking or
proposes to take with respect thereto;


 


(e)           promptly following the mailing thereof to
the shareholders of the Parent generally, copies of all financial statements,
reports and proxy statements so mailed;


 


(f)            promptly upon the filing thereof, copies of
all final registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and final reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Parent or the
Borrower shall have filed with the SEC;


 


(g)           promptly upon any Responsible Officer
obtaining knowledge of the commencement of any action, suit or proceeding or
investigation before any court, arbitrator or other governmental body against
the Parent or any of its Subsidiaries that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, a certificate on
behalf of the Parent specifying the nature of such action, suit or proceeding
and what action the Parent is taking or proposes to take with respect thereto;


 


37

















 


(h)           promptly following, and in any event within
10 days of, any change in the Moody’s Rating or the S&P Rating, notice
thereof; and


 


(i)            from time to time, upon reasonable notice,
such additional information regarding the financial position or business of the
Parent and its Subsidiaries as the Paying Agent, at the request of any Lender,
may reasonably request.


 


Information required to be delivered pursuant to subsections (a), (b),
(e) or (f) above shall be deemed to have been delivered on the date on which
the Parent provides notice to the Paying Agent that such information has been
posted on the Parent’s website on the Internet at the website address listed in
Schedule 10.02, at sec.gov/edaux/searches.htm or at another website
identified in such notice and accessible by the Lenders without charge; provided  that (i) such notice may be
included in a certificate delivered pursuant to subsection 6.01(c)
and (ii) the Parent shall deliver paper copies of the information referred to
in subsections (a), (b), (e) or (f) to any Lender which
requests such delivery.


 


6.02        Payment of Obligations.  The Parent will pay and discharge, and will cause each Subsidiary
to pay and discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax liabilities,
except where (i) any such failure to so pay or discharge could not, based upon
the facts and circumstances in existence at the time, reasonably be expected to
have a Material Adverse Effect or (ii) such liabilities or obligations may be
contested in good faith by appropriate proceedings.  The Parent will maintain, and will cause each Subsidiary to
maintain, in accordance with GAAP, appropriate reserves for the accrual of any
of such liabilities or obligations.


 


6.03        Maintenance of Property; Insurance.


 


(a)           Except as permitted by Section 6.04,
the Parent will keep, and will cause each Subsidiary to keep, all property
necessary in its business in good working order and condition, ordinary wear
and tear excepted, unless the failure to do so could not, based upon the facts
and circumstances existing at the time, reasonably be expected to have a
Material Adverse Effect.


 


(b)           The Parent will
maintain, and will cause each Subsidiary to maintain, with financially sound
and reputable insurers, insurance with respect to its assets and business
against such casualties and contingencies, of such types (including, without
limitation, loss or damage, product liability, business interruption, larceny,
embezzlement or other criminal misappropriation) and in such amounts as is
customary in the case of similarly situated corporations of established
reputations engaged in the same or a similar business, unless the failure to
maintain such insurance could not, based upon the facts and circumstances
existing at the time, reasonably be expected to have a Material Adverse Effect.


 


6.04        Conduct of Business and Maintenance of
Existence.  The Parent will:


 


(a)           not engage in any
material business other than the holding of stock and other investments in its
Subsidiaries and activities reasonably related thereto,


 


(b)           cause each Significant
Subsidiary to engage in business of the same general type as now conducted by
the Parent’s Significant Subsidiaries and reasonably related extensions
thereof, and


 


38

















 


(c)           preserve, renew and
keep in full force and effect, and will cause each Significant Subsidiary to
preserve, renew and keep in full force and effect (i) their respective legal
existence and (ii) their respective rights, privileges and franchises necessary
or desirable in the normal conduct of business, unless in the case of either
the failure of the Parent to comply with subclause (c) (ii) of this Section 6.04
or the failure of a Significant Subsidiary to comply with clause (b) or (c) of
this Section 6.04, such failure could not, based upon the facts and
circumstances existing at the time, reasonably be expected to have a Material
Adverse Effect;


 


provided  that
nothing in this Section 6.04 shall prohibit (A) the merger or
consolidation of a Subsidiary (other than the Borrower) with or into the Parent
or a Wholly-Owned Consolidated Subsidiary, (B) the merger or consolidation of a
Significant Subsidiary (other than the Borrower) with or into a Person other
than the Parent or a Wholly-Owned Consolidated Subsidiary, if the Person
surviving such consolidation or merger is a Subsidiary and immediately after
giving effect thereto, no Default shall have occurred and be continuing, (C)
any transaction permitted pursuant to Section 6.10 or (D) the termination
of the legal existence of any Significant Subsidiary (other than the Borrower
or any Subsidiary Guarantor, except in connection with a transaction permitted
under Section 6.10, if a successor has assumed its obligations
hereunder and under the other Financing Documents as contemplated thereby) if
the Parent in good faith determines that such termination is in the best
interest of the Parent and is not materially disadvantageous to the Lenders.


 


6.05        Compliance with Laws.  The Parent
will comply, and will cause each Significant Subsidiary to comply, in all
material respects with all applicable Laws and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where (a) noncompliance therewith
could not, based upon the facts and circumstances in existence at the time,
reasonably be expected to have a Material Adverse Effect or (b) the necessity
of compliance therewith is contested in good faith by appropriate proceedings.


 


6.06        Inspection of Property, Books and Records.


 


(a)           The Parent will keep, and will cause each
Consolidated Subsidiary to keep, proper books of record and account in which
true and correct entries shall be made of its business transactions and
activities so that financial statements that fairly present its business
transactions and activities can be properly prepared in accordance with GAAP.


 


(b)           The Parent will permit,
and will cause each Significant Subsidiary to permit, representatives of any
Lender at such Lender’s expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all
upon reasonable notice to the Parent, at such reasonable times and as often as
may reasonably be requested by any Lender.


 


6.07        Limitation on Restrictions on
Subsidiary Dividends and Other Distributions.  The Parent will not, and will not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a) pay dividends or make any other distributions on its capital stock


 


39

















 


or any other interest or participation in its profits, owned by the
Parent or any Subsidiary, or pay any Debt owed by any Subsidiary to the Parent
or any Subsidiary, (b) make loans or advances to the Parent or any Subsidiary
or (c) transfer any of its properties or assets to the Parent or any
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of:


 


(i)            applicable Law, agreements with foreign
governments with respect to assets located in their jurisdiction, or
condemnation or eminent domain proceedings,


 


(ii)           any of the Financing Documents,


 


(iii)          (A) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Parent or a Subsidiary, or (B) customary restrictions imposed on the transfer
of trademarked, copyrighted or patented materials or provisions in agreements
that restrict the assignment of such agreements or any rights thereunder,


 


(iv)          provisions contained in the instruments
evidencing or governing Debt or other obligations or agreements, in each case
existing on the date hereof,


 


(v)           provisions contained in documents evidencing
or governing any Permitted Securitization Transaction,


 


(vi)          provisions contained in instruments
evidencing or governing Debt or other obligations or agreements of any Person,
in each case, at the time such Person (A) shall be merged or consolidated with
or into the Parent or any Subsidiary, (B) shall sell, transfer, assign, lease
or otherwise dispose of all or substantially all of such Person’s assets to the
Parent or a Subsidiary, or (C) otherwise becomes a Subsidiary, provided  that in the case of clause
(A), (B) or (C), such Debt, obligation or agreement was not incurred or entered
into, or any such provisions adopted, in contemplation of such transaction,


 


(vii)         provisions contained in Refinancings, so long
as such provisions are, in the good faith determination of the Parent’s board
of directors, not materially more restrictive than those contained in the
respective instruments so Refinanced,


 


(viii)        provisions contained in any instrument
evidencing or governing Debt or other obligations of a Subsidiary Guarantor,


 


(ix)           any encumbrances and restrictions with
respect to a Subsidiary imposed in connection with an agreement which has been
entered into for the sale or disposition of such Subsidiary or its assets, provided  such sale or disposition
otherwise complies with this Agreement,


 


(x)            the subordination (pursuant to its terms)
in right and priority of payment of any Debt owed by any Subsidiary (the “Indebted
Subsidiary”) to the Parent or any other Subsidiary, to any other Debt of
such Indebted Subsidiary, provided  that (A) such Debt is permitted under
this Agreement and (B) the Parent’s board of directors has determined, in good
faith, at the time of the creation of such encumbrance or restriction, that
such encumbrance or restriction could not, based upon the facts and
circumstances in existence at the time, reasonably be expected to have a
Material Adverse Effect,


 


40

















 


(xi)           provisions governing Preferred Stock issued
by a Subsidiary, provided  that
such Preferred Stock is permitted under Section 6.08, and


 


(xii)          provisions contained in debt instruments,
obligations or other agreements of any Subsidiary which are not otherwise
permitted pursuant to clauses (i) through (xi) of this Section 6.07,
provided  that
the aggregate investment of the Parent in all such Subsidiaries (determined in
accordance with GAAP) shall at no time exceed the greater of (a) $300,000,000
or (b) 3% of Consolidated Tangible Assets.


 


The provisions of this Section 6.07 shall not prohibit (x)
Liens not prohibited by Section 6.09 or (y) restrictions on the
sale or other disposition of any property securing Debt of any Subsidiary, provided  such Debt is otherwise
permitted by this Agreement.


 


6.08        Total Debt. 
The Parent will not at any time permit the aggregate outstanding principal
amount of Debt of the Consolidated Subsidiaries to exceed an amount equal to 5%
of Consolidated Tangible Assets at such time, provided that for purposes
of this Section 6.08, “Debt” (A) shall not include (i) Permitted
Acquired Debt of any Consolidated Subsidiary, (ii) Debt of any
Consolidated Subsidiary (other than the Borrower) outstanding as of the Closing
Date, and any Refinancings thereof or (iii) Debt of the Borrower and (B)
shall include any Preferred Stock of a Consolidated Subsidiary, valued at the
higher of its voluntary or involuntary liquidation value, held by a Person
other than the Parent or a Wholly-Owned Consolidated Subsidiary.


 


6.09        Restrictions on Liens.  The Parent will not, and will not permit any Subsidiary to,
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:


 


(a)           any
Lien existing on any asset on the date hereof securing Debt outstanding on such
date;


 


(b)           any
Lien existing on any asset of, or Stock of any Person at the time such Person
becomes a Subsidiary, which Lien was not created in contemplation of such
event;


 


(c)           any
Lien on any asset securing the payment of all or part of the purchase price of
such asset upon the acquisition thereof by the Parent or a Subsidiary or
securing Debt (including any obligation as lessee incurred under a capital
lease) incurred or assumed by the Parent or a Subsidiary prior to, at the time
of or within one year after such acquisition (or in the case of real property,
the completion of construction (including any improvements on an existing
property) or the commencement of full operation of such asset or property,
whichever is later), which Debt is incurred or assumed for the purpose of
financing all or part of the cost of acquiring such asset or, in the case of
real property, construction or improvements thereon; provided, that in the case of any such
acquisition, construction or improvement, the Lien shall not apply to any asset
theretofore owned by the Parent or a Subsidiary, other than assets so acquired,
constructed or improved;


 


(d)           any
Lien existing on any asset or Stock of any Person at the time such Person is
merged or consolidated with or into the Parent or a Subsidiary which Lien was
not created in contemplation of such event;


 


41

















 


(e)           any Lien existing on any asset or Stock of
any Person at the time of acquisition thereof by the Parent or a Subsidiary,
which Lien was not created in contemplation of such acquisition;


 


(f)            any Lien arising out of the Refinancing of
any Debt secured by any Lien permitted by any of the subsections (a) through
(e) of this Section 6.09, provided  that the principal amount of Debt is
not increased and is not secured by any additional assets, except as provided
in the last sentence of this Section 6.09;


 


(g)           any Lien to secure Debt of a Subsidiary to
the Parent or to a Wholly-Owned Consolidated Subsidiary;


 


(h)           any Lien created pursuant to a Permitted
Securitization Transaction;


 


(i)            any Lien in favor of any country (or any
department, agency, instrumentality or political subdivision of any country)
securing obligations arising in connection with partial, progress, advance or
other payments pursuant to any contract, statute, rule or regulation or
securing obligations incurred for the purpose of financing all or any part of
the purchase price (including the cost of installation thereof or, in the case
of real property, the cost of construction or improvement or installation of
personal property thereon) of the asset subject to such Lien (including, but
not limited to, any Lien incurred in connection with pollution control,
industrial revenue or similar financings);


 


(j)            Liens arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not secure any single obligation
in an amount exceeding $25,000,000 and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in
the operation of its business;


 


(k)           Liens incurred and pledges or deposits in
the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;


 


(l)            Liens for taxes, assessments and
governmental charges or levies which are not yet due or are payable without
penalty or of which the amount, applicability or validity is being contested by
the Parent or a Subsidiary whose property is subject thereto in good faith by
appropriate proceedings as to which adequate reserves are being maintained; and


 


(m)          Liens not otherwise permitted by the
foregoing clauses (a) through (j) of this Section 6.09 securing
Debt or other obligations (without duplication) in an aggregate principal
amount at any time outstanding not to exceed an amount equal to 5% of
Consolidated Tangible Assets at such time.


 


It is
understood that any Lien permitted to exist on any asset pursuant to the
foregoing provisions of this Section 6.09 may attach to the
proceeds of such asset and, with respect to Liens permitted pursuant to
subsections (a), (b), (d), (e), (f) (but only with respect to the Refinancing
of a Debt secured by a Lien permitted pursuant to subsections (a), (b), (d) or
(e)) or (g) of this Section 6.09, may attach to an asset acquired
in the ordinary course of business as a replacement of such former asset.


 


42

















 


6.10        Consolidations, Mergers and Sales of Assets.


 


(a)           No Principal Obligor will consolidate,
amalgamate or merge with or into any other Person or sell, lease or otherwise
transfer all or substantially all of its assets to any other Person, unless


 


(i)            such Principal Obligor or one of its
Subsidiaries is the surviving corporation, or the Person (if other than such
Principal Obligor) formed by such consolidation or amalgamation or into which
such Principal Obligor is merged or amalgamated, or the Person which acquires
by sale or other transfer, or which leases, all or substantially all of the
assets of such Principal Obligor (any such Person, the “Successor”), shall
be organized and existing under the laws of (A) in the case of a Successor to
the Borrower, Luxembourg or the United States, any state thereof or the
District of Columbia or (B) in the case of a Successor to the Parent, Bermuda
or of the United States, any state thereof or the District of Columbia and
shall expressly assume, in a writing executed and delivered to the Paying Agent
for delivery to each of the Lenders, in form reasonably satisfactory to the
Required Lenders, the due and punctual payment of the principal of and interest
on the Loans and the performance of the other obligations under this Agreement
and the Notes on the part of such Principal Obligor to be performed or
observed, as fully as if such Successor were originally named as such Principal
Obligor in this Agreement; and


 


(ii)           immediately after giving effect to such
transaction, no Default shall have occurred and be continuing; and


 


(iii)          such Principal Obligor has delivered to the
Paying Agent a certificate on behalf of such Principal Obligor signed by one of
its Responsible Officers and an opinion of counsel, each stating that all
conditions provided in this Section 6.10 relating to such
transaction have been satisfied.


 


(b)           Neither Section 6.10(a)
nor any other provision of any of the Financing Documents shall be deemed to
prohibit the reincorporation or domestication into the United States of the
Parent and/or the Borrower, whether under Section 388 of the Delaware
General Corporation Law, through merger or consolidation or transfer of assets
or in such other manner as may be satisfactory to the Required Lenders, provided
that (I) prior to the consummation of such transaction the Paying Agent shall
have received each of the following: 
(x) evidence in form and substance reasonably satisfactory to the
Required Lenders, of its continued existence and continuing liability for its
obligations under the Financing Documents or the corporate existence and good
standing of the successor entity and of its power and authorization to assume
the obligations of the Parent and/or the Borrower, as the case may be, under
the Financing Documents, (y) if requested by the Paying Agent,
documentation in form and substance reasonably satisfactory to the Required
Lenders, pursuant to which such successor entity assumes and agrees to pay and
perform the obligations of the Parent and/or the Borrower, as the case may be,
under the Financing Documents, and (z) legal opinions in form and
substance reasonably satisfactory to the Required Lenders with respect to the transactions
effecting such reincorporation, domestication and/or assumption,
(II) after giving effect to such reincorporation, domestication and/or
assumption, (x) the Parent or its successor entity continues to own and


 


43

















 


control the Borrower or its successor entity, (y) the Required
Lenders are satisfied that such successor entity is of comparable credit
quality to the Parent and/or the Borrower, as the case may be, and (z) no
Default or Event of Default has occurred and is continuing either before or
immediately after the consummation of such reincorporation, domestication
and/or assumption.


 


(c)           Neither Section 6.10(a)
nor any other provision of any of the Financing Documents shall be deemed to
prohibit the conversion or merger of the Borrower into a Luxembourg partnership
or other legal entity organized under Luxembourg law, provided that each
of the conditions and requirements set forth in Section 6.10(b)
shall also apply to such conversion or merger.


 


(d)           Upon the satisfaction
(or waiver in accordance with Section 10.01) of the conditions set
forth in this Section 6.10, a Successor (or other successor
referred to in Section 6.10(b)) to the Borrower or the Parent shall
succeed, and may exercise every right and power of, the Borrower or the Parent
under this Agreement and the Notes and the other Financing Documents with the
same effect as if such Successor (or other successor referred to in
Section 6.10(b)) had been originally named as the Borrower or the Parent
herein and in the Notes and any other Financing Documents, and the Borrower or
the Parent, as the case may be, shall be relieved of and released from its
obligations under this Agreement and the Notes and the other Financing
Documents.


 


6.11        Transactions with Affiliates.  The Parent will not, and will not permit any
Subsidiary to, directly or indirectly, pay any funds to or for the account of,
make any investment (whether by acquisition of Stock or indebtedness, by loan,
advance, transfer of property, guarantee or other agreement to pay, purchase or
service, directly or indirectly, any Debt, or otherwise) in, lease, sell,
transfer or otherwise dispose of any assets, tangible or intangible, to, or
participate in, or effect any transaction in connection with any joint
enterprise or other joint arrangement with, any Affiliate (collectively, “Affiliate Transactions”);  provided, however, that the foregoing
provisions of this Section 6.11 shall not prohibit the Parent or
any of its Subsidiaries from:


 


(a)           making Restricted Payments (including, for
this purpose, transactions expressly excluded from the definition of a
Restricted Payment) permitted by Section 6.12,


 


(b)           making sales to or purchases from any
Affiliate and, in connection therewith, extending credit or making payments, or
from making payments for services rendered by any Affiliate, if such sales or
purchases are made or such services are rendered in the ordinary course of
business and on terms and conditions at least as favorable to the Parent or such
Subsidiary as the terms and conditions which the Parent would reasonably expect
to be obtained in a similar transaction with a Person which is not an Affiliate
at such time,


 


(c)           making payments of principal, interest and
premium on any Debt of the Parent or such Subsidiary held by an Affiliate if
the terms of such Debt are at least as favorable to the Parent or such
Subsidiary as the terms which the Parent would


 


44

















 


reasonably expect to have been obtained at the time of the creation of
such Debt from a lender which was not an Affiliate,


 


(d)           participating in, or effecting any
transaction in connection with, any joint enterprise or other joint arrangement
with any Affiliate if the Parent or such Subsidiary participates in the
ordinary course of its business and on a basis no less advantageous than the
basis on which such Affiliate participates,


 


(e)           paying or granting reasonable compensation
and benefits to any director, officer, employee or agent of the Parent or any
Subsidiary, or


 


(f)            engaging in any Affiliate Transaction not
otherwise addressed in subsections (a) through (e) of this Section 6.11, the terms of which are not
less favorable to the Parent or such Subsidiary than those that the Parent or
such Subsidiary would reasonably expect to be obtained in a comparable
transaction at such time with a Person which is not an Affiliate.


 


6.12        Restricted Payments.  The Parent
will not, and will not permit any Subsidiary to, declare or make any Restricted
Payment unless, after giving effect thereto, the aggregate of all Restricted
Payments declared or made after September 30, 2003 does not exceed an
amount equal to the sum of (a) $4,800,000,000 plus (b) an amount equal to
50% of Consolidated Net Income, if positive (or an amount equal to 100% of
Consolidated Net Income, if negative for such period) for the period from
October 1, 2003 through the end of the then most recently ended fiscal
quarter of the Parent (treated for this purpose as a single accounting period),
plus (c)
the aggregate cash proceeds (net of underwriting commissions) received by the
Parent (other than from a Subsidiary) from the issuance or sale after
September 30, 2003 of Stock or Stock Equivalents of the Parent (other than
the proceeds of any Stock or Stock Equivalent which by its terms is subject to
redemption otherwise than at the sole option of the Parent); provided,
that nothing in this Section 6.12 shall prohibit (i) a Subsidiary from
making Restricted Payments to the Parent or to any other Subsidiary or (ii) the
payment of any dividend or distribution within 60 days after the declaration
thereof if such declaration was not prohibited by this Section 6.12.


 


6.13        Financial Covenants.


 


(a)           Consolidated Net
Worth.  The Parent will not permit
Consolidated Net Worth as of the last day of any fiscal quarter to be less than
the sum of (a) $21,000,000,000 plus (b) an aggregate amount equal to 50%
of its Consolidated Net Income (but in each case only if a positive number) for
each completed fiscal quarter beginning with the period from October 1,
2003 through the end of the then most recently ended fiscal quarter of the
Parent (treated for this purpose as a single accounting period) plus (c) an amount equal to 100% of the
net proceeds of any issuance by the Parent after the date hereof of Stock or
Stock Equivalents.


 


(b)           Consolidated
Leverage Ratio.  The Parent will not
permit the Consolidated Leverage Ratio at any time to be greater than 3.5 to
1.0.


 


6.14        Subsidiary Guarantors.  The Borrower will cause each Subsidiary of the Borrower that now
or hereafter Guarantees any Material Debt of the Borrower for or in respect of
borrowed money (other than Debt of the Borrower to any other Subsidiary) to
promptly


 


45

















 


thereafter (and in any event within 30 days of executing such
Guarantee) cause such Subsidiary to (a) become a Subsidiary Guarantor by
executing and delivering to the Paying Agent a Subsidiary Guaranty, and (b)
deliver to the Paying Agent documents of the types referred to in clause (iii)
of Section 4.01(a) and favorable opinions of counsel to such
Subsidiary (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the Subsidiary Guaranty of such Subsidiary),
all in form, content and scope reasonably satisfactory to the Paying Agent.


 


6.15        Use
of Proceeds.  The proceeds of each Borrowing made under
this Agreement will be used by the Borrower for the purpose of refinancing
existing Debt, working capital, the making of capital expenditures and other
lawful corporate purposes.  None of such
proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any “margin stock”
within the meaning of Regulation U of the FRB.


 


ARTICLE VII.

EVENTS OF DEFAULT AND REMEDIES


 


7.01        Events
of Default.  Any of the following events, if not waived
pursuant to Section 10.01, shall constitute an Event of Default:


 


(a)           any principal of any Loan shall not be paid
when due, or any interest, any fees or any other amount payable hereunder shall
not be paid within three Business Days of the due date thereof;


 


(b)           the Parent shall fail to observe or perform
any covenant contained in Section 6.08, 6.12 or 6.13;


 


(c)           the Parent shall fail to observe or perform
any covenant contained in Section 6.07 or Sections 6.09 to 6.11,
inclusive, and such failure shall not be remedied within five days after any
Responsible Officer obtains actual knowledge thereof;


 


(d)           either Principal Obligor shall fail to
observe or perform any covenant or agreement contained in this Agreement (other
than those covered by clause (a), (b) or (c) of this Section 7.01)
for 10 days after notice thereof has been given to the Parent by the Paying
Agent at the request of any Lender;


 


(e)           any representation, warranty, certification
or statement made in writing by any Obligor in the Financing Documents or in
any certificate, financial statement or other document required to be delivered
to the Paying Agent or any of the Lenders pursuant to the Financing Documents
shall prove to have been incorrect in any material respect when made (or deemed
made);


 


(f)            the Parent or any Subsidiary shall fail to
make any payment when due (whether at scheduled maturity, by mandatory prepayment,
by acceleration or otherwise) in respect of any Material Debt (after giving
effect to any applicable grace period);


 


(g)           any event or condition shall occur that
results in the acceleration of the maturity of, including a requirement for
mandatory prepayment of, any Material Debt;


 


46

















 


(h)           except in connection with a transaction
permitted by Section 6.10 or in connection with a scheme of
arrangement pursuant to which any of the direct shareholders of the Parent
become indirect shareholders thereof through a newly established holding
company, (i) any corporate action is taken authorizing the winding up,
liquidation, any arrangement or the taking of any other similar action of or
with respect to the Parent or authorizing any corporate action to be taken to
facilitate any such winding up, liquidation, arrangement, reorganization or
amalgamation or other similar action or any members’ voluntary winding up of
the Parent as provided under the Bermuda Companies Law shall be commenced;


 


(ii)           (A) any petition shall be filed seeking the
liquidation, any arrangement or the taking of any other similar action of or
with respect to the Parent by the Registrar of Companies in Bermuda, or by any
other Person or Persons, or (B) any petition shall be presented for the winding
up of the Parent to a court of Bermuda as provided with the Bermuda Companies
Law, or (C) any creditors’ winding up of the Parent as provided under the
Bermuda Companies Law shall be commenced, or (D) any receiver shall be
appointed by a creditor of the Parent or by a court of Bermuda on the
application of a creditor of the Parent as provided under any instrument giving
rights for the appointment of a receiver thereto, and in the case of any such petition,
winding up, appointment, order or other matter, such petition, winding up,
appointment, order or other matter, shall remain undismissed and unstayed for a
period of 60 days;


 


(iii)          the Parent or any Significant Subsidiary
shall (A) commence a voluntary case or other proceeding seeking liquidation,
winding up, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or substantially all of its property, or (B)
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other similar proceeding commenced
against it, or (C) make a general assignment for the benefit of creditors, or
(D) fail generally to pay its debts as they become due, or (E) take any
corporate action to authorize any of the foregoing; or


 


(iv)          (A) an involuntary case or other proceeding
shall be commenced against the Parent or any Significant Subsidiary seeking
liquidation, winding up, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or substantially all of
its property, and such involuntary case or other proceeding shall remain in
effect and undismissed and unstayed for a period of 60 days; or (B) an order
for relief shall be entered against the Parent or any Significant Subsidiary
under the bankruptcy laws of any jurisdiction as now or hereafter in effect;


 


(i)            a judgment or order for the payment of
money in excess of $30,000,000 (after deducting amounts covered by insurance,
except to the extent that the insurer providing such insurance has declined
such coverage or indemnification) shall be rendered against the Parent or any
Subsidiary and, within 60 days after entry thereof, such judgment or order is
not discharged or execution thereof stayed pending appeal, or within 60 days
after the expiration of any such stay, such judgment or order is not
discharged;


 


47

















 


(j)            (x) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 40% or more of the outstanding
shares of common stock of the Parent; or (y) on the last day of any period
of twelve consecutive calendar months, a majority of members of the board of
directors of the Parent shall no longer be composed of individuals (i) who were
members of said board of directors on the first day of such twelve consecutive
calendar month period or (ii) whose election or nomination to said board of
directors was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
said board of directors, provided that this clause (y) shall not be
deemed to apply with respect to any Persons who were members of said board of
directors prior to September 30, 2003; and provided, further, that this
clause (j) shall not be deemed to apply to a transaction, entered into as part
of a transaction described in Section 6.10(b), pursuant to which any of
the direct shareholders of the Parent become the indirect shareholders thereof
through a newly established holding company;


 


(k)           the Parent or any Subsidiary shall fail to
pay when due any amount owing by it in respect of any performance bond,
performance guaranty or bank guaranty issued in lieu of a performance bond or
performance guaranty (other than a payment which is disputed by the Parent or
such Subsidiary in good faith), and the aggregate of all such defaulted
payments shall exceed $50,000,000 at any one time for the Parent and its
Subsidiaries;


 


(l)            any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of $5,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $25,000,000;


 


(m)          the Borrower shall cease to be a Wholly-Owned
Consolidated Subsidiary of the Parent; or


 


(n)           any Financing Document shall cease to be
valid and enforceable against any Obligor party thereto (except for the
termination of a Subsidiary Guaranty in accordance with its terms), or any
Obligor shall so assert in writing.


 


7.02        Remedies Upon Event of Default.  If any Event of Default occurs and is
continuing, the Paying Agent shall, at the request of, or may, with the consent
of, the Required Lenders, take any or all of the following actions:


 


(a)           declare the commitment of each Lender to
make Loans to be terminated, whereupon such commitments shall be terminated;


 


48

















 


(b)           declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Financing Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower; and


 


(c)           exercise on behalf of itself and the Lenders
all rights and remedies available to it and the Lenders under the Financing
Documents or applicable law;


 


provided, however, that in the case of
any of the Events of Default specified in Section 7.01(h), the
obligation of each Lender to make Loans shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, in each case
without further act of the Paying Agent or any Lender.


 


7.03        Application of Funds.  After the
exercise of remedies provided for in Section 7.02 (or after the
Loans have automatically become immediately due and payable as set forth in the
proviso to Section 7.02), any amounts received on account of the
Obligations shall be applied by the Paying Agent in the following order:


 


First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including reasonable Attorney Costs and amounts payable under Article III)
payable to the Paying Agent in its capacity as such;


 


Second, to payment
of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
reasonable Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest on the
Loans, ratably among the Lenders in proportion to the respective amounts
described in this clause Third payable to them;


 


Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans,
ratably among the Lenders in proportion to the respective amounts described in
this clause Fourth held by them;


 


Fifth, to the
payment of all other Obligations of the Obligors owing under or in respect of
the Financing Documents that are due and payable to the Paying Agent and the
Lenders on such date, ratably based upon the respective aggregate amounts of
all such Obligations owing to the Paying Agent and the Lenders on such date;
and


 


Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrower or as otherwise required by Law.


 


49

















 


ARTICLE VIII.

PAYING AGENT


 


8.01        Appointment and Authorization of
Paying Agent.  Each Lender hereby irrevocably appoints,
designates and authorizes the Paying Agent to take such action on its behalf
under the provisions of this Agreement and each other Financing Document and to
exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Financing Document, together with
such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Financing Document, the Paying Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Paying Agent have or be deemed to have any fiduciary relationship with any
Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Financing Document or otherwise exist against the Paying Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other
Financing Documents with reference to the Paying Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.


 


8.02        Delegation of Duties.  The Paying
Agent may execute any of its duties under this Agreement or any other Financing
Document by or through agents, employees or attorneys-in-fact and shall be entitled
to advice of counsel and other consultants or experts concerning all matters
pertaining to such duties.  The Paying
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 


8.03        Liability of Paying Agent.  No Agent-Related Person shall (a) be liable for any action taken
or omitted to be taken by any of them under or in connection with this
Agreement or any other Financing Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct in connection
with its duties expressly set forth herein), or (b) be responsible in any
manner to any Lender or participant for any recital, statement, representation
or warranty made by any Obligor or any officer thereof, contained herein or in
any other Financing Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Paying Agent under
or in connection with, this Agreement or any other Financing Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Financing Document, or for any failure of any Obligor or
any other party to any Financing Document to perform its obligations hereunder
or thereunder.  No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Financing Document, or to
inspect the properties, books or records of any Obligor or any Affiliate
thereof.


 


8.04        Reliance by Paying Agent.


 


(a)           The Paying Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,


 


50

















 


certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Obligor), independent accountants and other
experts selected by the Paying Agent. 
The Paying Agent shall be fully justified in failing or refusing to take
any action under any Financing Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.  The Paying Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Financing Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of
determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Paying Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection
thereto.


 


8.05        Notice
of Default.  The Paying Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Paying Agent for the account of the Lenders, unless the Paying Agent shall
have received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a “notice of
default.”  The Paying Agent will notify
the Lenders of its receipt of any such notice. 
The Paying Agent shall take such action with respect to such Default as
may be directed by the Required Lenders in accordance with Article VII;
provided, however, that unless and until the Paying Agent has
received any such direction, the Paying Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable or in the best interest of the Lenders.


 


8.06        Credit Decision; Disclosure of
Information by Paying Agent.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by the Paying Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Obligor or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession.  Each Lender represents to
the Paying Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Obligors and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. 
Each Lender also represents that it will, independently


 


51

















 


and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Financing Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Obligors.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Paying Agent
herein, the Paying Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Obligors or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.


 


8.07        Indemnification of Paying Agent.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of any Obligor
and without limiting the obligation of any Obligor to do so), pro rata, and
hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that
no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. 
Without limitation of the foregoing, each Lender shall reimburse the
Paying Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by the Paying Agent in connection
with the preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Financing Document, or any document contemplated by or
referred to herein, to the extent that the Paying Agent is not reimbursed for
such expenses by or on behalf of the Borrower. 
The undertaking in this Section shall survive termination of the
Commitments, the payment of all other Obligations and the resignation of the
Paying Agent.


 


8.08        Paying Agent in its Individual
Capacity.  Bank of America and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Obligors
and their respective Affiliates as though Bank of America were not the Paying
Agent hereunder and without notice to or consent of the Lenders.  The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
any Obligor or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Obligor or such Affiliate) and
acknowledge that the Paying Agent shall be under no obligation to provide such
information to them.  With respect to
its Loans Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Paying Agent, and the term “Lender” includes Bank of America in
its individual capacity.


 


52

















 


8.09        Successor Paying Agent.  The Paying Agent may resign as Paying Agent upon 30 days’ notice
to the Lenders and the Borrower.  If the
Paying Agent resigns under this Agreement, the Required Lenders shall appoint
from among the Lenders a successor Paying Agent for the Lenders, which
successor Paying Agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed).  If no successor Paying Agent is appointed prior to the effective
date of the resignation of the Paying Agent, the Paying Agent may appoint,
after consulting with the Lenders and the Borrower, a successor Paying Agent
from among the Lenders.  Upon the
acceptance of its appointment as successor Paying Agent hereunder, the Person
acting as such successor Paying Agent shall succeed to all the rights, powers
and duties of the retiring Paying Agent and the term “Paying Agent,” shall mean
such successor Paying Agent and the retiring Paying Agent’s appointment, powers
and duties as Paying Agent shall be terminated, without any other or further
act or deed on the part of any other Lender. 
After any retiring Paying Agent’s resignation hereunder as Paying Agent,
the provisions of this Article VIII and Sections 10.04
and 10.05 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Paying Agent under this Agreement.  If no successor Paying Agent has accepted
appointment as Paying Agent by the date which is 30 days following a retiring
Paying Agent’s notice of resignation, the retiring Paying Agent’s resignation
shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Paying Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.


 


8.10        Paying Agent May File Proofs of
Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Obligor, the Paying
Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Paying Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)           to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in respect of the Loans
and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders and the Paying Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Paying Agent and their respective agents and counsel and all other amounts due
the Lenders and the Paying Agent under Sections 2.03(i) and (j), 2.07
and 10.04) allowed in such judicial proceeding; and


 


(b)           to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender to make such payments to the Paying Agent and,
in the event that the Paying Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Paying Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Paying
Agent and its agents and counsel, and any other amounts due the Paying Agent
under Sections 2.07 and 10.04.


 


53

















 


Nothing
contained herein shall be deemed to authorize the Paying Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Paying Agent to vote in respect of the claim
of any Lender in any such proceeding.


 


8.11        Guaranty
Matters.  The Lenders irrevocably authorize the Paying
Agent, at its option and in its discretion, to release any Subsidiary Guarantor
from its obligations under such Subsidiary Guarantor’s Subsidiary Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.  Upon request by the Paying Agent at any
time, the Required Lenders will confirm in writing the Paying Agent’s authority
to release any Guarantor from its obligations under the Guaranty pursuant to
this Section 8.11.


 


8.12        Other Agents; Arrangers and Managers.  None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
“Co-Administrative Agent”, “Co-Documentation Agent”, “Co-Syndication Agent,”
“Joint Lead Arranger” or “Joint Bookrunner” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


ARTICLE IX.

GUARANTEE


 


9.01        The
Guarantee.  The Parent hereby unconditionally guarantees
the full and punctual payment when due (whether at stated maturity, by
mandatory prepayment, by acceleration or otherwise) of the principal of and
interest on the Loans, the Notes and all other amounts whatsoever at any time
or from time to time payable or becoming payable under any of the Financing
Documents.  This is a continuing
guarantee and a guarantee of payment and not merely of collection.  Upon failure by the Borrower to pay
punctually any such amount when due as aforesaid, the Parent shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
the applicable Financing Document.


 


9.02        Guarantee Unconditional.  The obligations of the Parent hereunder shall be unconditional
and absolute, and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected, at any time by:


 


(i)            any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under any
Financing Document, by operation of law or otherwise;


 


(ii)           any modification or amendment of or
supplement to any Financing Document;


 


(iii)          any release, impairment, non-perfection or
invalidity of any direct or indirect security for any obligation of the
Borrower under any Financing Document;


 


54

















 


(iv)          any change in the corporate existence,
structure or ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or its assets
or any resulting release or discharge of any obligation of the Parent or the
Borrower contained in any Financing Document;


 


(v)           the existence of any claim, set-off or other
rights which the Parent may have at any time against the Borrower, the Paying
Agent, any Lender or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;


 


(vi)          any invalidity or unenforceability relating
to or against the Borrower for any reason of any Financing Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Borrower, in the currency and funds and at the time and place specified
herein, of any amount payable by it under any Financing Document; or


 


(vii)         any other act or omission to act or delay of
any kind by the Borrower, the Paying Agent, any Lender or any other Person, or
any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge or defense of a guarantor
or surety.


 


9.03        Discharge Only upon Payment in Full; Reinstatement
in Certain Circumstances.  This Agreement shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
interest on the Loans, the Notes,and all other amounts whatsoever payable by
the Borrower under the Financing Documents shall have been finally paid in
full.  If at any time any payment of any
such amount payable by the Borrower under the Financing Documents is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Parent’s obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had
been due but not made at such time.


 


9.04        Waiver by the Parent.  The Parent
irrevocably waives acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Borrower or any other Person.


 


9.05        Subrogation. 
Upon making any payment hereunder with respect to the Borrower, the
Parent shall be subrogated to the rights of the payee against the Borrower with
respect to such payment; provided that the Parent shall not enforce any
payment by way of subrogation until all amounts of principal of and interest on
the Loans and all other amounts payable by the Borrower under the Financing
Documents have been paid in full and the Commitments have been terminated.


 


9.06        Stay of Acceleration.  In the
event that acceleration of the time for payment of any amount payable by the
Borrower under any Financing Document is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration


 


55

















 


under the terms of this Agreement shall nonetheless be payable by the
Parent hereunder forthwith on demand by the Required Lenders.


 


ARTICLE X.

MISCELLANEOUS


 


10.01      Amendments,
Etc.  No amendment or waiver of any
provision of this Agreement or any other Financing Document, and no consent to
any departure by the Borrower or any other Obligor therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Obligor, as the case may be, and acknowledged by the Paying Agent,
and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:


 


(a)           waive any condition set
forth in Section 4.01(a) without the written consent of each
Lender;


 


(b)           extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.02)
without the written consent of such Lender;


 


(c)           postpone any date fixed
by this Agreement or any other Financing Document for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any other Financing Document without the written consent of each
Lender directly affected thereby;


 


(d)           reduce the principal
of, or the rate of interest specified herein on, any Loan or (subject to clause
(iv) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Financing Document without the
written consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest at the Default Rate;


 


(e)           change Section 2.11
or Section 7.03 in a manner that would alter the pro  rata
sharing of payments required thereby without the written consent of each
Lender;


 


(f)            change any provision
of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender; or


 


(g)           except as contemplated
by Section 6.10, release the Parent from its obligations under Section 9
without the written consent of each Lender;


 


and, provided  further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the Paying Agent in addition to
the Lenders required above, affect the rights or duties of the Paying Agent
under this Agreement or any other Financing Document; and (ii)
Section 10.07(h)


 


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may not be amended, waived or otherwise modified without the consent of
each Granting Lender all or any part of whose Loans are being funded by an SPC
at the time of such amendment, waiver or other modification; and (iii) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


10.02      Notices and Other Communications;
Facsimile Copies.


 


(a)           General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if to the Borrower or the Paying Agent, to
the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and


 


(ii)           if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number specified in its
Administrative Questionnaire (a copy of each of which shall be provided by the
Paying Agent to the Borrower upon its request) or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower and the Paying Agent.


 


All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or
on behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however,
that notices and other communications to the Paying Agent pursuant to Article II
shall not be effective until actually received by such Person.  In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.


 


(b)           Effectiveness of
Facsimile Documents and Signatures. 
Financing Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Obligors, the Paying
Agent and the Lenders.  The Paying Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.


 


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(c)           Limited Use of
Electronic Mail.  Electronic
mail and Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.01, and to distribute Financing Documents for
execution by the parties thereto, and may not be used for any other purpose.


 


(d)           Reliance by Paying
Agent and Lenders.  The
Paying Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. 
The Borrower shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the
Borrower.  All telephonic notices to and
other communications with the Paying Agent may be recorded by the Paying Agent,
and each of the parties hereto hereby consents to such recording.


 


10.03      No Waiver; Cumulative Remedies.  No failure by any Lender or the Paying Agent
to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


10.04      Attorney
Costs, Expenses and Taxes.  The
Borrower agrees (a) to pay or reimburse the Paying Agent for all reasonable
costs and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Financing Documents
and any amendment, waiver, consent or other modification of the provisions
hereof and thereof (whether or not the transactions contemplated hereby or
thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all reasonable Attorney
Costs, and (b) to pay or reimburse the Paying Agent and each Lender for all
costs and expenses incurred while a Default has occurred and is continuing in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Financing Documents
(including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs.  The foregoing costs and expenses
shall include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket expenses
incurred by the Paying Agent and the cost of independent public accountants and
other outside experts retained by the Paying Agent or any Lender.  All amounts due under this Section 10.04
shall be payable within ten Business Days after demand therefor accompanied by
an invoice in reasonable detail.  The
agreements in this Section shall survive the termination of the
Commitments and repayment of all other Obligations.


 


10.05      Indemnification by the Borrower.  Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees,


 


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counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (a) while a Default has occurred and is continuing, the enforcement,
performance or administration of any Financing Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment or Loan or the use or proposed use of the proceeds therefrom, (c)
any actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Parent, any Subsidiary
or any other Obligor, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Obligor, or (d) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in whole
or in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from (i) the gross negligence or willful misconduct of such Indemnitee, (ii)
breach of the confidentiality provisions contained in Section 10.08
or (iii) a dispute solely among the Lenders. 
No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect,
consequential or punitive damages relating to this Agreement or any other
Financing Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date).  All amounts due under this Section 10.05 shall be
payable within ten Business Days after demand therefor accompanied by an
invoice in reasonable detail.  The
agreements in this Section shall survive the resignation of the Paying
Agent, the replacement of any Lender, the termination of the Commitments and
the repayment, satisfaction or discharge of all the other Obligations.


 


10.06      Payments
Set Aside.  To the extent that any payment by or on
behalf of the Borrower is made to the Paying Agent or any Lender, or the Paying
Agent or any Lender exercises its right of set-off, and such payment or the
proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Paying Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Paying Agent upon demand its
applicable share of any amount so recovered from or repaid by the Paying Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.


 


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10.07      Successors and Assigns.


 


(a)           The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that,
other than as contemplated by Section 6.10, the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) or (i) of
this Section, or (iv) to an SPC in accordance with the provisions of
subsection (h) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


(b)           Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund (as defined in subsection (g) of this Section) with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Paying Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Paying Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned; (iii) any assignment of a Commitment must
be approved by the Paying Agent unless the Person that is the proposed assignee
is itself a Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Paying Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500.  Subject to acceptance and recording thereof by the Paying Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 10.04 and 10.05 with respect
to facts and circumstances occurring prior to the effective date of such
assignment).  Upon request, the


 


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Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender, and the Note theretofore held by the assignor Lender shall be
returned to the Borrower in exchange for a new Note, payable to the assignee
Lender and reflecting its retained interest (if any) hereunder.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.


 


(c)           The Paying Agent,
acting solely for this purpose as an agent of the Borrower, shall maintain at
the Paying Agent’s Office a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Paying Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


(d)           Any Lender may at any
time, without the consent of, or notice to, the Borrower or the Paying Agent,
sell participations to any Person (other than a natural person or the Borrower
or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Paying Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.01 that directly affects such
Participant.  Subject to
subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05  to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09  as
though it were a Lender, provided such Participant agrees to be subject
to Sections 2.11 and 3.06 as though it were a Lender.


 


(e)           A Participant shall not
be entitled to receive any greater payment under Section 3.01 or 3.04  than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent subject
always to Section 3.06.


 


(f)            Any Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations


 


61

















 


of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)           As used herein, the
following terms have the following meanings:


 


“Eligible Assignee” means (a) a
Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other
Person (other than a natural person) approved by (i) the Paying Agent, and (ii)
unless an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“Fund” means any Person (other than a
natural person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.


 


“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


 


(h)           Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Paying Agent and the Borrower
(an “SPC”) the option to provide all or any part of any Loan that such
Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof.  Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any
Financing Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. 
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any SPC, it will not institute
against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior consent of
the Borrower and the Paying Agent and with the payment of a processing fee of
$3,500, assign all or any portion of its right to receive payment with respect
to any Loan to the Granting Lender and (ii) disclose on a confidential basis


 


62

















 


any non-public information relating to its funding of Loans to any
rating agency, commercial paper dealer or provider of any surety or Guarantee
or credit or liquidity enhancement to such SPC.


 


(i)            Notwithstanding anything to the contrary
contained herein, any Lender that is a Fund may create a security interest in
all or any portion of the Loans owing to it and the Note, if any, held by it to
the trustee for holders of obligations owed, or securities issued, by such Fund
as security for such obligations or securities, provided that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 10.07, (i) no such pledge shall release
the pledging Lender from any of its obligations under the Financing Documents
and (ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Financing Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through foreclosure or
otherwise.


 


10.08      Confidentiality. 
Each of the Paying Agent and the Lenders shall maintain the
confidentiality of the Information (as defined below) and shall not use the
Information except for purposes relating directly to the Financing Documents and
the credit facility contemplated hereby, except that Information may be
disclosed by the Paying Agent and the Lenders (a) to their and their
Affiliates’ directors, officers, employees and agents whom they determine need
to know such Information in connection with matters relating directly to the
Financing Documents and the credit facility contemplated hereby, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential
and the Paying Agent and Lenders, as appropriate, shall be responsible for
breach of this Section by any of them), (b) to the extent requested by any
regulatory authority (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or upon order of any court or administrative
agency of competent jurisdiction, to the extent required by such order and not
effectively stayed on appeal or otherwise, or as otherwise required by law; provided
that in the case of any intended disclosure under this clause (c), the
recipient thereof shall (unless otherwise required by applicable law) give the
Parent not less than five Business Days’ prior notice (or such shorter period
as may, in the good faith discretion of the recipient, be reasonable under the
circumstances or may be required by any court or agency under the
circumstances), specifying the Information involved and stating such
recipient’s intention to disclose such Information (including the manner and
extent of such disclosure) in order to allow the Parent an opportunity to seek
an appropriate protective order, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Financing
Document or any action or proceeding relating to this Agreement or any other
Financing Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement in writing to be bound by the provisions of this
Section (and of which the Parent shall be a third party beneficiary), to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations,
(g) with the written consent of the Borrower referencing this Section 10.08,
or (h) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section, a breach of another confidentiality
agreement to which the Paying Agent or such Lender is a party or any other
legal or fiduciary obligation of the Paying Agent or such Lender or (y) becomes


 


63

















 


available to the Paying Agent or any Lender on a nonconfidential basis
from a source other than the Borrower. 
For purposes of this Section, “Information” means all information
received from or on behalf of any Obligor relating to any Obligor or any of
their respective businesses, other than any such information that the Paying
Agent or any Lender proves is available to the Paying Agent or any Lender on a
nonconfidential basis prior to disclosure by any Obligor from a source which is
not, to the knowledge of the recipient, prohibited from disclosing such
information by a confidentiality agreement or other legal or fiduciary
obligation to the Obligors.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied with
its obligation to do so if such
Person has taken normal and reasonable precautions and exercised due care to
maintain the confidentiality of such Information.  Notwithstanding
anything herein to the contrary, “Information” shall not include, and the
Paying Agent and each Lender may disclose without limitation of any kind, any
information with respect to the “tax treatment” and “tax structure” (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Paying Agent or such
Lender relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the tax treatment or tax structure
of the Loans and transactions contemplated hereby.  The provisions of the foregoing sentence are intended solely to
comply with the requirements of the presumption in Treasury Regulation
Section 1.6011-4(b)(3)(iii) and are not intended to permit disclosure of
any Information that is not subject to the requirements of such
presumption.  In addition to other remedies,
the Obligors shall be entitled to specific performance and injunctive and other
equitable relief for breach of this Section 10.08.


 


10.09      Set-off. 
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each Lender
is authorized at any time and from time to time, without prior notice to the
Borrower or any other Obligor, any such notice being waived by the Borrower (on
its own behalf and on behalf of each Obligor) to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at
any time owing by, such Lender to or for the credit or the account of the
respective Obligors against any and all Obligations owing to such Lender
hereunder or under any other Financing Document, now or hereafter existing,
irrespective of whether or not the Paying Agent or such Lender shall have made
demand under this Agreement or any other Financing Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness.  Each Lender agrees promptly to notify the
Borrower and the Paying Agent after any such set-off and application made by
such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application.


 


10.10      Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any
Financing Document, the interest paid or agreed to be paid under the Financing
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum Rate”). 
If the Paying Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or,


 


64

















 


 if it exceeds such unpaid
principal, refunded to the Borrower.  In
determining whether the interest contracted for, charged, or received by the
Paying Agent or a Lender exceeds the Maximum Rate, such Person may, to the
extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


 


10.11      Counterparts.  This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


10.12      Integration.  This Agreement,
together with the other Financing Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof
and supersedes all prior agreements, written or oral, on such subject
matter.  In the event of any conflict
between the provisions of this Agreement and those of any other Financing
Document, the provisions of this Agreement shall control; provided that
the inclusion of supplemental rights or remedies in favor of the Paying Agent
or the Lenders in any other Financing Document shall not be deemed a conflict
with this Agreement.  Each Financing
Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.


 


10.13      Survival of Representations and Warranties.  All representations and warranties made hereunder and in any
other Financing Document or other document delivered pursuant hereto or thereto
or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof.  Such
representations and warranties have been or will be relied upon by the Paying
Agent and each Lender, regardless of any investigation made by the Paying Agent
or any Lender or on their behalf and notwithstanding that the Paying Agent or
any Lender may have had notice or knowledge of any Default at the time of any
Borrowing, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied.


 


10.14      Severability.  If any provision of
this Agreement or the other Financing Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Financing Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible
to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


10.15      Governing Law.


 


(a)           THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;



 


65

















 


PROVIDED THAT THE PAYING AGENT AND EACH LENDER
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)           ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK
CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PRINCIPAL OBLIGOR, THE PAYING
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PRINCIPAL OBLIGOR, THE PAYING AGENT AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF ANY FINANCING DOCUMENT OR OTHER DOCUMENT
RELATED THERETO.  EACH PRINCIPAL
OBLIGOR, THE PAYING AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE. 
EACH PRINCIPAL OBLIGOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT SHALL BE CONCLUSIVE AND BINDING
UPON IT AND WILL BE GIVEN EFFECT IN LUXEMBOURG TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW AND MAY BE ENFORCED IN ANY FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK CITY (OR ANY OTHER COURTS TO THE JURISDICTION OF
WHICH SUCH PRINCIPAL OBLIGOR IS OR MAY BE SUBJECT) BY A SUIT UPON SUCH
JUDGMENT, PROVIDED  THAT
SERVICE OF PROCESS IS EFFECTED UPON IT IN ONE OF THE MANNERS SPECIFIED HEREIN
OR AS OTHERWISE PERMITTED BY LAW.


 


(c)           EACH PRINCIPAL OBLIGOR
HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, HAVING AN
OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011 AS ITS
AUTHORIZED AGENT, TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF, SERVICE OF ANY AND
ALL PROCESS WHICH MAY BE SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE
NATURE REFERRED TO IN SUBSECTION (b) ABOVE IN ANY FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK CITY. 
EACH PRINCIPAL OBLIGOR REPRESENTS AND WARRANTS THAT SUCH AGENT HAS
AGREED IN WRITING TO ACCEPT SUCH APPOINTMENT AND THAT A TRUE COPY OF SUCH
DESIGNATION AND ACCEPTANCE HAS BEEN DELIVERED TO THE PAYING AGENT.  IF SUCH AGENT SHALL CEASE SO TO ACT, EACH PRINCIPAL
OBLIGOR COVENANTS AND AGREES TO DESIGNATE IRREVOCABLY AND APPOINT WITHOUT DELAY
ANOTHER SUCH AGENT SATISFACTORY TO THE PAYING AGENT AND TO DELIVER PROMPTLY TO
THE PAYING AGENT EVIDENCE IN WRITING OF SUCH OTHER AGENT’S ACCEPTANCE OF SUCH
APPOINTMENT.


 


(d)           EACH PRINCIPAL OBLIGOR
HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION, OR PROCEEDING OF
THE NATURE REFERRED TO


 


66

















 


IN SUBSECTION (b) ABOVE IN ANY FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK CITY BY SERVICE OF PROCESS UPON THE AGENT OF SUCH
PRINCIPAL OBLIGOR, AS THE CASE MAY BE, FOR SERVICE OF PROCESS IN SUCH
JURISDICTION APPOINTED AS PROVIDED IN SUBSECTION (c) ABOVE; PROVIDED  THAT, TO THE EXTENT LAWFUL AND POSSIBLE,
WRITTEN NOTICE OF SAID SERVICE UPON SUCH AGENT SHALL BE MAILED BY REGISTERED
AIRMAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH PRINCIPAL OBLIGOR
AT ITS ADDRESS SPECIFIED ON THE SIGNATURE PAGES HEREOF OR TO ANY OTHER ADDRESS
OF WHICH SUCH OBLIGOR SHALL HAVE GIVEN WRITTEN NOTICE TO THE PAYING AGENT.  EACH PRINCIPAL OBLIGOR IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ALL CLAIM OF ERROR BY REASON OF ANY
SUCH SERVICE AND AGREES THAT SUCH SERVICE SHALL BE DEEMED IN EVERY RESPECT
EFFECTIVE SERVICE OF PROCESS UPON SUCH PRINCIPAL OBLIGOR IN ANY SUCH SUIT,
ACTION OR PROCEEDING AND SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, BE
TAKEN AND HELD TO BE VALID AND PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO
SUCH PRINCIPAL OBLIGOR.


 


(e)           NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE PAYING AGENT OR ANY LENDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF THE PAYING AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST EITHER PRINCIPAL OBLIGOR IN THE COURTS OF
ANY JURISDICTION OR JURISDICTIONS.


 


10.16      Judgment
Currency.  If, under any applicable law and whether
pursuant to a judgment being made or registered against either Principal
Obligor or for any other reason, any payment under or in connection with this
Agreement, is made or satisfied in a currency (the “Other Currency”)
other than that in which the relevant payment is due (the “Required Currency”)
then, to the extent that the payment (when converted into the Required Currency
at the rate of exchange on the date of payment or, if it is not practicable for
the party entitled thereto (the “Payee”) to purchase the Required
Currency with the Other Currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so) actually
received by the Payee falls short of the amount due under the terms of this
Agreement, such Principal Obligor shall, to the extent permitted by law, as a
separate and independent obligation, indemnify and hold harmless the Payee
against the amount of such shortfall. For the purpose of this Section, “rate of
exchange” means the rate at which the Payee is able on the relevant date to
purchase the Required Currency with the Other Currency and shall take into
account any premium and other costs of exchange.


 


10.17      Waiver of Right to Trial by
Jury.  EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY FINANCING DOCUMENT OR IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY FINANCING DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY


 


67

















 


AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


10.18      Waiver of Immunities


 


TO THE EXTENT
PERMITTED BY APPLICABLE LAW, IF EITHER PRINCIPAL OBLIGOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR
PROCEEDING, FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LEGAL PROCESS
(WHETHER SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO
ITSELF OR ANY OF ITS PROPERTY, SUCH PRINCIPAL OBLIGOR HEREBY IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS TO WHICH IT IS A
PARTY.  EACH PRINCIPAL OBLIGOR AGREES
THAT THE WAIVERS SET FORTH ABOVE SHALL BE TO THE FULLEST EXTENT PERMITTED UNDER
THE FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 OF THE UNITED STATES OF AMERICA
AND ARE INTENDED TO BE IRREVOCABLE AND NOT SUBJECT TO WITHDRAWAL FOR PURPOSES
OF SUCH ACT.


 


68

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.


 


	
   

  	
  TYCO
  INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin O'Kelly-Lynch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kevin O'Kelly-Lynch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TYCO INTERNATIONAL
  LTD.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. FitzPatrick

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David J. FitzPatrick

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice President and 

  Chief Financial Officer

  	
   

  
						



 


S-1

















 


	
   

  	
  BANK OF AMERICA, N.A., as

  Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John W. Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-2

















 


	
   

  	
  BANK OF AMERICA, N.A., as
  a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John W. Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-3

















 


	
   

  	
  CITICORP NORTH
  AMERICA, INC., as a

  Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Martens, III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William Martens, III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-4

















 


	
   

  	
  ABN AMRO BANK N.V.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric Oppenheimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Eric Oppenheimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd Miller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Todd J. Miller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant Vice President

  	
   

  
						



 


S-5

















 


	
   

  	
  AUSTRALIA AND NEW
  ZEALAND
   BANKING GROUP LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Wade

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John Wade

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-6

















 


	
   

  	
  BANCO BILBAO
  VIZCAYA
   ARGENTARIA S.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay Levit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jay Levit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Salustiano Machado

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Salustiano Machado

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-7

















 


	
   

  	
  THE BANK OF N.T.
  BUTTERFIELD
   & SON LTD.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.W. Raynde

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  J.W. Raynde

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Curtis Sallantyne

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Curtis Sallantyne

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-8

















 


	
   

  	
  THE BANK OF NOVA
  SCOTIA

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William E. Zarrett

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William E. Zarrett

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-9

















 


	
   

  	
  BANK ONE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Grover A. Fitch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Grover A. Fitch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-10

















 


	
   

  	
  BARCLAYS BANK PLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Giannone

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John Giannone

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-11

















 


	
   

  	
  BAYERISCHE HYPO-UND
   VEREINSBANK AG, New York Branch

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marianne Weinzinger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Marianne Weinzinger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patricia Grieve

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Patricia Grieve

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-12

















 


	
   

  	
  BAYERISCHE
  LANDESBANK NEW YORK BRANCH

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Oliver Hildenbrand

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Oliver Hildenbrand

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James H. Boyle

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  James H. Boyle

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-13

















 


	
   

  	
  BEAR STEARNS
  CORPORATE
  LENDING INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence Alletto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Lawrence Alletto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-14

















 


	
   

  	
  BNP PARIBAS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Pace

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard Pace

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nanette Baudon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nanette Baudon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-15

















 


	
   

  	
  COMMERZBANK AG, New
  York and
  Grand Cayman Branches

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert S. Taylor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert S. Taylor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew P. Lusk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew P. Lusk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-16

















 


	
   

  	
  CREDIT SUISSE FIRST
  BOSTON,

   
  acting through its Cayman Islands Branch

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Chauvin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Peter Chauvin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alain Daoust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Alain Daoust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-17

















 


	
   

  	
  DEUTSCHE BANK AG
  NEW YORK BRANCH

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Iain Stewart

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Iain Stewart

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrick Dutilly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Patrick Dutilly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-18

















 


	
   

  	
  FLEET NATIONAL BANK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marwan Isbaih

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Marwan Isbaih

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-19

















 


	
   

  	
  GOLDMAN SACHS
  CREDIT PARTNERS L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W.W. Archer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William W. Archer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
						



 


S-20

















 


	
   

  	
  THE GOVERNOR AND COMPANY
  OF THE BANK OF IRELAND

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tony McMahon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Tony McMahon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tara Lochran

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Tara Lochran

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Executive

  	
   

  
						



 


S-21

















 


	
   

  	
  ING BELGIUM SA/NV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yves Adler

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Yves Adler

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Maurissen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert Maurissen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-22

















 


	
   

  	
  JPMORGAN CHASE BANK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert T. Sacks

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert T. Sacks

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 


S-23

















 


	
   

  	
  LEHMAN COMMERCIAL
  PAPER INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane E. Gillard

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jane E. Gillard

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
						



 


S-24

















 


	
   

  	
  MANUFACTURERS AND
  TRADERS
  TRUST COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua C. Becker

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joshua C. Becker

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Officer

  	
   

  
						



 


S-25

















 


	
   

  	
  MELLON BANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel J. Lenckos

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Daniel J. Lenckos

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
						



 


S-26

















 


	
   

  	
  MERRILL LYNCH BANK
  USA

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Louis Alder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-27

















 


	
   

  	
  MIZUHO CORPORATE
  BANK, LTD.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Gallagher

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert Gallagher

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-28

















 


	
   

  	
  MORGAN STANLEY BANK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jaap L. Tonckens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jaap L. Tonckens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-29

















 


	
   

  	
  THE NORTHERN TRUST
  COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ashish S. Bhagwat

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ashish S. Bhagwat

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-30

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank Guerra

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Frank Guerra

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 


S-31

















 


	
   

  	
  SAN PAOLO IMI
  S.p.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Renato Carducci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Renato Carducci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  General Manager

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Luca Sacchi

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Luca Sacchi

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


S-32

















 


	
   

  	
  SOCIETE GENERALE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ambrish Thanawala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ambrish Thanawala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


S-33

















 


	
   

  	
  UBS LOAN FINANCE
  LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara Ezell-McMichael

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Barbara Ezell-McMichael

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joselln Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joselln Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate Director

  	
   

  
						



 


S-34

















 


	
   

  	
  WESTPAC BANKING CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew Ramsay

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew Ramsay

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Head of Relationship Management

  	
   

  
						



 


S-35

















 


SCHEDULE 1


 


PRICING GRID


 


	
  Rating Level

  Period

  	
   

  	
  Applicable Facility

  Fee Rate

  	
   

  	
  Applicable Margin

  	
   

  	
  Applicable Margin

  
	
   

  	
   

  	
   

  	
   

  	
  (Eurodollar Rate

  Loans other than

  Term Loans)

  	
   

  	
  (Eurodollar Rate

  Loans that are Term

  Loans)

  
	
  1

  	
   

  	
  7.0 bps

  	
   

  	
  43.0 bps

  	
   

  	
  143.0 bps

  
	
  2

  	
   

  	
  9.0 bps

  	
   

  	
  66.0 bps

  	
   

  	
  166.0 bps

  
	
  3

  	
   

  	
  12.5 bps

  	
   

  	
  75.0 bps

  	
   

  	
  175.0 bps

  
	
  4

  	
   

  	
  15.0 bps

  	
   

  	
  85.0 bps

  	
   

  	
  185.0 bps

  
	
  5

  	
   

  	
  20.0 bps

  	
   

  	
  105.0 bps

  	
   

  	
  205.0 bps

  
	
  6

  	
   

  	
  37.5 bps

  	
   

  	
  137.5 bps

  	
   

  	
  237.5 bps

  



 


1

















 


SCHEDULE 2.01


 


COMMITMENTS

AND COMMITMENT PERCENTAGES


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Commitment

  Percentage

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  69,000,000

  	
   

  	
  6.900000000

  	
  %

  
	
  Citicorp
  North America, Inc.

  	
   

  	
  $

  	
  69,000,000

  	
   

  	
  6.900000000

  	
  %

  
	
  ABN AMRO
  Bank N.V.

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Deutsche
  Bank AG New York Branch

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Goldman
  Sachs Credit Partners L.P.

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  JPMorgan
  Chase Bank

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Morgan
  Stanley Bank

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  UBS Loan Finance
  LLC

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Barclays
  Bank plc

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  BNP Paribas

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  Credit
  Suisse First Boston, acting through its Cayman Islands Branch

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  The Royal
  Bank of Scotland plc

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  Lehman
  Commercial Paper Inc.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Mellon Bank,
  N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Merrill
  Lynch Bank USA

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  The Bank of
  Nova Scotia

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Societe
  Generale

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Banco Bilbao
  Vizcaya Argentaria S.A.

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  2.000000000

  	
  %

  
	
  Commerzbank
  AG, New York and Grand Cayman Branches

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  2.000000000

  	
  %

  
	
  Bank One

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bayerische
  Hypo-Und Vereinsbank A.G., New York Branch

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bayerische
  Landesbank New York Branch

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bear Stearns
  Corporate Lending Inc.

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Fleet
  National Bank

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Manufacturers
  and Traders Trust Company

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  San Paolo
  IMI S.p.A.

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  The Northern
  Trust Company

  	
   

  	
  $

  	
  14,000,000

  	
   

  	
  1.400000000

  	
  %

  
	
  The Governor
  and Company of the Bank of Ireland

  	
   

  	
  $

  	
  12,000,000

  	
   

  	
  1.200000000

  	
  %

  
	
  Australia
  and New Zealand Banking Group Limited

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  The Bank of
  N.T. Butterfield & Son Ltd.

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  ING Belgium
  NV/SA

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Mizuho
  Corporate Bank, Ltd.

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Westpac
  Institutional Bank

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  1,000,000,000

  	
   

  	
  100.000000000

  	
  %

  



 


1

















 


SCHEDULE 5.05


 


LITIGATION


 


None.


 


1

















 


SCHEDULE 10.02


 


PAYING AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES


 


Notice to


 


Kevin O’Kelly-Lynch


Tyco International Group S.A.


17, bd Grande-Duchesse Charlotte


L-1331 Luxembourg


Fax: +352 46-43-50


Tel: +352  46-43-40-352


email: KOKellyLynch@TYCO.COM


 


with CC: to


Judith A. Reinsdorf


Tyco International (US) Inc.


9 Roszel Rd.


Princeton NJ 08540


Fax: (609) 720-4320


Tel: (609) 720-4340


email: jreinsdorf@TYCO.COM


 


Website address:  www.tyco.com


 


PAYING AGENT:


 


Paying Agent’s Office 

(for payments and Requests for Borrowings):


Bank of America, N.A.


Street Address  101 North Tryon
Street


Mail Code:  NC1-001-15-04

City, State ZIP Code Charlotte, NC 
28255


Attention:  Laura Schultz


Telephone:  704-388-6484


Facsimile:   704-409-0008


Electronic Mail:  laura.a.schultz@bankofamerica.com


Account No.:  1366212250600


Ref:    Tyco
International          


ABA# 026009593


 


Other Notices as Paying Agent:


Bank of America, N.A.

Agency Management

101 North Tryon Street, 15th Floor


 


1

















 


Mail Code:  NC1-001-15-02

Charlotte, NC  28255


Attention:  Kimberly Williams


Telephone:  704-387-5451


Facsimile:  704-409-0650


Electronic Mail:  kim.williams@bankofamerica.com


 


2

















 


EXHIBIT A


 


FORM OF LOAN NOTICE


 


Date: 
                 ,
          


 


To:          Bank of America, N.A., as Paying Agent


 


Ladies and Gentlemen:


 


Reference is
made to that certain Credit Agreement, dated as of December 22, 2003 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among Tyco International Group S.A., a Luxembourg
company (the “Borrower”), Tyco International Ltd., a Bermuda company
(the “Parent”), the Lenders from time to time party thereto, and Bank of
America, N.A., as Paying Agent.


 


The
undersigned hereby requests (select one):


 


	
  o  A Borrowing of Loans

  	
   

  	
  o  A conversion or continuation of Loans

  



 


	
  1.

  	
  On                                                                       
  (a Business Day).

  
	
   

  	
   

  	
   

  
	
  2.

  	
  In the amount of
  $                                              .

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Comprised
  of                                                                 
  .

  
	
   

  	
  [Type of Loan requested]

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  For Eurodollar Rate Loans: 
  with an Interest Period of
                        months.

  



 


[The Borrowing
requested herein complies with the proviso to the first sentence of Section 2.01
of the Agreement.]


 


	
   

  	
  TYCO INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


A - 1

















 


EXHIBIT B


 


FORM OF NOTE


 


New York, New
York

                           ,
2003


 


FOR VALUE
RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
                                               
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrower under that certain Credit
Agreement, dated as of December 22, 2003 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among the
Borrower, Tyco International Ltd., the Lenders from time to time party thereto,
and Bank of America, N.A., as Paying Agent.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement.  All payments of principal and interest shall be made to the
Paying Agent for the account of the Lender in Dollars in immediately available
funds at the Paying Agent’s Office.  If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.


 


This Note is
one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein.  This Note
is also entitled to the benefits of the Parent Guaranty and each Subsidiary
Guaranty.  Upon the occurrence and
continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the
Agreement.  Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Loans and
payments with respect thereto.


 


Except as
otherwise provided in the Agreement, the Borrower, for itself, its successors
and assigns, hereby waives diligence, presentment, protest and demand and
notice of protest, demand, dishonor and non-payment of this Note.


 


B - 1

















 


THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


	
   

  	
  TYCO INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B - 2

















 


LOANS AND PAYMENTS
WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest

  Paid This

  Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B - 3

















 


EXHIBIT C


 


ASSIGNMENT
AND ASSUMPTION


 


This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name
of Assignor] (the “Assignor”) and [Insert name of Assignee]
(the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.


 


For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Paying Agent
as contemplated below (i) all of the Assignor’s rights and obligations as a
Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including,
without limitation, Guarantees included in such facilities) and (ii) to the
extent permitted to be assigned under applicable law, all claims, suits, causes
of action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively
as, the “Assigned Interest”). 
Such sale and assignment is without recourse to the Assignor and, except
as expressly provided in this Assignment and Assumption, without representation
or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:
                                                                    
  [and is an Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower(s):                                             

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Paying Agent: Bank of America, N.A, as the Paying Agent under the

  
	
   

  	
   

  	
  Credit Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit Agreement: The Credit Agreement, dated as of December 22,
  2003 among Tyco International Group S.A., as Borrower, Tyco International
  Ltd., as Parent Guarantor, the Lenders parties thereto, and Bank of America,
  N.A., as Paying Agent

  



 












(1)  Select as applicable.


 


C - 1

















 


	
  6.

  	
   

  	
  Assigned Interest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Aggregate

  Amount of

  Commitments

  For all Lenders*

  	
   

  	
  Amount of

  Commitment

  Assigned*

  	
   

  	
  Percentage

  Assigned of

  Commitment

  	
   

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
								



 


	
  [7.

  	
   

  	
  Trade
  Date:                                          ](2)

  



 


Effective Date:
                                          ,
20   [TO BE INSERTED BY PAYING AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set
forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 


	
  [Consented to and](3) Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF PAYING AGENT], as

  	
   

  
	
   Paying Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:](4)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 












(2)  To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.


(3)  To be added only if the consent of the
Paying Agent is required by the terms of the Credit Agreement.


(4)  To be added only if the consent of the
Borrower is required by the terms of the Credit Agreement.


 


C - 2

















 


ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION


 


 CREDIT AGREEMENT DATED AS OF DECEMBER 22, 2003 AMONG TYCO
INTERNATIONAL GROUP S.A., AS BORROWER, TYCO INTERNATIONAL LTD., AS PARENT
GUARANTOR, THE LENDERS PARTIES THERETO, AND BANK OF AMERICA, N.A., AS PAYING
AGENT


 


STANDARD TERMS AND CONDITIONS FOR


 


ASSIGNMENT AND ASSUMPTION


 


1.                 Representations and Warranties.


 


1.1.              Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii)
the Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Financing
Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Financing Documents or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Financing Document
or (iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under
any Financing Document.


 


1.2.              Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under
the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to
Section      thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Paying Agent or any
other Lender, and (b) agrees that (i) it will, independently and without
reliance on the Paying Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the
Financing Documents, and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Financing Documents are
required to be performed by it as a Lender.


 


2.                 Payments.  From and after the Effective Date, the
Paying Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate
adjustments in


 


C - 3

















 


payments by the Paying Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.


 


3.                 General Provisions.  This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed in accordance with, the laws of the State of New
York.


 


C - 4