MASTER GUARANTEE
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AND LETTER OF CREDIT AGREEMENT
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Dated as of December 16, 2003
THIS MASTER GUARANTEE AND LETTER OF CREDIT
AGREEMENT (this "Agreement") is
entered into by and between WYETH (the
"Applicant"), a Delaware corporation, and
ABN AMRO Bank N.V. (together with its
affiliates as set forth in Section 13.8,
the "Bank").
The Applicant may from time to time request
that the Bank issue bank guarantees
in favor of third parties and one letter of
credit for the account of the
Applicant. It is understood and agreed
that, without affecting the obligations
of the Applicant hereunder, such guarantees
will be issued to support potential
claims against the Applicant's wholly owned
subsidiary AHP Manufacturing B.V.
("AHP"). The Applicant agrees that, except
as provided below, any such bank
guarantee and such letter of credit shall
be subject to the terms and provisions
of this Agreement, and the Applicant
further agrees with and for the benefit of
the Bank as follows:
SECTION 1 CERTAIN DEFINITIONS. When used
herein the following terms shall have
the following meanings (such definitions to
be applicable to both the singular
and plural forms of such terms):
Acceptable Letter of Credit means a
direct-pay letter of credit (i) issued in
the name of the Bank by a bank organized
under the laws of a member state of the
Organisation for Economic Co-Operation and
Development if such bank has a
long-term debt rating equal to or higher
than A1 by Moody's and A+ by S&P, (ii)
drawable upon presentation by the Bank to
the issuing bank of a sight draft
within five Business Days of its expiration
date and payable on such expiration
date, (iii) with a term no longer than 90
days from the date of its issuance and
(iv) the terms of which shall include
provisions permitting the Bank to draw on
such letter of credit at any time after the
long-term debt rating of the issuing
bank shall fall below any one of the
ratings referred to in clause (i) above and
such other terms as the Bank shall
reasonably require.
Authorized Representative is defined in
Section 6(g).
Business Day means any day on which the
Bank is open for commercial banking
business at its office in New York, New
York.
Cash Collateral Account is defined in
Section 5.1.
Cash Collateralization Event is defined in
Section 11.1.
Collateralization Date is defined in
Section 4.7.
Collateralization Request Deadline is
defined in Section 4.7.
Credits means, collectively, the Guarantees
and the Letter of Credit.
Event of Default means any of the events
described in Section 12.1.
Financing Lease means any lease of
property, real or personal, the obligations
of the lessee in respect of which are
required in accordance with generally
accepted accounting principles in effect in
the United States of America from
time to time to be capitalized on a balance
sheet of the lessee.
Fee Rate is defined in Section 7(a).
Guarantee Obligation means, as to any
Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person
or (b) another Person (including,
without limitation, any bank under any
letter of credit) to induce the creation
of which the guaranteeing person has issued
a reimbursement, counterindemnity or
similar obligation, in either case
guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other
obligations (the "primary obligations")
of any other third Person (the "primary
obligor") in any manner, whether
directly or indirectly, including, without
limitation, any obligation of the
guaranteeing person, whether or not
contingent, (i) to purchase any such primary
obligation or any property constituting
direct or indirect security therefor,
(ii) to advance or supply funds (1) for the
purchase or payment of any such
primary obligation or (2) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain
the net worth or solvency of the
primary obligor, (iii) to purchase
property, securities or services primarily
for the purpose of assuring the owner of
any such primary obligation of the
ability of the primary obligor to make
payment of such primary obligation or
(iv) to assure or hold harmless the owner
of any such primary obligation against
loss in respect thereof; provided, however,
that the term Guarantee Obligation
shall not include endorsements of
instruments for deposit or collection in the
ordinary course of business. The amount of
any Guarantee Obligation of any
guaranteeing person shall be deemed to be
the lower of (a) an amount equal to
the stated or determinable amount of the
primary obligation in respect of which
such Guarantee Obligation is made and (b)
the maximum amount for which such
guaranteeing person may be liable pursuant
to the terms of the instrument
embodying such Guarantee Obligation, unless
such primary obligation and the
maximum amount for which such guaranteeing
person may be liable are not stated
or determinable, in which case the amount
of such Guarantee Obligation shall be
such guaranteeing person's maximum
reasonably anticipated liability in respect
thereof as determined by the Applicant in
good faith.
Guarantees means, collectively, the SVG
Guarantee and all Third Party
Guarantees.
Indebtedness of any Person at any date
means (a) all indebtedness of such Person
for borrowed money or for the deferred
purchase price of property or services
(other than current trade liabilities
incurred in the ordinary course of
business and payable in accordance with
customary practices), (b) any other
indebtedness of such Person which is
evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of
such Person under Financing Leases,
(d) all obligations of such Person in
respect of acceptances issued or created
for the account of such Person and (e) all
liabilities secured by any Lien on
any property owned by such Person even
though such Person has not assumed or
otherwise become liable for the payment
thereof.
Item means any draft, order, instrument,
demand or other document drawn or
presented, or to be drawn or presented,
under any Credit.
ISP means at any time the most recent
International Standby Practices issued by
the Institute for International Banking Law
& Practice, Inc.
Letter of Credit means the letter of credit
issued by the Bank for the account
of the Applicant pursuant to Section 3.1,
as amended or otherwise modified from
time to time.
Liabilities means all obligations of the
Applicant to the Bank and its
successors and assigns, howsoever created,
arising or evidenced, whether direct
or indirect, absolute or contingent, now or
hereafter existing or due or to
become due, arising out of or in connection
with this Agreement, any Guarantee,
any Letter of Credit or any instrument or
document delivered in connection
herewith or therewith.
Lien means any mortgage, pledge,
hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other),
charge or other security interest or any
preference, priority or other security
agreement or preferential arrangement of
any kind or nature whatsoever (including,
without limitation, any conditional
sale or other title retention agreement and
any Financing Lease having
substantially the same economic effect as
any of the foregoing).
Material Adverse Effect means a material
adverse effect on the business,
operations, property or condition
(financial or otherwise) of the Applicant, or
the ability of the Applicant to perform its
obligations under this Agreement, or
the validity or enforceability of this
Agreement or the rights or remedies of
the Bank.
Moody's means Moody's Investors Service,
Inc.
Moody's Rating means, at any time, the
rating level (it being understood that
numerical modifiers and (+)(-) modifiers
shall constitute rating levels) then
assigned by Moody's to the Applicant's
senior unsecured long-term debt.
Permitted Investments means investments
satisfying the requirements of Annex 1
hereto.
Person means any natural person,
corporation, partnership, trust, limited
liability company, association,
governmental authority or unit, or any other
entity, whether acting in an individual,
fiduciary or other capacity.
Prime Rate means the rate per annum
established by the Bank from time to time as
its "Prime Rate" for loans to its
commercial customers. The Prime Rate is a
reference rate and does not necessarily
represent the lowest or best rate
actually charged to any customer.
Request means, at any time, a request
(which shall be in writing, including by
facsimile) for a Third Party Guarantee to
be issued by the Bank, which request
shall consist of (i) a letter from the
Applicant (signed by an Authorized
Representative of the Applicant),
specifying (a) the requested issuance date,
(b) the name and contact information of the
Person to whom such Third Party
Guarantee is to be delivered and (c) the
manner of such delivery, and (ii) a
joint letter from the Applicant (signed by
an Authorized Representative of the
Applicant) and SVG authorizing or
consenting to such issuance and specifying (a)
the name of each third party in favor of
which the respective Third Party
Guarantee is requested to be issued and (b)
the maximum amount covered by such
Third Party Guarantee.
S&P means Standard & Poor's Ratings
Services, a division of McGraw-Hill, Inc.
S&P Rating means, at any time, the
rating level (it being understood that
numerical modifiers and (+)(-) modifiers
shall constitute rating levels) then
assigned by S&P to the Applicant's
senior unsecured long-term debt.
Significant Subsidiary means any subsidiary
of the Applicant that satisfies the
requirements of Rule 1-02(w) of Regulation
S-X as adopted by the Securities and
Exchange Commission under the provisions of
the Securities Act of 1933 and the
Securities Exchange Act of 1934 as in force
on the date of this Agreement.
SVG means Schuurmans & Van Ginneken
B.V.
SVG Guarantee means (i) initially, a bank
guarantee in substantially the form of
Exhibit A hereto and (ii) after the
issuance of the first Third Party Guarantee,
a bank guarantee in substantially the form
of Exhibit B hereto, in each case
issued by the Bank in favor of SVG.
Third Party Guarantee means a bank
guarantee in substantially the form of
Exhibit C hereto (with such changes as the
Applicant, the third party, SVG and
the Bank shall reasonably agree to) issued
by the Bank in favor of the third
party or parties specified in the Request
therefor.
UCC means at any time the Uniform
Commercial Code as then in effect in the State
of New York.
UCP means at any time the most recent
Uniform Customs and Practice for
Documentary Credits issued by the
International Chamber of Commerce.
Unmatured Event of Default means any event
which if it continues uncured will,
with lapse of time or notice or both,
constitute an Event of Default.
SECTION 2 GUARANTEES
2.1 Issuance of Guarantees. Subject to the
terms and conditions of this
Agreement, (i) not later than close of
business, Rotterdam, The Netherlands
time, on December 18, 2003 the Bank shall
issue the SVG Guarantee and, provided
that the Bank has received a written notice
from SVG indicating the contact
information of the Person who should
receive the SVG Guarantee, deliver the SVG
Guarantee by courier to such Person and
(ii) following receipt by the Bank at
its office in Rotterdam, The Netherlands of
any Request, the Bank shall issue a
Third Party Guarantee in favor of the third
party or parties specified in such
Request.
2.2 Certain Terms of Guarantees. The
aggregate maximum amount covered by the SVG
Guarantee and all Third Party Guarantees
issued by the Bank hereunder shall not
exceed EUR135,000,000 at any time
outstanding. No Guarantee shall expire later
than December 10, 2018.
2.3 Procedure for Issuance of Third Party
Guarantees. Subject to receipt by the
Bank at its office in Rotterdam, The
Netherlands, not later than three Business
Days prior to the date of a proposed
issuance of any Third Party Guarantee (or
such later date as the Bank shall agree) of
a Request for the issuance of such
Third Party Guarantee and subject to
receipt (at the time such Third Party
Guarantee is to be issued) by the Bank at
its office in Rotterdam, The
Netherlands, of the original of the then
outstanding SVG Guarantee for
replacement, the Bank shall (i) deliver to
the Person indicated in the Request
the new Third Party Guarantee and (ii)
replace the then outstanding SVG
Guarantee with a new SVG Guarantee in
substantially the form of Exhibit B
hereto, which shall specify the name of
each third party to whom Third Party
Guarantees have theretofore been issued and
the maximum amount covered by each
such Third Party Guarantee. A Request may
be sent by facsimile, by United States
mail, by overnight courier, by personal
delivery or by any other means
acceptable to the Bank. If a Third Party
Guarantee is to have changes from, or
is to be in a different form from, Exhibit
C hereto, such changes or other form
shall be agreed upon between the Applicant,
the third party, SVG, and both
branches of the Bank before the Request is
furnished.
SECTION 3 ISSUANCE OF LETTER OF CREDIT.
Subject to the terms and conditions of
this Agreement, the Bank shall issue a
Letter of Credit substantially in the
form of Exhibit D hereto in the amount of
EUR135,000,000 not later than December
17, 2003.
SECTION 4 REIMBURSEMENT OBLIGATIONS;
RESPONSIBILITIES, ETC.
4.1 Reimbursement Obligations. The
Applicant hereby agrees to reimburse the Bank
forthwith upon demand in an amount equal to
any payment or disbursement made by
the Bank under any Guarantee, any Letter of
Credit or any time draft issued
pursuant thereto, together with interest on
the amount so paid or disbursed by
the Bank from and including the date of
payment or disbursement to but not
including the date the Bank is reimbursed
by the Applicant at a rate equal to
the Prime Rate from time to time in effect
plus 2% per annum (or, if less, the
maximum rate permitted by applicable law).
Without limiting the obligations of
the Applicant hereunder to reimburse the
Bank for any payments or disbursements
by the Bank under the Letter of Credit, it
is acknowledged and agreed that if
any such payment or disbursement under the
Letter of Credit is made to reimburse
the Bank for a payment or disbursement
under a Guarantee, then the obligation of
the Applicant to reimburse the Bank for
such payment or disbursement under the
Guarantee shall be discharged to the extent
of such payment or disbursement
under the Letter of Credit. The obligation
of the Applicant to reimburse the
Bank under this Section 4 for payments and
disbursements made by the Bank under
any Guarantee, any Letter of Credit or any
time draft issued pursuant thereto
shall be absolute and unconditional under
any and all circumstances, including,
without limitation, the following:
(a) any failure of any Item presented
under any Credit to comply strictly with
the terms of
such Credit;
(b) the legality, validity, regularity
or enforceability of any Credit or of
any Item
presented thereunder;
(c) any defense based on the identity
of the transferee of any Credit or the
sufficiency of
the transfer if such Credit is transferable;
(d) the existence of any claim,
set-off, defense or other right that the
Applicant may
have at any time against any beneficiary or transferee of any
Credit, the Bank
or any other Person, whether in connection with this
Agreement, the
transactions contemplated hereby or any unrelated
transaction;
(e) any Item presented under any
Credit proving to be forged, fraudulent,
invalid or
insufficient in any respect or any statement therein being
untrue or
inaccurate in any respect;
(f) honor of a demand for payment
presented electronically even if any Credit
requires that
demand be in the form of a draft;
(g) waiver by the Bank of any
requirement that exists for the Bank's protection
and not the
protection of the Applicant or any waiver by the Bank which
does not in fact
materially prejudice the Applicant;
(h) any payment made by the Bank in
respect of an Item presented after the date
specified as the
expiration date of, or the date by which documents must be
received under,
any Credit if payment after such date is authorized by the
ISP, the UCC or
the UCP, as applicable; or
(i) any other circumstance or
happening whatsoever, whether or not similar to
any of the
foregoing;
provided that the Applicant shall not be
obligated to reimburse the Bank for any
wrongful payment or disbursement made by
the Bank under any Guarantee, any
Letter of Credit as a result of any act or
omission constituting gross
negligence, bad faith or willful misconduct
on the part of the Bank.
4.2 Discrepancies. (a) The Applicant agrees
that it will promptly examine any
and all instruments and documents delivered
to it from time to time in
connection with any Credit, and if the
Applicant has any claim of non-compliance
with its instructions or of discrepancies
or other irregularity, the Applicant
will immediately (and, in any event, within
three Business Days after delivery
thereof) notify the Bank thereof in
writing, and the Applicant shall be deemed
to have waived any claim against the Bank
unless such notice is given within
such time period. Without limiting the
foregoing, if the Bank makes any payment
or disbursement under a Credit and the
Applicant does not send a notice to the
Bank within three Business Days objecting
to such payment or disbursement and
specifying in reasonable detail the
discrepancy or irregularity which is the
basis for such objection, then the
Applicant shall be precluded from making any
objection to the Bank's honor of the
presentation with respect to which such
payment or disbursement was made (but shall
not be precluded from asserting any
objection to any different presentation
under the same or a different Credit).
(b) The Applicant's acceptance or retention
of any documents presented under or
in connection with a Credit (including
originals or copies of documents sent
directly to the Applicant) or of any
property for which payment is supported by
a Credit shall ratify the Bank's honor of
the documents and absolutely preclude
the Applicant from raising a defense or
claim with respect to the Bank's honor
of the relevant presentation.
4.3 Documents. The Applicant agrees that
the Bank and its correspondents: (a)
may accept as complying with the applicable
Credit any Item drawn, issued or
presented under such Credit which is issued
or purportedly issued by an agent,
executor, trustee in bankruptcy, receiver
or other representative of the party
identified in such Credit as the party
permitted to draw, issue or present such
Item; and (b) may in its or their
discretion, but shall not be obligated to,
accept or honor (i) any Item which
substantially complies with the terms of the
applicable Credit; (ii) any Item which
substantially complies under the laws,
rules, regulations and general banking or
trade customs and usages of the place
of presentation, negotiation or payment;
(iii) drafts which fail to bear any or
adequate reference to the applicable
Credit; (iv) any Item presented to the Bank
after the stated expiration date of a
Credit but within any applicable time
period during which such Credit may be
honored in accordance with the UCP, the
UCC and/or the ISP, as applicable (and, in
any event, any Item presented to the
Bank on the Business Day immediately
following the stated expiration date of any
Credit, if such stated expiration date
falls on a day which is not a Business
Day); or (v) any Item which substantially
complies with the requirements of the
UCP, the UCC and/or the ISP, as applicable.
In determining whether to pay under
any Credit, the Bank shall have no
obligation to the Applicant or any other
Person except to confirm that the Items
required to be delivered under such
Credit appear to have been delivered and
appear on their face to substantially
comply with the requirements of such
Credit. For purposes of the foregoing, an
Item "substantially complies" unless there
are discrepancies in the presentation
which appear to be substantial and which
reflect corresponding defects in the
beneficiary's performance in the underlying
transaction. A discrepancy is not
substantial if it is unrelated or
immaterial to the nature or amount of the
Applicant's loss. For example, documents
honored by the Bank that do not comply
with the timing requirements of the Credit
for presenting or dating any required
beneficiary statement nonetheless
substantially comply if those timing
requirements are not material in
determining whether the underlying agreement
has been substantially performed or
violated.
4.4 Exculpation. In addition to the
exculpatory provisions contained in the UCP,
the UCC and/or the ISP, as applicable, the
Bank and its correspondents shall not
be responsible for, and the Applicant's
obligation to reimburse the Bank shall
not be affected by, (a) compliance with any
law, custom or regulation in effect
in the country of issuance, presentation,
negotiation or payment of any Letter
of Credit, (b) any refusal by the Bank to
honor any Item because of an
applicable law, regulation or ruling of any
governmental agency, whether now or
hereafter in effect, (c) any action or
inaction required or permitted under the
UCC, the UCP, the ISP or the United Nations
Convention on Independent Guarantees
and Stand-by Letters of Credit, in each
case as applicable, or (d) any act or
the failure to act of any agent or
correspondent of the Bank, including, without
limitation, failure of any such agent or
correspondent to pay any Item because
of any law, decree, regulation, ruling or
interpretation of any governmental
agency, unless due to the gross negligence,
bad faith or willful misconduct of
the Bank.
4.5 Risks. The Applicant assumes all risks
of the acts or omissions of any
beneficiary or transferee of any Credit (it
being understood that such
assumption is not intended to, and shall
not, preclude the Applicant from
pursuing any right or remedy it may have
against any such beneficiary or
transferee). The Applicant further agrees
that any action or omission by the
Bank under or in connection with any Credit
or any related Item, document or
property shall, unless in breach of good
faith or in the event of gross
negligence or willful misconduct, be
binding on the Applicant and shall not put
the Bank under any resulting liability to
the Applicant. Without limiting the
foregoing, the Applicant agrees that in no
event shall the Bank be liable for
incidental, consequential, punitive,
exemplary or special damages.
4.6 Limitation on Bank's Obligations.
Without limiting any other provision
herein, the Bank is expressly authorized
and directed to honor any request for
payment which is made under and in
compliance with the terms of any Credit
without regard to, and without any duty on
the part of the Bank to inquire into,
the existence of any dispute or controversy
between any of the Applicant, the
beneficiary of any Credit or any other
Person, or the respective rights, duties
or liabilities of any of them, or whether
any facts represented in any Item
presented under a Credit are true or
correct. Furthermore, the Applicant agrees
that the Bank's obligation to the Applicant
shall be limited to honoring
requests for payment made under and in
compliance with the terms of any Credit,
and the Bank's obligation remains so
limited even if the Bank has prepared or
assisted in the preparation of the wording
of any Credit or any Item required to
be presented thereunder and even if the
Bank is otherwise aware of the
underlying transaction giving rise to any
Credit.
4.7 Collateralization Date. If on or prior
to October 1, 2005 (the
"Collateralization Request Deadline") the
Bank delivers written notice to the
Applicant requesting cash collateralization
of the Letter of Credit, then, by
not later than December 15, 2005 (the
"Collateralization Date") the Applicant
shall either (i) deliver to the Bank cash
collateral in an amount equal to the
maximum amount available to be drawn under
the Letter of Credit or such lesser
amount as the Bank may specify in its
demand, such cash collateral to be held,
invested, administered and applied as
provided in Section 5 hereof or (ii)
deliver to the Bank an Acceptable Letter of
Credit in an amount equal to the
maximum amount available to be drawn under
the Letter of Credit. If the notice
referred to in the foregoing sentence is
not delivered to the Applicant on or
prior to the Collateralization Request
Deadline, the Collateralization Date
shall automatically be extended to December
15, 2006, provided that the
obligation described in the preceding
sentence of the Applicant to deliver to
the Bank cash collateral or an Acceptable
Letter of Credit not later than such
extended Collateralization Date shall not
be subject to the Bank's delivery of
any notice to the Applicant. For the
avoidance of doubt, the Bank may present a
sight draft to the issuing bank of any such
Acceptable Letter of Credit
delivered pursuant to this Section 4.7 at
any time within five Business Days
prior to its expiration date.
SECTION 5 CASH COLLATERAL ACCOUNT
5.1 Cash Collateral Account. If the
Applicant becomes obligated to deliver to
the Bank cash collateral in accordance with
Section 4.7, Section 11.2 or Section
12.2, the Applicant shall deposit such cash
collateral into an account to be
called "Wyeth Cash Collateral Account" (the
"Cash Collateral Account")
established in the name of the Applicant
and maintained at the principal London
office of the Bank.
5.2 Grant of Security Interest. As security
for the prompt payment in full when
due of the Liabilities, the Applicant
hereby charges in favor of the Bank all of
the Applicant's right, title and interest
in, to and under (i) the Cash
Collateral Account, (ii) all cash from time
to time on deposit in the Cash
Collateral Account and (iii) the products
and proceeds thereof (together with
the cash from time to time on deposit in
the Cash Collateral Account, the
"Deposit"), all with full title guarantee
and by way of first fixed charge. This
Agreement shall constitute notice to the
Bank of the charge constituted by this
Section 5.2.
5.3 Set-Off. The Bank shall be entitled,
without prior notice to the Applicant,
to set-off or transfer all or part of the
Deposit in or towards satisfaction of
any of the Liabilities when they are due
and payable but unpaid.
5.4 The Deposit. Unless the Bank otherwise
agrees in writing, the Deposit will
be maintained on the basis that it will
mature on the first date on which (a)
there are no Liabilities and (b) the Bank
is under no obligation (actual or
contingent) to issue any Guarantees or
provide other financial accommodation
which, if issued or provided, would give
rise to any Liabilities, provided,
however, that if at the close of business
in London on any date on which any of
the Liabilities shall have become due and
payable any of them remain unpaid, the
Deposit shall then mature to the extent of
an amount equal to the amount of such
Liabilities remaining unpaid (or, if less,
the amount of the Deposit). The Bank
shall be entitled, when the Deposit matures
and at any time thereafter, to
exercise in relation thereto any rights of
set-off, combination or consolidation
to which it is entitled under this
Agreement or by law.
5.5 Restrictions on Assignment. The
Applicant's rights in relation to the Cash
Collateral Account and the Deposit are
incapable of assignment or other disposal
and of being made the subject of any
encumbrance or other security interest save
one in favor of the Bank, and the Applicant
agrees that it will not purport to
assign or otherwise dispose thereof, or
create or permit to subsist any
encumbrance or other security interest on
or in relation thereto, save with the
prior written consent of the Bank.
5.6 Miscellaneous. This Agreement shall
remain in full force and effect as a
continuing arrangement until it terminates
in accordance with Section 13.12. All
payments made by the Applicant to the Bank
at any time after the Bank receives
notice of the purported creation of any
subsequent mortgage, assignment, charge
or other interest affecting the Cash
Collateral Account or the Deposit shall be
treated as having been credited to a new
account of the Applicant and not as
having been applied in reduction of the
Liabilities as at the time of that
notice.
5.7 Investment of Balance in Cash
Collateral Account. The cash balance standing
to the credit of the Cash Collateral
Account may be invested from time to time
in such Permitted Investments as the
Applicant shall determine, which Permitted
Investments shall be held in the name of
the Applicant or the Bank and be under
the control of the Bank, if the Applicant
and the Bank have entered into a
charge agreement pursuant to which (i) the
Bank has a valid and perfected
security interest subject to no equal or
prior lien in such Permitted
Investments and (ii) the Bank is entitled,
at any time and from time to time
after the occurrence and during the
continuance of an Event of Default or
Unmatured Event of Default, in its sole
discretion to elect to liquidate any
such Permitted Investments and exercise,
with respect to the proceeds of any
such liquidation, any rights of set-off,
combination or consolidation to which
it is entitled under this Agreement or by
law with respect to the Deposit,
provided that the Bank shall incur no
liability toward the Applicant or any of
its affiliates merely by reason of
obtaining a rate of return on such Permitted
Investments which is lower than the rate
the Applicant or such affiliates might
otherwise have obtained.
5.8 No Waiver. It is understood and agreed
that no delay on the part of the Bank
in demanding cash collateral pursuant to
Section 11.2 or Section 12.2, and no
demand for an amount of cash collateral
which is less than the maximum amount
thereby authorized, shall be deemed a
waiver of the Bank's right to make
subsequent demand in accordance
therewith.
5.9 Return of Cash Collateral. Unless an
Event of Default or Unmatured Event of
Default shall have occurred and be
continuing, the Bank shall (i) promptly
return to the Applicant cash collateral
received by the Bank pursuant to Section
4.7 if and to the extent that the Letter of
Credit expires unpaid, is returned
to the Bank for cancellation or is reduced,
(ii) promptly return to the
Applicant cash collateral received by the
Bank pursuant to Section 11.2 upon the
Moody's Rating and the S&P Rating
rising to a rating level equal or higher than
the rating level in effect immediately
prior to the first occurrence of a Cash
Collateralization Event and (iii) within
five Business Days after the end of
each fiscal quarter of the Applicant, remit
to the Applicant any amounts on
deposit in the Cash Collateral Account
which exceed the maximum amount available
to be drawn under the Letter of Credit.
5.10 Top-Up Events. If at any time (i) the
Applicant is required hereunder to
make Deposits in the Cash Collateral
Account and (ii) the aggregate amount of
such Deposits is less than the maximum
amount available to be drawn under the
Letter of Credit, then the Bank may demand
that the Applicant deliver to the
Bank, within five Business Days of such
demand, cash collateral in an amount
sufficient so that the aggregate amount of
the Deposits equals the maximum
amount available to be drawn under the
Letter of Credit, such cash collateral to
be held, invested, administered and applied
as provided in this Section 5.
5.11 Further Assurances. The Applicant
agrees that, from time to time upon the
written request of the Bank, the Applicant
will execute and deliver such further
documents and do such other acts and things
as the Bank may reasonably request
in order to fully effect the purposes of
this Section.
SECTION 6 REPRESENTATIONS AND WARRANTIES.
The Applicant represents and warrants
to the Bank that:
(a) Organization, etc. The Applicant
is duly organized or formed, validly
existing and (to
the extent applicable under the laws of the relevant
jurisdiction) in
good standing under the laws of the jurisdiction of its
organization or
formation, and the Applicant is duly qualified and in good
standing as a
foreign entity authorized to do business in each other
jurisdiction
where, because of the nature of its activities or properties,
such
qualification is required, except for such qualifications the
absence
of which would
not reasonably be expected to have a Material Adverse
Effect.
(b) Authorization; No Conflict. The
Applicant's execution and delivery of this
Agreement and
each Request, the Applicant's procurement of the issuance of
Guarantees in
favor of third parties and Letter of Credit for its account
hereunder and
the Applicant's performance of its obligations under this
Agreement and
each Request are within the organizational powers of the
Applicant, have
been duly authorized by all necessary organizational
action, have
received all necessary governmental approval (if any shall be
required), and do not and will not
contravene or conflict with, or result
in or require
the imposition of any lien or security interest under, any
provision of law
or of the charter or by-laws of the Applicant or of any
indenture, loan
agreement or other contract, or any judgment, order or
decree which is
binding upon the Applicant.
(c) Validity and Binding Nature. This
Agreement is, and upon delivery to the
Bank each
Request will be, the legal, valid and binding obligation of the
Applicant,
enforceable against the Applicant in accordance with its terms,
subject to
bankruptcy, insolvency and similar laws of general application
affecting the
rights of creditors generally, and to general principles of
equity.
(d) Approvals. No material
authorization, approval or consent of, or notice to
or filing with,
any governmental or regulatory authority is required to be
made in
connection with the execution and delivery by the Applicant of
this
Agreement or the
issuance of any Guarantee in favor of third parties or any
Letter of Credit
for the account of the Applicant pursuant hereto.
(e) Existing Revolver. Each of the
Representations and Warranties contained in
the 3-Year
Credit Agreement dated as of March 3, 2003, among the
Applicant,
the Lenders
party thereto (including the Bank), the Co-Lead Arrangers and
Joint Book
Managers party thereto, the Syndication Agent party thereto,
the
Co-Documentation
Agents party thereto and JPMorgan Chase Bank, as
Administrative
Agent, as in effect on the date hereof, is true and correct
in all material
respects as if made on the date of this Agreement.
(f) No Default. No Event of Default or
Unmatured Event of Default has occurred
and is
continuing.
(g) Incumbency Certificate. The
Applicant shall provide to the Bank on the date
hereof a
certificate (an "Incumbency Certificate") specifying the name
and
title, and
including a specimen signature, of each representative of the
Applicant who is
authorized to execute a Request on behalf of the Applicant
(each, an
"Authorized Representative"). The Applicant agrees that (i)
unless
previously notified in writing to the contrary by the Applicant,
the
Bank may rely on
such certificate for purposes of determining whether any
Request
delivered to the Bank has been authorized by the Applicant and
(ii)
at any time the
Applicant wishes to designate a new Authorized
Representative,
the Applicant shall deliver to the Bank a new Incumbency
Certificate
including the names, titles and specimen signatures of all
Authorized
Representatives. Any determination by the Bank based on an
Incumbency
Certificate that a Request has been authorized by the Applicant
shall be
conclusive absent manifest error, regardless of a change in
title
of the
Authorized Representative executing such Request.
SECTION 7 FEES. (a) The Applicant shall pay
to the Bank a fee for the issuance
and maintenance of the Letter of Credit at
a rate per annum (the "Fee Rate")
calculated on the maximum amount available
from time to time to be drawn under
the Letter of Credit in accordance with the
following schedule (provided that,
at any time the Applicant delivers to the
Bank (i) pursuant to Section 4.7, an
Acceptable Letter of Credit, or (ii)
pursuant to Section 4.7, Section 11.2 or
Section 12.2 cash collateral in an amount
equal to the maximum amount available
to be drawn under the Letter of Credit, the
Fee Rate shall be the applicable
rate indicated in the column labeled "Cash
Collateralized Fee Rate"):
--------------------------------------------------------------------------------
Moody's Rating
S&P Rating
Fee Rate Cash
Collateralized Fee
Rate
--------------------------------------------------------------------------------
A 2 or above
A or above
0.500% p.a.
0.125% p.a.
--------------------------------------------------------------------------------
A 3
A-
0.750% p.a.
0.150% p.a.
--------------------------------------------------------------------------------
Baa 1
BBB+
1.000% p.a.
0.175% p.a.
--------------------------------------------------------------------------------
Baa 2
BBB
1.250% p.a.
0.200% p.a.
--------------------------------------------------------------------------------
Baa 3 or below BBB- or
below 1.500%
p.a.
0.225% p.a.
--------------------------------------------------------------------------------
Such fees shall be payable on the last
Business Day of each consecutive calendar
quarter, commencing on the first such day
to occur after the date hereof. In
case of a split Moody's and S&P Rating,
the higher rating shall prevail, unless
the difference is two levels or more, in
which case a rating which is one level
above the lower rating shall prevail. The
Fee Rate shall change as and when a
relevant change shall occur in the Moody's
Rating or the S&P Rating.
(b) The Applicant agrees to
pay the Bank all other reasonable fees of the
Bank (at the rates specified by the Bank
from time to time in schedules
delivered by the Bank to the Applicant)
with respect to each Letter of Credit
(including, without limitation, all fees
associated with any amendment to,
drawing under, banker's acceptance pursuant
to, or transfer of a Letter of
Credit), such fees to be payable on demand
by the Bank therefor.
(c) Without limiting the
obligations of the Applicant hereunder, the
Applicant hereby requests that the Bank,
and the Bank agrees to, send invoices
for fees directly to AHP.
SECTION 8 COMPUTATION OF INTEREST AND FEES.
All interest and fees hereunder
shall be computed for the actual number of
days for which such interest or fees
are due elapsed on the basis of a year of
365 days (in the case of interest) or
360 days (in the case of fees). The
interest rate applicable to Guarantee and
Letter of Credit reimbursement obligations
shall change simultaneously with each
change in the Prime Rate.
SECTION 9 MAKING OF PAYMENTS. (a) All
payments of principal of, or interest on,
letter of credit reimbursement obligations,
all payments of fees and all other
payments hereunder shall be made by the
Applicant in Euros and in immediately
available funds to the Bank at its
principal office in Chicago not later than
12:30 P.M., Chicago time, on the date due,
and funds received after that time
shall be deemed to have been received by
the Bank on the next Business Day. If
any payment of principal, interest or fees
falls due on a day which is not a
Business Day, then such due date shall be
extended to the next Business Day, and
additional interest shall accrue and be
payable for the period of such
extension.
(b) The
Applicant irrevocably agrees that the Bank or any affiliate
thereof
may (but neither the Bank nor any such
affiliate shall be obligated to) debit
any deposit account of the Applicant in an
amount sufficient to pay any fee,
reimbursement obligation or other amount
that is due and payable hereunder. The
Bank or the applicable affiliate shall
promptly notify the Applicant of any such
debit (but failure of the Bank or any such
affiliate to do so shall not impair
the effectiveness thereof or impose any
liability on the Bank or such
affiliate).
(c) The
Applicant shall reimburse the Bank for each payment under a
Letter
of Credit in the same currency in which
such payment was made; provided that, if
the Bank so requests (in its sole
discretion), the Applicant shall reimburse the
Bank in United States dollars for any
payment under a Letter of Credit made in a
foreign currency at the rate at which the
Bank could sell such foreign currency
in exchange for United States dollars for
transfer to the place of payment of
such payment or, if there is no such rate,
the United States dollar equivalent
of the Bank's actual cost of settlement.
The Applicant agrees to pay the Bank on
demand in United States dollars such
amounts as the Bank may be required to
expend to comply with any and all
governmental exchange regulations now or
hereafter applicable to the purchase of
foreign currency.
(d) All payments
by the Applicant hereunder shall be made free and clear of
and without deduction for any present or
future taxes, fees, duties,
withholdings or other charges of any nature
whatsoever imposed by any taxing
authority, but excluding franchise taxes
and taxes imposed on or measured by the
Bank's net income or receipts (such
non-excluded items being called "Taxes"). If
any withholding or deduction from any
payment to be made by the B
