CONFORMED COPY
$1,250,000,000
CREDIT AGREEMENT
dated as of
July 2, 2001
among
Ingersoll-Rand Company
The Banks Listed Herein
and
Citibank N.A.
and
Deutsche Banc Alex. Brown Inc.,
as Co-Syndication Agents
and
The Bank of Nova Scotia
and
Bank of Tokyo-Mitsubishi Trust Company,
as Co-Documentation Agents
and
The Chase Manhattan Bank,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.1. Definitions 1
SECTION 1.2. Accounting Terms and Determinations 18
SECTION 1.3. Types of Borrowings 18
SECTION 1.4. Exchange Rates; Reset Dates 19
ARTICLE II THE CREDITS 19
SECTION 2.1. Commitments to Lend 19
SECTION 2.2. Notice of Committed Borrowings 20
SECTION 2.3. Money Market Borrowings 21
SECTION 2.4. Notice to Banks; Funding of Loans 26
SECTION 2.5. Evidence of Debt 27
SECTION 2.6. Maturity of Loans 28
SECTION 2.7. Interest Rates 28
SECTION 2.8. Facility Fee; Utilization Fee 32
SECTION 2.9. Optional Termination or Reduction of
Commitments 32
SECTION 2.10. Mandatory Termination of Commitments;
Mandatory Prepayments 32
SECTION 2.11. Optional Prepayments 33
SECTION 2.12. General Provisions as to Payments 34
SECTION 2.13. Funding Losses 35
SECTION 2.14. Computation of Interest and Fees 36
SECTION 2.15. Withholding Tax Exemption 36
SECTION 2.16. Borrowing Subsidiaries 36
SECTION 2.17. Borrowing Subsidiary Costs 37
ARTICLE III CONDITIONS 38
SECTION 3.1. Effectiveness 38
SECTION 3.2. Borrowings 39
ARTICLE IV REPRESENTATIONS AND WARRANTIES 40
SECTION 4.1. Corporate Existence and Power 40
SECTION 4.2. Corporate and Governmental Authorization;
No Contravention 40
SECTION 4.3. Binding Effect 40
SECTION 4.4. Financial Information; No Material Adverse
Change 41
SECTION 4.5. Litigation 41
SECTION 4.6. Compliance with ERISA 42
SECTION 4.7. Environmental Matters 42
SECTION 4.8. Taxes 43
SECTION 4.9. Subsidiaries 43
SECTION 4.10. Not an Investment Company 43
SECTION 4.11. Full Disclosure 43
ARTICLE V COVENANTS 44
SECTION 5.1. Information 44
SECTION 5.2. Maintenance of Property; Insurance 46
SECTION 5.3. Conduct of Business and Maintenance of
Existence 47
SECTION 5.4. Compliance with Laws 47
SECTION 5.5. Debt 48
SECTION 5.6. Negative Pledge 48
SECTION 5.7. Consolidations, Mergers and Sales of Assets 50
SECTION 5.8. Use of Proceeds 50
SECTION 5.9. Other Cross Defaults or Negative Pledges 51
ARTICLE VI DEFAULTS 51
SECTION 6.1. Events of Default 51
SECTION 6.2. Notice of Default 54
ARTICLE VII THE ADMINISTRATIVE AGENT 54
SECTION 7.1. Appointment and Authorization 54
SECTION 7.2. Administrative Agent and Affiliates 54
SECTION 7.3. Action by the Administrative Agent 54
SECTION 7.4. Consultation with Experts 55
SECTION 7.5. Liability of the Administrative Agent 55
SECTION 7.6. Indemnification 55
SECTION 7.7. Credit Decision 55
SECTION 7.8. Successor Administrative Agent 56
SECTION 7.9. Administrative Agent's Fees 56
SECTION 7.10. Co-Syndication Agents and Co-Documentation
Agents 56
ARTICLE VIII CHANGE IN CIRCUMSTANCES 57
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair 57
SECTION 8.2. Illegality 57
SECTION 8.3. Increased Cost and Reduced Return 58
SECTION 8.4. Base Rate Loans Substituted for Affected
Fixed Rate Loans 60
SECTION 8.5. Substitution of Bank 61
ARTICLE IX MISCELLANEOUS 61
SECTION 9.1. Notices 61
SECTION 9.2. No Waivers 62
SECTION 9.3. Expenses; Documentary Taxes;
Indemnification 62
SECTION 9.4. Sharing of Set-Offs 63
SECTION 9.5. Amendments and Waivers 63
SECTION 9.6. Successors and Assigns 64
SECTION 9.7. Collateral 67
SECTION 9.8. Governing Law; Submission to Jurisdiction 67
SECTION 9.9. Counterparts; Integration 67
SECTION 9.10. Termination of Existing Credit Agreements 67
SECTION 9.11. Loan Conversion/Participations 68
SECTION 9.12. Conversion of Currencies 68
SECTION 9.13. WAIVER OF JURY TRIAL 69
SECTION 9.14. Severability 69
SECTION 9.15. Headings 69
SECTION 9.16. Guarantee Agreement 69
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Assignment and Assumption Agreement
Exhibit G - Borrowing Subsidiary Agreement
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 2, 2001 among
INGERSOLL-RAND COMPANY, the BANKS listed on the signature pages
hereof, THE CHASE MANHATTAN BANK, as Administrative Agent,
CITIBANK N.A., and DEUTSCHE BANC ALEX. BROWN INC., as Co-
Syndication Agents, and THE BANK OF NOVA SCOTIA and BANK OF TOKYO-
MITSUBISHI TRUST COMPANY, as Co-Documentation Agents.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions
The following terms, as used herein, have the following
meanings:
"Absolute Rate Auction" means a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.3.
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.7(b).
"Administrative Agent" means The Chase Manhattan Bank
in its capacity as administrative agent for the Banks hereunder,
and its successors in such capacity.
"Administrative Questionnaire" means, with respect to
each Bank, an administrative questionnaire in the form prepared
by the Administrative Agent and submitted to the Administrative
Agent (with a copy to the Borrower) duly completed by such Bank.
"Affiliate" means, with respect to any Person, any
Person directly or indirectly controlling, controlled by or under
common control with such other Person. As used herein, the term
"control" means possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of
a Person, whether through ownership of voting securities, by
contract or otherwise.
"Agents" means the Administrative Agent, the Co-
Syndication Agents and the Co-Documentation Agents, and "Agent"
means any of the foregoing.
"Agreement" means this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning set forth in
Section 9.12.
"Applicable Creditor" has the meaning set forth in
Section 9.12.
"Applicable Currency" means, as to any particular
payment, Borrowing or Loan, Dollars or the Foreign Currency in
which it is denominated or payable.
"Applicable Lending Office" means, with respect to any
Bank, (i) in the case of its Domestic Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Currency Loans, its Euro-
Currency Lending Office and (iii) in the case of its Money Market
Loans, its Money Market Lending Office.
"Assignee" has the meaning set forth in Section 9.6(c).
"Attributable Debt" means, at any date, the total net
amount of rent required to be paid under a lease during the
remaining term thereof (excluding any renewal term unless such
renewal is at the option of the lessor), discounted from the
respective due dates thereof to such date at 8 3/8% compounded
semi-annually. The net amount of rent required to be paid for
any such period shall be the aggregate of the rent payable by the
lessee with respect to such period after excluding amounts
required to be paid on account of, or measured or determined by,
any variable factor, including, without limitation, the cost-of-
living index and costs of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges and after
excluding any portion of rentals based on a percentage of sales
made by the lessee. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall
be considered so required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
"Available Commitment" means, with respect to any Bank,
an amount equal to the Commitment of such Bank minus the amount
of all outstanding Committed Loans made by such Bank pursuant to
Section 2.1(a) or 2.1(b).
"Bank" means each bank or other financial institution
listed on the signature pages hereof, each Assignee which becomes
a Bank pursuant to Section 9.6(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum
of 1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a
Bank as a Base Rate Loan in accordance with the applicable Notice
of Committed Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee
benefit plan within the meaning of Section 3(3) of ERISA which is
not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.
"Borrower" means Ingersoll-Rand Company, a New Jersey
corporation, and its successors.
"Borrower's 2000 Form 10-K" means the Borrower's annual
report on Form 10-K for 2000, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Borrowing" has the meaning set forth in Section 1.3.
"Borrowing Subsidiary" means, at any time, each of the
Subsidiaries which has been designated as a Borrowing Subsidiary
by the Borrower pursuant to Section 2.16, other than any such
Subsidiary which has ceased to be a Borrowing Subsidiary as
provided in Section 2.16, and which may borrow Committed Loans as
described in Section 2.1.
"Calculation Date" means, with respect to each Foreign
Currency, the last day of each calendar month (or, if such day is
not a Euro-Currency Business Day, the next succeeding Euro-
Currency Business Day), provided that the second Euro-Currency
Business Day preceding any Borrowing of Foreign Currency Loans
shall also be a "Calculation Date" with respect to the Foreign
Currency to be borrowed on such date.
"Co-Documentation Agent" means each of The Bank of Nova
Scotia and Bank of Tokyo-Mitsubishi Trust Company in their
respective capacities as co-documentation agent hereunder, and
their successors in such capacities.
"Commitment" means, with respect to each Bank listed on
the signature pages hereof, the amount set forth opposite the
name of such Bank on the signature pages hereof, and with respect
to any Bank which becomes a party to this Agreement pursuant to
Section 9.6(c), the amount of the Commitment thereby assumed by
such Bank, in each case as such amount may from time to time be
reduced pursuant to Sections 2.9, 2.10 and 9.6(c) or increased
pursuant to Section 9.6(c).
"Committed Loan" means a loan made by a Bank pursuant
to Section 2.1(a) or (b).
"Consolidated Debt" means, at any date, without
duplication, the sum of (i) all amounts which would be set forth
opposite the captions "Loans payable" and "Long-term debt" on a
balance sheet of the Borrower and its Consolidated Subsidiaries
as of such date prepared in accordance with generally accepted
accounting principles consistent with those utilized in preparing
the audited balance sheet of the Borrower and its Consolidated
Subsidiaries referred to in Section 4.4(a) hereof, (ii)
capitalized lease obligations of the Borrower and its
Consolidated Subsidiaries and (iii) the higher of the voluntary
or involuntary liquidation value of any preferred stock (other
than auction-rate preferred stock the higher of the voluntary or
involuntary liquidation value of which does not in the aggregate
exceed $100,000,000) of a Consolidated Subsidiary held on such
date by a Person other than the Borrower or a wholly-owned
Consolidated Subsidiary, but in any event excluding subordinated
debentures issued by the Borrower to one or more Delaware
statutory business trusts and purchased by such trusts with the
proceeds of the issuance of trust preferred securities (the
"Equity-Linked Subordinated Debentures"). The foregoing
definition is based on the understanding of the parties that the
obligations covered by clauses (i) and (ii) above are co-
extensive in all material respects with the obligations covered
by the definition of Debt herein, and the reference to specific
balance sheet captions is for the purpose of affording both
greater simplicity and greater certainty in determining
compliance with the provisions of Section 5.5. If the foregoing
assumption is at some future time determined not to be correct,
and if the Administrative Agent notifies the Borrower that the
Required Banks wish to amend the foregoing definition to include
an obligation covered by the definition of Debt (or if the
Borrower notifies the Administrative Agent that the Borrower
wishes to amend the foregoing definition to exclude an obligation
not covered by the definition of Debt), then the Borrower's
compliance with Section 5.5 shall be determined by including in
(or excluding from, as the case may be) Consolidated Debt the
consolidated amount, determined in accordance with generally
accepted accounting principles, of the obligation in question
until either such notice is withdrawn or this definition is
amended in a manner satisfactory to the Borrower and the Required
Banks.
"Consolidated Net Worth" means, in accordance with
Section 1.2, at any date the consolidated stockholders' equity of
the Borrower and its Consolidated Subsidiaries, exclusive of
adjustments resulting from any accumulated other comprehensive
income, any impairment of tangible assets, or any non-cash
charges other than in respect of goodwill, but including the
amount shown on the balance sheet of the Borrower as of such date
in respect of any Equity-Linked Subordinated Debentures (as such
term is defined in the definition of Consolidated Debt).
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of such
date.
"Conversion Date" means any date on which either (a) an
Event of Default under Section 6.1(f) or (g) has occurred or (b)
the Commitments shall have been terminated and/or the Loans shall
have been declared immediately due and payable pursuant to
Section 6.1.
"Co-Syndication Agent" means each of Citibank N.A., and
Deutsche Banc Alex. Brown Inc. in their respective capacities as
co-syndication agent for the Banks hereunder, and their
successors in such capacities.
"Cross Default" means a provision governing Debt of the
Borrower to the effect that the holder of such Debt (or any
representative of such holder) shall have the right, upon the
giving of any notice and the lapse of any time specified in the
instruments governing such Debt, to accelerate the maturity of
such Debt by reason of (i) an event or condition which permits
acceleration of the maturity of any other Material Debt of the
Borrower or of a Subsidiary or (ii) the failure to pay when due
any amount on any other Material Debt of the Borrower or of a
Subsidiary, in either case whether or not upon the giving of
notice and the lapse of any time (including the lapse of any
applicable grace period) specified in the instruments governing
such other Debt.
"Current Board" has the meaning set forth in Section
6.1(j).
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) 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 (and not services), except trade accounts payable
arising in the ordinary course of business, (iv) all obligations
of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, and (v) all Debt of
others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person; provided that "Debt"
shall include at any date only such obligations and such Debt of
others to the extent such obligations and such Debt of others is
reflected as a liability in the consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of such date (or
would be so reflected if such a balance sheet were prepared as of
such date).
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Dollar Equivalent" means, at any time, (a) as to any
amount denominated in Dollars, the amount thereof at such time,
and (b) as to any amount denominated in a Foreign Currency, the
equivalent amount in Dollars as determined by the Administrative
Agent on the basis of the Exchange Rate, as described in Section
1.4, for the purchase of Dollars with such Foreign Currency on
the most recent Calculation Date for such Foreign Currency.
"Dollars" and "$" mean dollars in lawful currency of
the United States.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in New
York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its
office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank
may hereafter designate as its Domestic Lending Office by notice
to the Borrower and the Administrative Agent.
"Domestic Loans" means Base Rate Loans.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.1.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or 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, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer
under Section 414(b) or (c) of the Internal Revenue Code.
"Euro-Currency Business Day" means any Domestic
Business Day on which commercial banks are open for international
business (including dealings in dollar deposits) in London.
"Euro-Currency Lending Office" means, as to each Bank,
its office, branch or affiliate located at its address set forth
in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Currency Lending Office)
or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Currency Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Currency Loan" means a Committed Loan to be made
by a Bank as a Euro-Currency Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Currency Margin" has the meaning set forth in
Section 2.7(f).
"Euro-Currency Reserve Percentage" has the meaning set
forth in Section 2.7(b).
"Euro Facility Bank" means each Bank party hereto that
(i) has a Euro Facility Sub-Commitment set forth opposite the
name of such Bank on the signature pages hereof or (ii) which
assumes a Euro Facility Sub-Commitment pursuant to Section
9.6(c).
"Euro Facility Sub-Commitment" means, with respect to
each Euro Facility Bank listed on the signature pages hereof, the
amount set forth opposite the name of such Bank on the signature
pages hereof as such Bank's "Euro Facility Sub-Commitment", and
with respect to any Bank which becomes a Euro Facility Bank party
to this Agreement pursuant to Section 9.6(c), the amount of the
Euro Facility Sub-Commitment thereby assumed by such Bank, in
each case as such amount may from time to time be reduced
pursuant to Sections 2.9, 2.10 and 9.6(c) or increased pursuant
to Section 9.6(c).
"Euro Loans" means Loans made by the Euro Facility
Banks pursuant to Section 2.1(b).
"Event of Default" has the meaning set forth in Section
6.1.
"Exchange Rate" means, as to any currency on a
particular date, the rate at which such currency may be exchanged
into Dollars or the relevant Foreign Currency in London on a spot
basis, as set forth on the display page of the Telerate System
applicable to such currency as reasonably determined by the
Administrative Agent. In the event that such rate does not
appear on any Telerate display page, the Exchange Rate with
respect to such currency shall be determined by reference to such
other publicly available service for displaying exchange rates as
may be agreed upon by the Administrative Agent and the Borrower
or, in the absence of such agreement, such Exchange Rate shall
instead be determined by reference to the Administrative Agent's
spot rate of exchange quoted to prime banks in the interbank
market where its foreign currency exchange operations in respect
of the relevant Foreign Currency are then being conducted, at or
about noon, local time, at such date for the purchase of Dollars
with such Foreign Currency (or such Foreign Currency with
Dollars, as applicable), for delivery on a spot basis; provided,
however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted and no other methods
for determining the Exchange Rate can be determined as set forth
above, the Administrative Agent may use any reasonable method it
deems applicable to determine such rate, and such determination
shall be conclusive absent manifest error.
"Existing Credit Agreements" means the 1997 5-Year
Credit Agreement and the 2000 Credit Agreement, collectively.
"Facility Fee Rate" has the meaning set forth in
Section 2.7(f).
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the nearest 1/100th of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted
to The Chase Manhattan Bank, on such day on such transactions as
determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Currency Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest
at the Base Rate pursuant to Section 8.1) or any combination of
the foregoing.
"Foreign Currency" means English pounds sterling, euros
or Japanese Yen.
"Foreign Currency Equivalent" at any time as to any
amount denominated in Dollars, the equivalent amount in the
relevant Foreign Currency or Foreign Currencies as determined by
the Administrative Agent at such time on the basis of the
Exchange Rate for the purchase of such Foreign Currency or
Foreign Currencies with Dollars on the date of determination
thereof.
"Foreign Currency Loans" means Loans denominated in a
Foreign Currency.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Granting Bank" has the meaning set forth in Section
9.6(f).
"Interest Period" means: (1) with respect to each
Euro-Currency Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months and, if
agreeable to all the Banks, nine or twelve months, thereafter, as
the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Currency Business Day shall be extended to the next
succeeding Euro-Currency Business Day unless such Euro-Currency
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Currency
Business Day;
(b) any Interest Period which begins on the last
Euro-Currency 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, subject to clause (c) below, end on the last Euro-
Currency Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 90 days
thereafter; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Domestic Business Day shall be extended
to the next succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending seven
days or one, two, three, six, nine or twelve months thereafter as
the Borrower may elect in accordance with Section 2.3; provided
that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day shall be extended
to the next succeeding Euro-Currency Business Day unless such
Euro-Currency Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Euro-Currency Business Day;
(b) any Interest Period which begins on the last
Euro-Currency 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, subject to clause
(c) below, end on the last Euro-Currency Business Day of a calendar
month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing,
the period commencing on the date of such Borrowing and ending
such number of days thereafter as the Borrower may elect in
accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Currency Business Day shall be extended to
the next succeeding Euro-Currency Business Day; and
(b) no Interest Period shall end after the Termination
Date.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, or any successor statute.
"Judgment Currency" has the meaning set forth in
Section 9.12.
"Level I Status" exists, subject to the provisions of
Section 2.7(f) hereof, at any date if, at such date, the
Borrower's outstanding senior unsecured long-term debt securities
are rated A or higher by S&P or A2 or higher by Moody's.
"Level II Status" exists, subject to the provisions of
Section 2.7(f) hereof, at any date if (i) Level I Status does not
exist on such date and (ii) the Borrower's outstanding senior
unsecured long-term debt securities are rated A- or higher by S&P
or A3 or higher by Moody's.
"Level III Status" exists, subject to the provisions of
Section 2.7(f) hereof, at any date if (i) neither Level I Status
nor Level II Status exists on such date and (ii) the Borrower's
outstanding senior unsecured long-term debt securities are rated
BBB+ or higher by S&P or Baal or higher by Moody's.
"Level IV Status" exists, subject to the provisions of
Section 2.7(f) hereof, at any date if (i) none of Level I Status,
Level II Status and Level III Status exists on such date and (ii)
the Borrower's outstanding senior unsecured long-term debt
securities are rated BBB or higher by S&P or Baa2 or higher by
Moody's.
"Level V Status" exists, subject to the provisions of
Section 2.7(f) hereof, at any date if (i) none of Level I Status
through Level IV Status exists on such date and (ii) the
Borrower's outstanding senior unsecured long-term debt securities
are rated BBB- or higher by S&P or Baa3 or higher by Moody's.
"Level VI Status" exists at any date if none of Level I
Status through Level V Status exists on such date.
"LIBOR Auction" means a solicitation of Money Market
Quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 2.3.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset. For the purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Currency Loan or
a Money Market Loan and "Loans" means Domestic Loans or Euro-
Currency Loans or Money Market Loans or any combination of the
foregoing.
"Loan Documents" means, collectively, this Agreement
and any Notes.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.7(b).
"Material Adverse Effect" means a material adverse
effect on the business, financial position or results of
operations or property of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
"Material Debt" means (i) any Public Debt and (ii) any
Debt of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions after
the date hereof, in an aggregate principal amount exceeding
$50,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in an amount which, if the
Plan then terminated, would have a Material Adverse Effect,
taking into account all members of the ERISA Group.
"Material Subsidiary" means (i) The Torrington Company,
a Delaware corporation, Schlage Lock Company, a California
corporation, Clark Equipment Corporation, a Delaware corporation,
Hussmann International, Inc., a Delaware corporation, Thermo King
Corporation, a Delaware corporation, and their respective
successors and assigns, (ii) at any date, any other Restricted
Subsidiary which on such date is encompassed by the definition of
a "significant subsidiary" contained as of the date hereof in
Regulation S-X of the Securities and Exchange Commission and
(iii) in any event, any Borrowing Subsidiary.
"Money Market Absolute Rate" has the meaning set forth
in Section 2.3(d).
"Money Market Absolute Rate Loan" means a loan to be
made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank,
its Domestic Lending Office or such other office, branch or
affiliate of such Bank as it may hereafter designate as its Money
Market Lending Office by notice to the Borrower and the
Administrative Agent; provided that any Bank may from time to
time by notice to the Borrower and the Administrative Agent
designate separate Money Market Lending Offices for its Money
Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as
the context may require.
"Money Market LIBOR Loan" means a loan to be made by a
Bank pursuant to a LIBOR Auction (including such a loan bearing
interest at the Base Rate pursuant to Section 8.1(a)).
"Money Market Loan" means a Money Market LIBOR Loan or
a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.3(d).
"Money Market Quote" means an offer by a Bank to make a
Money Market Loan in accordance with Section 2.3.
"Money Market Quote Request" has the meaning set forth
in Section 2.3(b).
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, on any specified property, any
mortgage, lien, pledge, charge or other security interest or
encumbrance of any kind in respect of such property.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group is then making or
accruing an obligation to make contributions.
"1997 5-Year Credit Agreement" means the $750,000,000
Credit Agreement dated as of October 21, 1997 among the Borrower,
the banks listed on the signature pages thereof, The Chase
Manhattan Bank, as administrative agent, and Morgan Guaranty
Trust Company, as syndication agent.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and "Note" means
any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.2) or a Notice of Money Market
Borrowing (as defined in Section 2.3(f)).
"Obligations" means the unpaid principal of and
interest on (including interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or
any Borrowing Subsidiary, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the Borrower
or any Borrowing Subsidiary to the Administrative Agent or to any
Bank, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any
other Loan Document or any other document made, delivered or
given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any
Bank that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section
9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan (other than a Multiemployer Plan) which is covered by Title
IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and is maintained, or
contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group.
"Prime Rate" means that rate of interest from time to
time announced by The Chase Manhattan Bank at its principal
office, presently located at 270 Park Avenue, New York, New York
10017, as its prime rate.
"Principal Property" means any manufacturing plant or
other manufacturing facility of the Borrower or any Restricted
Subsidiary, as the case may be, which plant or facility is
located within the United States of America, except any such
plant or facility which the Borrower's Board of Directors by
resolution declares is not of material importance to the total
business conducted by the Borrower and its Restricted
Subsidiaries.
"Public Debt" means (i) the Borrower's 6.875% Notes due
2003; (ii) the Borrower's 9.00% Debentures due 2021; (iii) the
Borrower's 7.20% Debentures due 2025; (iv) the Borrower's 6.48%
Redeemable Debentures due 2025; (v) the Borrower's 6.391%
Debentures due 2027; (vi) the Borrower's 6.443% Debentures due
2027; (vii) the Borrower's Medium Term Notes due 2001-2028 at an
average rate of 6.48%; (viii) the Clark Medium Term Notes due
2023 at an average rate of 8.22%; (ix) the 6.75% Hussmann
International, Inc. Senior Notes due 2008; (x) the Borrower's
5.75% Notes due 2003; (xi) the Borrower's 5.80% Notes due 2004;
and (xii) the Borrower's 6.25% Notes due 2006.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results in no
net increase in the outstanding principal amount of Committed
Loans made by any Bank.
"Register" has the meaning set forth in Section 9.6(g).
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Required Banks" means at any time Banks having at
least 51% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding Loans evidencing
at least 51% of the aggregate unpaid principal amount of the
Loans.
"Reset Date" shall have the meaning set forth in
Section 1.4.
"Restricted Subsidiary" means any Subsidiary, excluding
any Subsidiary the greater part of the operating assets of which
are located or the principal business of which is carried on
outside of the United States of America.
"Revolving Credit Period" means the period from and
including the Effective Date to but excluding the Termination
Date.
"Sale and Leaseback Transaction" means an arrangement
with any Person for the leasing by the Borrower or a Restricted
Subsidiary (except for temporary leases for a term of not more
than three years and, in the case of a Restricted Subsidiary, a
lease to the Borrower or another Restricted Subsidiary) of any
Principal Property (whether now owned or hereafter acquired),
which Principal Property has been or is to be sold or transferred
by the Borrower or such Restricted Subsidiary to such Person.
"S&P" means Standard & Poor's Ratings Services.
"SPC" has the meaning set forth in Section 9.6(f).
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
"Termination Date" means the fifth anniversary of the
Effective Date or, if such day is not a Euro-Currency Business
Day, the next preceding Euro-Currency Business Day.
"364-Day Credit Agreement" means that certain
$1,250,000,000 364-Day Revolving Credit Agreement, dated as of
the date hereof, among the Borrower, the banks listed on the
signature pages thereof, The Chase Manhattan Bank, as
administrative agent, Citibank N.A., and Deutsche Banc Alex.
Brown Inc., as co-syndication agents, and The Bank of Nova Scotia
and Bank of Tokyo-Mitsubishi Trust Company, as co-documentation
agents, as the same may be amended, supplemented or otherwise
modified from time to time.
"364-Day Credit Facility" means the $1,250,000,000
credit facility contemplated by the 364-Day Credit Agreement.
"2000 Credit Agreement" means the $1,250,000,000 Credit
Agreement dated as of September 6, 2000 among the Borrower, the
banks listed on the signature pages thereof, Morgan Guaranty
Trust Company of New York, as syndication agent, Citibank, N.A.
and Deutsche Bank AG New York Branch, as co-documentation agents
and The Chase Manhattan Bank, as administrative agent.
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value
of all accrued benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined
on the basis of a Plan termination 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 any other Person under Title IV of ERISA.
SECTION 1.2. Accounting Terms and Determinations
Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in
effect from time to time, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks; provided that, (x) if the Borrower
notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article V to eliminate the effect of any
change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Banks wish to amend
Article V for such purpose), then the Borrower's compliance with
such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and
the Required Banks, and (y) for purposes of determining
Consolidated Net Worth, generally accepted accounting principles
as in effect at the time of and as used to prepare the financial
statements referred to in Section 4.4(a) hereof shall be used for
such determination, notwithstanding any change in such generally
accepted accounting principles after the date of such financial
statements.
SECTION 1.3. Types of Borrowings
The term "Borrowing" denotes the aggregation of
Loans of one or more Banks to be made to the Borrower or any
Borrowing Subsidiary pursuant to Article II on a single date and
for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g, a "Euro-Currency Borrowing"
is a Borrowing comprised of Euro-Currency Loans) or by reference
to the provisions of Article II under which participation therein
is determined (i.e., a "Committed Borrowing" is a Borrowing under
Section 2.1 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.3 in which the Bank participants are determined
on the basis of their bids in accordance therewith).
SECTION 1.4. Exchange Rates; Reset Dates
(a) At approximately 10:00 A.M., New York City
time, or as close to such time as is reasonably practicable, on
each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with
respect to euros and with respect to each other Foreign Currency
in which any Loan shall be outstanding and (ii) give notice
thereof to the Banks and the Borrower. The Exchange Rates so
determined shall become effective on the first Euro-Currency
Business Day immediately following the relevant Calculation Date
(a "Reset Date") and shall remain effective until the next
succeeding Reset Date.
(b) At approximately 10:00 A.M., New York City time,
or as close to such time as is reasonably practicable,
on each Reset Date,the Administrative Agent shall
(i) determine the aggregate amount of the Dollar
Equivalents of the principal amounts of the Foreign
Currency Loans then outstanding (after giving effect to any
Foreign Currency Loans made or repaid on such date) and (ii)
notify the Borrower of the results of such determination.
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend
(a) During the Revolving Credit Period, each Bank
severally agrees, on the terms and conditions set forth in this
Agreement, to make loans in Dollars to the Borrower or any
Borrowing Subsidiary pursuant to this Section from time to time
in amounts such that the aggregate principal amount of Committed
Loans by such Bank at any one time outstanding shall not exceed
the amount of its Commitment. Each Borrowing under this Section
shall be in an aggregate principal amount of $10,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may
be in the aggregate amount available in accordance with Section
3.2(b)) and shall be made from the several Banks ratably in
proportion to their respective Available Commitments. Within the
foregoing limits, the Borrower or any Borrowing Subsidiary may
borrow under this Section, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time during the
Revolving Credit Period under this Section.
(b) Sub-Commitments to Lend in Euros. During the Revolving
Credit Period, each Euro Facility Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make loans
in euros ("Euro-Loans") to the Borrower or any Borrowing
Subsidiary pursuant to this Section from time to time in amounts
such that (i) the aggregate principal amount of Committed Loans
by such Bank at any one time outstanding shall not exceed the
amount of its Commitment, and (ii) the Dollar Equivalent of the
aggregate principal amount of Euro Loans by such Euro Facility
Bank at any one time outstanding shall not exceed its Euro
Facility Sub-Commitment. All Euro Loans shall be Euro-Currency
Loans. Each Borrowing under this Section shall be in an
aggregate principal amount of the Foreign Currency Equivalent of
$10,000,000 or any larger multiple of the Foreign Currency
Equivalent of $1,000,000 (except that any such Borrowing may be
in the aggregate amount available in accordance with Section
3.2(b)) and shall be made from the several Euro Facility Banks
ratably in proportion to their respective Euro Facility Sub-
Commitments. Within the foregoing limits, the Borrower or any
Borrowing Subsidiary may borrow under this Section, repay, or to
the extent permitted by Section 2.11, prepay Loans and reborrow
at any time during the Revolving Credit Period under this
Section. It is expressly understood and agreed among the parties
hereto that any and all Euro-Loan Borrowings made pursuant to
Section 2.1(b) hereof shall constitute utilizations of the Euro
Facility Banks' Commitments hereunder and shall reduce the
Available Commitment of the Euro Facility Banks accordingly.
SECTION 2.2. Notice of Committed Borrowings
The Borrower or any Borrowing Subsidiary, as
applicable, shall give the Administrative Agent notice (a "Notice
of Committed Borrowing") (w) at its New York address not later
than 10:00 A.M. (New York City time) on the date of each Base
Rate Borrowing, (x) at its New York address not later than 10:00
A.M. (New York City time) on the third Euro-Currency Business Day
before each Euro-Currency Borrowing denominated in Dollars, and
(y) in the case of Euro Loans, at its London address not later
than 10:00 A.M. (London time) on the date of each such Euro-
Currency Borrowing denominated in euros, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-
Currency Business Day in the case of a Euro-Currency Borrowing,
(b) the aggregate amount of such Borrowing and whether
such Borrowing is to be denominated in Dollars or in Euros,
(c) in the case of Loans to be made in Dollars, whether the
Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Currency Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration
of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
SECTION 2.3. Money Market Borrowings
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.1, the Borrower may, as set
forth in this Section, request the Banks during the Revolving
Credit Period to make offers to make Money Market Loans to the
Borrower. The Banks may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation
to, accept any such offers in the manner set forth in this
Section. The Borrower may request the Banks to make Money Market
Loans denominated in Dollars or in any Foreign Currency;
provided, however, that at no time may the Borrower request the
Banks to make Money Market Loans denominated in a Foreign
Currency so as to cause the sum of (i) the Dollar Equivalent of
the aggregate amount of Money Market Loans denominated in Foreign
Currencies, plus (ii) the Dollar Equivalent of the aggregate
amount of Money Market Loans (as defined in the 364-Day Credit
Facility) denominated in Foreign Currencies under the 364-Day
Credit Facility, to exceed $500,000,000.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it
shall transmit to the Administrative Agent by facsimile
transmission a Money Market Quote Request substantially in the
form of Exhibit B hereto (a "Money Market Quote Request") so as
to be received no later than 10:00 A.M. (New York City time) at
the Administrative Agent's New York facsimile number, and, in the
case of Money Market Loans to be denominated in a Foreign
Currency, so as to be received no later than 10:00 A.M. (London
time) at the Administrative Agent's London facsimile number on
(x) the fourth Euro-Currency Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Currency Business Day in the case of a LIBOR
Auction or in the case of an Absolute Rate Auction to be
denominated in a Foreign Currency or a Domestic Business
Day in the case of an Absolute Rate Auction to be
denominated in Dollars,
(ii) the aggregate amount of such Borrowing,
which shall be subject to the provisions of Section 2.3(a)
and shall be $5,000,000 (or the Foreign Currency Equivalent
thereof, in the case of Money Market Loans to be denominated
in a Foreign Currency) or a larger multiple of $1,000,000
(or the Foreign Currency Equivalent thereof, in the case
of Money Market Loans to be denominated in a Foreign Currency),
(iii)the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period,
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market Absolute
Rate; and
(v) the Applicable Currency in which the proposed
Borrowing is to be denominated.
The Borrower may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request. No Money Market Quote Request shall be given within
five Euro-Currency Business Days (or such other number of days as
the Borrower and the Administrative Agent may agree) of any other
Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon
receipt of a Money Market Quote Request, the Administrative
Agent shall send to the Banks by facsimile transmission
an invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans
to which such Money Market Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market
Loans in response to any Invitation or Money Market
Quotes. Each Money Market Quote must comply with
the requirements of this subsection (d) and must be
submitted to the Administrative Agent by facsimile transmission
at its offices specified in or pursuant to Section 9.1 not later
than (x) 9:30 A.M. (New York City time or London time, as
applicable) on the third Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y)
9:30 A.M. (New York City time or London time, as applicable) on
the first Euro-Currency Business Day prior to the proposed date
of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of
the terms of the offer or offers contained therein not later than
15 minutes prior to the deadline for the other Banks. Subject to
Articles III and VI, any Money Market Quote so made shall be
irrevocable except with the written consent of the Administrative
Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially
the form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x)must be $5,000,000 (or the Foreign Currency
Equivalent thereof,in the case of Money Market Loans to be
denominated in a Foreign Currency) or a larger multiple of
$1,000,000 (or the Foreign Currency Equivalent thereof, in
the case of Money Market Loans to be denominated in a Foreign
Currency), (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount
of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above
or below the applicable London Interbank Offered Rate (the
"Money Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th
of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate
of interest per annum (specified to the nearest 1/10,000th
of 1%)(the "Money Market Absolute Rate") offered for each
such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by
the quoting Bank with respect to each Interest Period specified
in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(E) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with subsection
(d) and (y) of any Money Market Quote that amends, modifies or
is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Administrative Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Administrative
Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money
Market Quote Request, (B) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the case
may be, so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which offers
in any single Money Market Quote may be accepted.
(F) Acceptance and Notice by Borrower. Not later than
10:30A.M. (New York City time or London time, as applicable) on
(x) the third Euro-Currency Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed
and shall have notified to the Banks not later than the date
of the Money Market Quote Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Administrative Agent
of its acceptance or non-acceptance of the offers so notified
to it pursuant to subsection
(e) In the case of acceptance, such notice (a
"Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Money Market Quote
in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 (or the Foreign Currency Equivalent
thereof, in the case of Money Market Loans to be denominated
in a Foreign Currency) or a larger multiple of $1,000,000
(or the Foreign Currency Equivalent thereof, in the case of
Money Market Loans to be denominated in a Foreign Currency),
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market Absolute
Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement (including the
requirements of the third sentence of Section 2.3(a).
(g) Allocation by Administrative Agent. If offers
are made by two or more Banks with the same Money Market
Margins or Money Market Absolute Rates, as the case may be,
for a greater aggregate principal amount than the amount
in respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks
as nearly as possible (in multiples of $1,000,000 (or the
Foreign Currency Equivalent thereof, in the case of Money
Market Loans to be denominated in a Foreign Currency),
as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of
manifest error.
SECTION 2.4. Notice to Banks; Funding of Loans
(a) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter
be revocable by the Borrower or Borrowing Subsidiary, as
the case may be.
(b) Not later than 12:00 Noon (New York City time
or London time, as applicable) on the date of each Borrowing,
each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of
such Borrowing, in Federal or other funds immediately
available in New York City or in London, as applicable,
to the Administrative Agent at its address specified in or
pursuant to Section 9.1 (or, in the case of any Borrowing
denominated in a Foreign Currency, at such other address
as the Administrative Agent may specify from time to time
by written notice to the Borrower and the Banks). Unless the
Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied, the
Administrative Agent will make the funds so received from the
Banks available in like funds to the Borrower or the Borrowing
Subsidiary, as the case may be, at the Administrative Agent's
aforesaid address. If any Bank makes a new Loan hereunder on a
day on which the Borrower or the Borrowing Subsidiary, as the
case may be, is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new
Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by such Bank to the
Administrative Agent as provided in subsection (b), or remitted
by the Borrower or the Borrowing Subsidiary to the
Administrative Agent as provided in Section 2.12,
as the case may be.
(c) Unless the Administrative Agent shall have
received notice from a Bank prior to the date (or, if a Base
Rate Borrowing, the time) of any Borrowing that such Bank
will not make available to the Administrative Agent such
Bank's share of such Borrowing, the Administrative Agent
may assume that such Bank has made such share available
to the Administrative Agent on the date of such Borrowing
in accordance with subsection (b) of this Section 2.4
and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower or the Borrowing
Subsidiary, as the case may be, on such date a corresponding
amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank
and the Borrower or the Borrowing Subsidiary severally agree to
repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower or
the Borrowing Subsidiary until the date such amount is repaid to
the Administrative Agent, at a rate per annum equal to (x) in the
case of amounts denominated in Dollars, the daily average Federal
Funds Rate, and (y) in the case of amounts denominated in a
Foreign Currency, the daily average cost of funding such amount
(as determined by the Administrative Agent). A certificate of
the Administrative Agent submitted to any Bank with respect to
any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.5. Evidence of Debt
(a) Each Bank shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrower or any Borrowing Subsidiary to such Bank resulting
from the Loan of such Bank from time to time, including the
amounts of principal and interest payable and paid to such Bank
from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(g), and a subaccount therein for each
Bank, in which shall be recorded (i) the amount of each Loan made
hereunder and each Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become
due and payable from the Borrower and any Borrowing Subsidiary to
each Bank hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower or any
Borrowing Subsidiary and each Bank's share thereof.
(c) The entries made in the Register and the accounts
of each Lender maintained pursuant to subsection 2.5(b) shall,
to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of
the Borrower and any Borrowing Subsidiary therein recorded;
provided, however, that the failure of any Bank or the
Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect
the obligation of the Borrower or any Borrowing Subsidiary
to repay (with applicable interest) the Loan made to such
Borrower or Borrowing Subsidiary by such Bank
in accordance with the terms of this Agreement.
(d) The Borrower and all Borrowing Subsidiaries
agree that, upon the request to the Administrative Agent by
any Bank, the Borrower or such Borrowing Subsidiary will
execute and deliver to such Bank a single Note of the
Borrower or such Borrowing Subsidiary, as the case may be,
evidencing the Loan of such Bank.
SECTION 2.6. Maturity of Loans
Each Loan included in any Borrowing shall mature,
and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.7. Interest Rates
(a) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal
to the Base Rate for such day. Such interest shall be payable
for each Interest Period on the last day thereof. Any overdue
principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each Euro-Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the
Euro-Currency Margin plus the applicable Adjusted London
Interbank Offered Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months
after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upward, if necessary, to the next
higher 1/100th of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.0 minus the Euro-Currency
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Interest Period (other than any seven day Interest Period) means
the rate appearing on the relevant page of the Telerate screen
(or on any successor or substitute page of such service, or any
successor to or substitute for such service, as determined by the
Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to deposits in the
Applicable Currency in the London interbank market) at
approximately 11:00 A.M., London time, two Euro-Currency Business
Days prior to the commencement of such Interest Period, as the
rate for deposits in the Applicable Currency with a maturity
comparable to such Interest Period. In the event that such rate
is not available at such time for any reason or in the case of
any seven day Interest Period, and, in any event, in the case of
sterling-denominated Loans, then the "London Interbank Offered
Rate" with respect to such Interest Period shall be the rate
(rounded upwards, if necessary, to the next 1/100 of 1%) at which
deposits of $5,000,000 (or the Foreign Currency Equivalent
thereof, in the case of a Foreign Currency) and for a maturity
comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 A.M., London time, two Euro-Currency Business Days prior to
the commencement of such Interest Period.
"Euro-Currency Reserve Percentage" means for any day as
applied to a Euro-Currency Loan, the aggregate (without
duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves
under any regulations of the Board of Governors of the Federal
Reserve System of the United States (or any successor) (the
"Board") or any other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). The
Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in
the Euro-Currency Reserve Percentage. The Banks acknowledge and
agree that the Euro-Currency Reserve Percentage on the date
hereof is 0%.
(c) Any overdue principal of or interest on any
Euro-Currency Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof
was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the higher of
(i) the sum of the Euro-Currency Margin plus the Adjusted
London Interbank Offered Rate applicable to such Loan and
(ii) the rate applicable to Base Rate Loans for such day.
(d) Each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per
annum equal to the sum of the London Interbank Offered
Rate for such Interest Period (determined in accordance
with Section 2.7(b) as if the related Money Market LIBOR
Borrowing were a Committed Euro-Currency Borrowing) plus
(or minus) the Money Market Margin quoted by the Bank
making such Loan in accordance with Section 2.3. Each Money
Market Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Money Market Absolute
Rate quoted by the Bank making such Loan in accordance with
Section 2.3. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the
first day thereof. Any overdue principal of or interest on any
Money Market Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2%
plus the Prime Rate for such day.
(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The
Administrative Agent shall give prompt notice to the
Borrower and the participating Banks of each rate of
interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
(f) Each of "Euro-Currency Margin" and "Facility
Fee Rate" means, for any day, the percentage set forth below
in the row opposite such term and in the column corresponding
to the "Level" status in existence on such day:
Level I Level II Level III Level IV Level V Level V
Status Status Status Status Status Status
Euro- .170% .210% .325% .475% .575% .675%
Curren-
cy
Margin
Facility
Fee .080% .090% .125% .150% .175% .200%
Rate
; provided that, (i) if the Borrower's lower rating is two or
more Levels lower than the Borrower's higher rating, the Euro-
Currency Margin and Facility Fee Rate shall be determined by
reference to the Level corresponding to the rating which is one
above the lower of the two ratings, (ii) if only one rating
exists, the Borrower may have its debt rated by a substitute
nationally-recognized rating agency reasonably acceptable to the
Administrative Agent; until the issuance of such rating, the Euro-
Currency Margin and Facility Fee Rate shall be determined by
reference to the Level with the rating which is one Level lower
than the Level corresponding to the available rating, and (iii)
if any rating shall be changed (other than as a result of a
change in the rating system of the applicable rating agency),
such change shall be effective as of the date on which it is
first announced by the rating agency making such change. Each
such change in the Euro-Currency Margin or the Facility Fee Rate
shall apply to all outstanding Euro-Currency Loans and to
Facility Fees accruing during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the
rating system of any rating agency shall change, the parties
hereto shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed
rating system.
SECTION 2.8. Facility Fee; Utilization Fee
(a) The Borrower shall pay to the Administrative
Agent for the account of the Banks ratably in proportion to their
Commitments a facility fee at the Facility Fee Rate. Such
facility fee shall accrue (i) from and including the date of
receipt by the Administrative Agent of counterparts of this
Agreement duly executed by all the parties hereto to but
excluding the Termination Date (or earlier date of termination of
the Commitments in their entirety), on the daily aggregate amount
of the Commitments (whether used or unused) and (ii) from and
including the Termination Date or such earlier date of
termination to but excluding the date the Loans shall be repaid
in their entirety, on the daily aggregate outstanding principal
amount of the Loans. Accrued fees under this Section shall be
payable quarterly in arrears on each March 31, June 30, September
30 and December 31, and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans
shall be repaid in their entirety).
(b) The Borrower shall pay to the Administrative Agent
for the account of the Banks ratably in proportion to their
Commitments a utilization fee equal to 0.10% per annum on the
outstanding Loans for each day on which the Loans outstanding
exceed 50% of the aggregate Commitments on such day (or,
if such day is after the Termination Date (or earlier date
of termination of the Commitments in their entirety), the
aggregate Commitments on the Termination Date (or such earlier
date of termination)).
SECTION 2.9. Optional Termination or Reduction of Commitments
During the Revolving Credit Period, the Borrower
may, upon at least three Domestic Business Days' notice to the
Administrative Agent (which shall give prompt notice thereof to
each Bank), (i) terminate the Commitments at any time, if no
Loans are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 (or the
Foreign Currency Equivalent thereof, in the case of Euro Loans)
or any multiple of $5,000,000 (or the Foreign Currency Equivalent
thereof, in the case of Euro Loans) in excess thereof, the
aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. Mandatory Termination of Commitments;
Mandatory Prepayments
(a) Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date, and any
Loans then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
(b) Mandatory Prepayments. (i) If, on any day,
the Dollar Equivalent of all outstanding Loans exceeds the
aggregate Commitments on such date, the Borrower and any
Borrowing Subsidiaries shall, within five Euro-Currency
Business Days, prepay sufficient outstanding Loans in an
aggregate principal amount (together with interest accrued
to the date of such prepayment on the principal so prepaid
and any amounts payable under Section 2.13 in connection
therewith) such that, after giving effect thereto, the
Dollar Equivalent of all outstanding Loans does not exceed
the aggregate Commitments on such date.
(ii) If, on any day, the Dollar Equivalent of all
outstanding Euro Loans exceeds the aggregate Euro Facility Sub-
Commitments on such date, the Borrower and any Borrowing
Subsidiaries shall, within five Euro-Currency Business Days,
prepay sufficient outstanding Euro Loans in an aggregate
principal amount (together with interest accrued to the date of
such prepayment on the principal so prepaid and any amounts
payable under Section 2.13 in connection therewith) such that,
after giving effect thereto, the Dollar Equivalent of all
outstanding Euro Loans does not exceed the aggregate Euro
Facility Sub-Commitments on such date.
SECTION 2.11. Optional Prepayments
(a) The Borrower or any Borrowing Subsidiary may
(i) upon at least one Domestic Business Day's notice to the
Administrative Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate pursuant
to Section 8.1) and (ii) upon at least three Euro-Currency
Business Days' notice to the Administrative Agent, subject to
Section 2.13, prepay any Euro-Currency Borrowing, in whole at any
time, or from time to time in part, by paying the principal
amount to be prepaid together with accrued interest thereon to
the date of prepayment; provided that any such partial prepayment
shall be in the amount of $25,000,000 (or the Foreign Currency
Equivalent thereof, in the case of Foreign Currency Loans) or any
multiple of $5,000,000 (or the Foreign Currency Equivalent
thereof, in the case of Foreign Currency Loans) in excess
thereof. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) Except as provided in clause (i) of Section
2.11(a), the Borrower and any Borrowing Subsidiaries may not
prepay all or any portion of the principal amount of any
Money Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant
to this Section, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank's
ratable share (if any)of such prepayment and such notice
shall not thereafter be revocable by the Borrower or the
Borrowing Subsidiary, as the case may be.
SECTION 2.12. General Provisions as to Payments
(a) The Borrower and any Borrowing Subsidiary, as
applicable, shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other
funds immediately available in New York City, to the
Administrative Agent at its New York address referred to in
Section 9.1, provided that any such payments made in respect of
Euro Loans or other Loans denominated in a Foreign Currency shall
be made not later than 12:00 Noon (London time) on the date when
due, in funds immediately available in London, to the
Administrative Agent at its London address referred to in Section
9.1. The Administrative Agent will promptly distribute to each
Bank its ratable share of each such payment received by the
Administrative Agent for the account of the Banks. Whenever any
payment of principal of, or interest on, the Domestic Loans or of
fees shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Currency Loans shall be
due on a day which is not a Euro-Currency Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-
Currency Business Day unless such Euro-Currency Business Day
falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Currency
Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a
Euro-Currency Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Currency Business Day,
provided that in the case of Money Market Loans denominated in
Dollars, whenever any payment of principal of, or interest on,
such Dollar-denominated Money Market Loans shall be due on a day
which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic
Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Administrative Agent shall have
received notice from the Borrower or the relevant Borrowing
Subsidiary prior to the date on which any payment is due to
the Banks hereunder that the Borrower or such Borrowing
Subsidiary will not make such payment in full, the
Administrative Agent may assume that the Borrower or such
Borrowing Subsidiary has made such payment in full to the
Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal
to the amount then due such Bank. If and to the extent that the
Borrower or such Borrowing Subsidiary shall not have so made such
payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together
with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such
amount to the Administrative Agent, at a rate per annum equal to
(x) in the case of amounts denominated in Dollars, the daily
average Federal Funds Rate, and (y) in the case of amounts
denominated in a Foreign Currency, the daily average cost of
funding such amount (as determined by the Administrative Agent).
SECTION 2.13. Funding Losses
If the Borrower or any Borrowing Subsidiary makes
any payment of principal with respect to any Fixed Rate Loan
(pursuant to Section 2.11, Article VI or VIII or otherwise, but
not pursuant to Section 8.2) on any day other than the last day
of the Interest Period applicable thereto, if the Borrower or any
Borrowing Subsidiary fails to borrow any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section
2.4(a) or if the Borrower or any Borrowing Subsidiary fails to
prepay any Fixed Rate Loans after notice has been given to any
Bank in accordance with Section 2.11(c), the Borrower or such
Borrowing Subsidiary shall reimburse each Bank within 30 days
after demand for any resulting loss or expense incurred by it (or
by an existing or prospective Participant in the related Loan),
including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or
failure to borrow or prepay, provided that such Bank shall have
delivered to the Borrower or such Borrowing Subsidiary a
certificate setting forth the calculation of the amount of such
loss or expense, which certificate shall be conclusive in the
absence of manifest error.
SECTION 2.14. Computation of Interest and Fees
Interest based on the Prime Rate and interest and
fees based on amounts denominated in English pounds sterling
hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last
day). All other interest and fees shall be computed on the basis
of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day).
SECTION 2.15. Withholding Tax Exemption
On or prior to the Effective Date, each Bank that is
not incorporated under the laws of the United States of America
or a state thereof agrees that it will deliver to each of the
Borrower and the Administrative Agent two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224 (or a
successor form), certifying in either case that such Bank is
entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal
income taxes. Each Bank which so delivers a Form 1001 or 4224
(or a successor form) further undertakes to deliver to each of
the Borrower and the Administrative Agent two additional copies
of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the
Administrative Agent, in each case certifying that such Bank is
entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal
income taxes, unless an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with
respect to it and such Bank advises the Borrower and the
Administrative Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal
income tax.
SECTION 2.16. Borrowing Subsidiaries
On or after the Effective Date, the Borrower may
designate any wholly owned Subsidiary of the Borrower as a
Borrowing Subsidiary by delivery to the Administrative Agent of
(i) a Borrowing Subsidiary Agreement executed by such Subsidiary
and the Borrower, substantially in the form of Exhibit G hereto
and (ii) a favorable written opinion (addressed to the
Administrative Agent and the Banks) of counsel of such Subsidiary
or Subsidiaries (which opinion shall be reasonably satisfactory
to the Administrative Agent). Upon delivery of the above-
mentioned documents, such Subsidiary shall for all purposes of
this Agreement be a Borrowing Subsidiary and a party to this
Agreement. Promptly following receipt of any Borrowing
Subsidiary Agreement, the Administrative Agent shall send a copy
thereof to each Bank.
SECTION 2.17. Borrowing Subsidiary Costs
(a) If the cost to any Bank of making or
maintaining any Loan to a Borrowing Subsidiary is increased, or
the amount of any sum received or receivable by any Bank (or its
Applicable Lending Office) is reduced, by an amount deemed by
such Bank to be material, by reason of the fact that such
Borrowing Subsidiary is organized under the laws of, or
principally conducts its business in, a jurisdiction or
jurisdictions outside the United States of America, the Borrower
and such Borrowing Subsidiary shall indemnify such Bank for such
increased cost or reduction within 15 days after demand by such
Bank (with a copy to the Administrative Agent). A certificate of
such Bank claiming compensation under this subsection (a) and
setting forth the additional amount or amounts to be paid to it
hereunder, together with calculations in reasonable detail
supporting such amounts, shall be conclusive in the absence of
clearly demonstrable error. No such compensation may be claimed
(x) in respect of any Committed Loan for any period prior to the
date 90 days before the date of notice by such Bank to the
Borrower of its intention to make claims therefore or (y) to the
extent such Bank was aware of such cost or reduction at the time
the related Loan was made.
(b) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge that
will entitle such Bank to additional interest or payments
pursuant to the foregoing subsection (a) and will designate a
different Applicable Lending Office, if, in the judgment of such
Bank, such designation will avoid the need for, or reduce the
amount of, such compensation and will not be otherwise
disadvantageous to such Bank.
ARTICLE III
CONDITIONS
SECTION 3.1. Effectiveness
This Agreement shall become effective on the date
that each of the following conditions shall have been satisfied
(or waived in accordance with Section 9.5):
(a) receipt by the Administrative Agent of
counterparts hereof signed by each of the parties hereto
(or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by
the Administrative Agent in form satisfactory to it
of telecopy or other written confirmation from
such party of execution of a counterpart hereof by
such party);
(b) receipt by the Administrative Agent
for the account of each Bank requesting a Note of a
duly executed Note dated on or before the Effective
Date complying with the provisions of Section 2.5;
(c) receipt by the Administrative Agent
of a certificate of the chief financial officer or
the treasurer of the Borrower stating that the
representations and warranties of the Borrower set forth
in Article IV hereof are true in all material respects
as of the date of such certificate;
(d) receipt by the Administrative Agent of an
opinion of Patricia Nachtigal, Senior Vice President and
General Counsel for the Borrower, substantially in the
form of Exhibit E hereto;
(e) receipt by the Administrative Agent of
evidence satisfactory to it of (i) the repayment in full,
not later than the Effective Date, of all loans (if any)
outstanding under each of the Existing Credit Agreements,
together with interest accrued thereon to the Effective
Date and (ii) the payment of all accrued and unpaid
facility fees and all other amounts due and payable under
each of the Existing Credit Agreements for the account of
the "Administrative Agents" or the "Banks" (as defined
therein); and
(f) receipt by the Administrative Agent of all
documents it may reasonably request relating to the existence
of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other
matters relevant hereto, all in form and substance
reasonably satisfactory to the Administrative Agent;
provided that this Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing
conditions are satisfied not later than July 2, 2001. The
Administrative Agent shall promptly notify the Borrower and the
Banks of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 3.2. Borrowings
The obligation of any Bank to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Administrative Agent of a
Notice of Borrowing as required by Section 2.2 or 2.3,
as the case may be;
(b) immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will
not exceed the aggregate amount of the Commitments;
(c) in the case of a Borrowing other than
a Refunding Borrowing:
(i) immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(ii) immediately before and after such Borrowing, no
event or condition shall have occurred and be continuing which
permits any holder of any Material Debt or any Person acting
on such holder's behalf to accelerate the maturity thereof; and
(iii)except to the extent any representation or warranty
expressly relates only to an earlier date, the fact that the
representations and warranties of the Borrower contained in this
Agreement (except the representations and warranties set forth in
Sections 4.4(c), 4.7, 4.11(b) and 4.5) shall be true in all
material respects on and as of the date of such Borrowing; and
(d) on the date of such Borrowing, the Borrower shall
not be in arrears on payments of principal under, or in arrears
for more than five days on payments of interest due under,
the 364-Day Credit Agreement.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the Borrower and each Borrowing Subsidiary on the
date of such Borrowing as to the facts specified in clause (b) of
this Section and each Borrowing other than a Refunding Borrowing
shall be deemed to be a representation and warranty by the
Borrower and each Borrowing Subsidiary on the date of such
Borrowing as to the facts specified in clause (c) of this
Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power
The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of New
Jersey, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization;
No Contravention
The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any judgment,
injunction, order or decree binding upon the Borrower or of any
limitation on borrowing imposed by any agreement or other
instrument binding upon the Borrower.
SECTION 4.3. Binding Effect
This Agreement constitutes a valid and binding
agreement of the Borrower and the Notes, when executed and
delivered in accordance with this Agreement, will constitute
valid and binding obligations of the Borrower, in each case
enforceable in accordance with their respective terms subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
SECTION 4.4. Financial Information; No Material
Adverse Change
(a) The consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of December 31, 2000 and
the related consolidated statements of income, shareowners'
equity and cash flows for the fiscal year then ended, reported
on by PricewaterhouseCoopers LLP and set forth in the
Borrower's 2000 Form 10-K, a copy of which has been delivered
to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results
of operations and cash flows for such fiscal year.
(b) The unaudited condensed consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of March 31, 2001,
and the related unaudited condensed consolidated statements of
income and cash flows for the three months then ended, set forth
in the Borrower's quarterly report for the fiscal quarter ended
March 31, 2001, as filed with the Securities and Exchange
Commission on Form 10-Q, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with
the financial statements referred to in subsection (a) of this
Section, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such three
month period (subject to normal year-end adjustments).
(c) Since March 31, 2001, there has been no material
adverse change in the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.5. Litigation
There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against
or affecting, the Borrower or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision
which would materially adversely affect the business,
consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries or
which in any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.6. Compliance with ERISA
Except where the liability that could reasonably be
expected to be incurred would be in an amount that would not have a
Material Adverse Effect: (i) each current member of the ERISA
Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan; (ii) no member of the ERISA Group
has (A) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan,
(B) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or
made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal
Revenue Code; (C) incurred any liability to the PBGC under Title
IV of ERISA (other than a liability to the PBGC for premiums
under Section 4007 of ERISA or contributions in the normal
course); or (D) incurred any liability in connection with a Plan
termination under Section 4201 of ERISA.
SECTION 4.7. Environmental Matters
In the ordinary course of its business, the Borrower
conducts an ongoing review of the effect of Environmental Laws on
the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law
or as a condition of any license, permit or contract, any related
constraints or operating activities, including any periodic or
permanent shutdown or any facility or reduction in the level of
or change in the nature of operations conducted thereat and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of
this review, the Borrower has reasonably concluded that
Environmental Laws are unlikely to have a material adverse effect
on the business, financial condition or results of operations of
the Borrower and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.8. Taxes
United States Federal income tax returns of the
Borrower and its Subsidiaries have been examined and closed
through the fiscal year ended December 31, 1985. The Borrower
and its Subsidiaries have filed all United States Federal income
tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes shown to be due
pursuant to such returns or pursuant to any assessment received
by the Borrower or any Subsidiary, except for any such tax,
assessment, charge or levy the payment of which is being
contested in good faith by the Borrower or such Subsidiary as of
the date this representation is made. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.9. Subsidiaries
Each of the Borrower's Material Subsidiaries is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and
has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.10. Not an Investment Company
The Borrower is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure
(a) All information heretofore furnished by the
Borrower to either Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction
contemplated hereby is, and any such information hereafter
furnished by the Borrower to either Administrative Agent or any
Bank will be, true and accurate in all material respects on the
date as of which such information is stated or certified.
(b) The Borrower has disclosed to the Banks in writing
any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the
business, operations or financial condition of the Borrower and
its Consolidated Subsidiaries, taken as a whole, or the ability
of the Borrower to perform its obligations under this Agreement.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or any Note
remains unpaid:
SECTION 5.1. Information
The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such fiscal year and the related consolidated
statements of income, shareowners' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by
PricewaterhouseCoopers LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year
of the Borrower, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such quarter and
as of the end of the preceding fiscal year, condensed
consolidated statements of income for such quarter, for the
portion of the Borrower's fiscal year ended at the end of such
quarter and for the corresponding portion of the Borrower's
previous fiscal year and condensed consolidated statements of
cash flows for the portion of the Borrower's fiscal year ended at
the end of such quarter and for the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency by the chief
financial officer or the treasurer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate of the chief financial officer or the treasurer of
the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.5 and 5.6 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 the details thereof and the
action which the Borrower is taking or proposes to take with
respect thereto;
(d) within five Domestic Business Days after the chief
financial officer, chief accounting officer, treasurer or chief legal
officer of the Borrower obtains knowledge of any Default, if such
Default is then continuing, a certificate of the chief financial
officer or the treasurer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower shall
have filed with the Securities and Exchange Commission; provided
that, unless the Administrative Agent notifies the Borrower in
writing to the contrary, satisfaction of the provisions of this
subsection (f) shall satisfy as well the provisions of
subsections (a) and (b);
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA, other than those events as to
which the 30 day notice requirement has been waived by the PBGC)
with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA which, together with any other such
liability incurred since the date hereof, exceeds in the
aggregate $135,000,000 or notice that any Multiemployer Plan is
in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV
of ERISA of an intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit
Arrangement, which in any event has resulted or could result in
the imposition of a Lien or the posting of a bond or other
security, but only if with respect to the foregoing, the
liability, individually or in the aggregate with all other events
in subsections (i)-(vii), that could reasonably be expected to
result could have a Material Adverse Effect, a certificate of the
chief financial officer or the treasurer of the Borrower setting
forth details as to such occurrence and action, if any, which the
Borrower or applicable member of the ERISA Group is required or
proposes to take;
(h) immediately after the chief financial officer or the
treasurer of the Borrower obtains knowledge of a change or a
proposed change in the rating of Borrower's outstanding senior
unsecured long-term debt securities by Moody's or S&P, a
certificate of the chief financial officer or the treasurer
setting forth the details thereof; and
(i) from time to time such additional information regarding
the financial position or business of the Borrower and its
Subsidiaries as the Administrative Agent, at the request of any
Bank, may reasonably request, provided that each Bank hereby
agrees to keep such information confidential subject to
applicable legal requirements and each such Bank agrees to notify
the Borrower prior to any such disclosure required by law.
SECTION 5.2. Maintenance of Property; Insurance
(a) The Borrower will keep, and will cause each
Subsidiary to keep, all property useful and necessary in its
business in good working order and condition, ordinary wear and
tear excepted, unless the failure to do so would not have a
material adverse effect on the business, financial position or
results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
(b) The Borrower will maintain, and will cause each Material
Subsidiary to maintain (either in the name of the Borrower or in
such Material Subsidiary's own name) with financially sound and
responsible insurance companies, insurance on all their
respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are usually
insured against in the same general area by companies of
established repute engaged in the same or a similar business.
SECTION 5.3. Conduct of Business and Maintenance of
Existence
The Borrower will continue, and will cause each
Material Subsidiary to continue, to engage in business of the
same general type as now conducted by the Borrower and its
Material Subsidiaries, and will preserve, renew and keep in full
force and effect, and will cause each Material Subsidiary to
preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights,
privileges and franchises necessary or desirable in the normal
conduct of business; provided that nothing in this Section 5.3
shall prohibit (i) the merger of a Material Subsidiary into the
Borrower or the merger or consolidation of a Material Subsidiary
with or into another Person if the corporation surviving such
consolidation or merger is a Material Subsidiary and if, in each
case, after giving effect thereto, no Default shall have occurred
and be continuing or (ii) the termination of the corporate
existence of any Material Subsidiary if the Borrower in good
faith determines that such termination is in the best interest of
the Borrower and is not materially disadvantageous to the Banks.
SECTION 5.4. Compliance with Laws
The Borrower will comply, and cause each Subsidiary
to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws
and ERISA and the rules and regulations thereunder) except (i)
where the necessity of compliance therewith is contested in good
faith by appropriate proceedings and (ii) where the failure so to
comply would not have a material adverse effect on the business,
financial position or results of operations of the Borrower and
its Consolidated Subsidiaries, considered as a whole.
SECTION 5.5. Debt
Consolidated Debt will at no time exceed 65% of the
sum of Consolidated Debt plus Consolidated Net Worth. For
purposes of this Section any preferred stock, except for auction-
rate preferred stock the higher of the voluntary or involuntary
liquidation value of which does not in the aggregate exceed
$100,000,000, of a Consolidated Subsidiary held by a Person other
than the Borrower or a Wholly-Owned Consolidated Subsidiary shall
be included, at the higher of its voluntary or involuntary
liquidation value, in "Consolidated Debt."
SECTION 5.6. Negative Pledge
(a) The Borrower will not, and will not permit any
Restricted Subsidiary to, create, assume or guarantee any
indebtedness for money borrowed secured by a Mortgage on any
Principal Property of the Borrower or a Restricted Subsidiary or
on any shares or indebtedness of a Restricted Subsidiary (whether
such Principal Property, shares or indebtedness are now owned or
hereafter acquired) without, in any such case, effectively
providing concurrently with the creation, assumption or
guaranteeing of such indebtedness that the Loans and the
obligations of the Borrower hereunder and under the Notes
(together, if the Borrower shall so determine, with any other
indebtedness then or thereafter existing created, assumed or
guaranteed by the Borrower or such Restricted Subsidiary ranking
equally with the Loans and the obligations of the Borrower
hereunder and under the Notes) shall be secured equally and
ratably with such indebtedness excluding, however, from the
foregoing any indebtedness secured by a Mortgage (including any
extension, renewal or replacement, or successive extensions,
renewals or replacements, of any Mortgage hereinafter specified
or any indebtedness secured thereby, without increase of the
principal of such indebtedness):
(i) on property, shares or indebtedness of any corporation
which Mortgage exists at the time such corporation becomes a
Restricted Subsidiary; or
(ii) on property existing at the time of acquisition thereof
by the Borrower or a Restricted Subsidiary, or to secure any
indebtedness incurred by the Borrower or a Restricted Subsidiary
prior to, at the time of, or within 180 days after the later of
the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of
commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the
purchase price thereof or construction or improvements thereon;
provided, however, that in the case of any such acquisition,
construction or improvement the Mortgage shall not apply to any
property theretofore owned by the Borrower or a Restricted
Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located; or
(iii)on property, shares or indebtedness of a corporation,
which Mortgage exists at the time such corporation is merged into
or consolidated with the Borrower or a Restricted Subsidiary, or
at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an
entirety to the Borrower or a Restricted Subsidiary; or
(iv) on property of a Restricted Subsidiary to secure
indebtedness of such Restricted Subsidiary to the Borrower or
another Restricted Subsidiary; or
(v) on property of the Borrower or a Restricted Subsidiary in
favor of the United States of America or any state thereof, or
any department, agency or instrumentality or political
subdivision of the United States of America or any state thereof,
to secure partial, progress, advance or other payments pursuant
to any contract or statute or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase
price or the cost of constructing or improving the property
subject to such Mortgage; or
(vi) on property, which Mortgage exists at the date of this
Agreement; or
(vii)with the prior written approval of the Required Banks;
provided, however, that any Mortgage permitted by any of the
foregoing clauses (i), (ii), (iii) and (v) of this Section 5.6
shall not extend to or cover any property of the Borrower or such
Restricted Subsidiary, as the case may be, other than the
property specified in such clauses and improvements thereto.
(b) Notwithstanding the provisions of subsection (a) of this
Section 5.6, the Borrower or any Restricted Subsidiary may
create, assume or guarantee secured indebtedness for money
borrowed which would otherwise be prohibited in subsection (a) in
an aggregate amount which, together with all other such
indebtedness for money borrowed by the Borrower and its
Restricted Subsidiaries and the Attributable Debt in respect of
Sale and Leaseback Transactions existing at such time (other than
Sale and Leaseback Transactions the proceeds of which have been
applied in accordance with Section 5.6(d)(ii)), does not at the
time of such creation, assumption or guaranteeing exceed 5% of
Consolidated Net Worth.
(c) Notwithstanding the foregoing provisions of this Section
5.6, the Borrower will not permit any Subsidiary (other than a
Restricted Subsidiary) to which after the date hereof the
Borrower or a Restricted Subsidiary has transferred any assets to
create, assume or guarantee any indebtedness for money borrowed
secured by a Mortgage on such assets unless such assets could
have been so secured in accordance with the provisions of this
Agreement by the Borrower or such Restricted Subsidiary making
such transfer.
(d) The Borrower will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction,
unless (i) the Borrower or such Restricted Subsidiary would be
entitled, pursuant to the foregoing subsections of this Section
5.6, to incur indebtedness secured by a Mortgage on such
Principal Property without equally and ratably securing the Loans
and the obligations of the Borrower hereunder and under the
Notes, or (ii) the Borrower shall (and in any case the Borrower
covenants that it will) apply an amount equal to the fair value
(as determined by the Borrower's Board of Directors) of such
Principal Property so leased to the retirement, within 180 days
of the effective date of any such Sale and Leaseback Transaction,
of indebtedness of the Borrower for money borrowed which by its
terms matures at, or may be extended or renewed at the option of
the Borrower to, a date more than 12 months after the date of the
creation of such indebtedness.
SECTION 5.7. Consolidations, Mergers and Sales of Assets
The Borrower will not (i) consolidate or merge with
or into any other Person or (ii) sell, lease or otherwise
transfer, directly or indirectly, all or substantially all of the
assets of the Borrower to any other Person; provided that the
Borrower may merge with another Person if (A) the Borrower is the
corporation surviving such merger and (B) immediately after
giving effect to such merger, no Default shall have occurred and
be continuing.
SECTION 5.8. Use of Proceeds
The proceeds of the Loans made under this Agreement
will be used by the Borrower (i) for working capital purposes,
(ii) to refinance Debt under the Existing Credit Agreements,
(iii) to support the commercial paper program of the Borrower and
(iv) for other general corporate purposes. None of such proceeds
will be used in violation of Regulation T, U or X of the Board.
SECTION 5.9. Other Cross Defaults or Negative Pledges
The Borrower shall not incur any Material Debt the
terms of which include a Cross Default or which include a
negative pledge provision more favorable to the holder of such
Material Debt (or more restrictive of the actions of the
Borrower) than the provisions of Section 5.6 hereof unless, prior
to or contemporaneously with such incurrence, the Borrower shall
have entered into an amendment to this Agreement, to which the
Required Banks shall not unreasonably withhold their consent,
providing a Cross Default or negative pledge provision, as the
case may be, no less favorable to the Banks than the provisions
of the Cross Default or negative pledge governing such other
Debt.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default
If one or more of the following events ("Events of
Default") shall have occurred and be continuing:
(a) the Borrower or any Borrowing Subsidiary shall fail
to pay when due principal of any Loan, or shall fail to pay within five
days of the due date thereof any interest, fees or other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.5 to 5.9, inclusive;
(c) the Borrower or any Borrowing Subsidiary shall fail to
observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a) or (b) above)
for 20 days after notice thereof has been given to the Borrower
or such Borrowing Subsidiary by the Administrative Agent at the
request of any Bank;
(d) any representation, warranty, certification or statement
made by the Borrower or any Borrowing Subsidiary in this
Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or deemed
made);
(e) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt;
(f) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to authorize
any of the foregoing;
(g) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Material Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(h) any member of the ERISA Group at the time in question
shall fail to pay when due an amount or amounts which 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 at the time in question, 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 where, individually or in the aggregate, the liability
that could reasonably be expected to result would have a Material
Adverse Effect;
(i) a final judgment or order for the payment of money
in excess of $100,000,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order
shall continue unsatisfied and unstayed for a period
of 30 days or for such longer period of
time, not exceeding 90 days, during which, under applicable law,
an appeal may be taken from such judgment or order without leave
of the relevant court; or
(j) 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 Securities and Exchange
Commission under said Act) of 25% or more of the outstanding
shares of common stock of the Borrower; or, during any period of
25 consecutive calendar months, directors of the Borrower on the
date hereof (the "Current Board"), or such directors who are
recommended or endorsed for election to the board of directors of
the Borrower by a majority of the Current Board or their
successors so recommended or endorsed, shall cease to constitute
a majority of the board of directors of the Borrower;
(k) the Borrower shall have designated one or more
Borrowing Subsidiaries and the guarantee of the Borrower,
made in Section 9.16 hereof, shall cease to be effective or
the Borrower shall contest the validity of such guarantee in
court;then, and in every such event, the Administrative Agent
shall (i) if requested by the Required Banks, by notice to
the Borrower terminate the Commitments (including any
Euro Facility Sub- Commitments) and they shall
thereupon terminate, and (ii) if requested by
the Required Banks, by notice to the Borrower
declare the Loans hereunder (together with accrued interest
thereon) to be, and the Loans shall thereupon become, immediately
due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrower and all Borrowing Subsidiaries; provided that in the
case of any of the Events of Default specified in clause (f) or
(g) above with respect to the Borrower or any Borrowing
Subsidiary, without any notice to the Borrower or any Borrowing
Subsidiary or any other act by the Administrative Agent or the
Banks, the Commitments (including any Euro Facility Sub-
Commitments) shall thereupon terminate and the Loans (together
with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower and any
Borrowing Subsidiaries.
SECTION 6.2. Notice of Default
The Administrative Agent shall give notice to the
Borrower under Section 6.1(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.1. Appointment and Authorization
Each Bank irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the Notes as
are delegated to such Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.2. Administrative Agent and Affiliates
The Chase Manhattan Bank shall have the same rights
and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it were
not the Administrative Agent, and The Chase Manhattan Bank and
its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
SECTION 7.3. Action by the Administrative Agent
The obligations of the Administrative Agent
hereunder are only those expressly set forth herein. Without
limiting the generality of the foregoing, the Administrative
Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article VI.
SECTION 7.4. Consultation with Experts
The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants
or experts.
SECTION 7.5. Liability of the Administrative Agent
Neither the Administrative Agent nor any of its
directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with
the consent or at the request of the Required Banks (or all the
Banks, if applicable) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Administrative
Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made
in connection with this Agreement or any borrowing hereunder;
(ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article III, except receipt of items
required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith.
The Administrative Agent shall not incur any liability by acting
in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire or similar writing)
believed by it to be genuine or to be signed by the proper party
or parties.
SECTION 7.6. Indemnification
Each Bank shall, ratably in accordance with its
Commitment, indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the Administrative Agent's
gross negligence or willful misconduct) that the Administrative
Agent may suffer or incur in connection with this Agreement or
any action taken or omitted by the Administrative Agent
hereunder.
SECTION 7.7. Credit Decision
Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.8. Successor Administrative Agent
The Administrative Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any
such resignation, the Required Banks shall have the right to
appoint a successor Administrative Agent reasonably satisfactory
to the Borrower. If no successor Administrative Agent shall have
been so appointed by the Required Banks, and shall have accepted
such appointment, within 30 days after the retiring
Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may appoint a successor
Administrative Agent, which shall be a commercial bank organized
or licensed under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at
least $1,000,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of
the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Article shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative
Agent.
SECTION 7.9. Administrative Agent's Fees
The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the
Administrative Agent.
SECTION 7.10. Co-Syndication Agents and Co-Documentation Agents
Except as expressly set forth herein, each Co-
Syndication Agent, in its capacity as such, and each Co-
Documentation Agent, in its capacity as such, shall have no
duties or responsibilities, and shall incur no liabilities, under
this Agreement.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair
If on or prior to the first day of any Interest Period
for any Fixed Rate Borrowing in the case of a Committed
Borrowing, Banks having 50% or more of the aggregate amount
of the Commitments advise the Administrative Agent that
the Adjusted London Interbank Offered Rate (in respect
of Dollars or any Foreign Currency), as determined
by the Administrative Agent, will not adequately and
fairly reflect the cost to such Banks of funding
their Euro-Currency Loans for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to make
Euro-Currency Loans shall be suspended. Unless the Borrower
notifies the Administrative Agent at least two Domestic Business
Days before the date of any Fixed Rate Borrowing for which a
Notice of Borrowing has previously been given that it elects not
to borrow on such date, (i) if such Fixed Rate Borrowing is a
Committed Borrowing denominated in Dollars, such Borrowing shall
instead be made as a Base Rate Borrowing, (ii) if such Fixed Rate
Borrowing is a Money Market LIBOR Borrowing denominated in
Dollars, the Money Market LIBOR Loans comprising such Borrowing
shall bear interest for each day from and including the first day
to but excluding the last day of the Interest Period applicable
thereto at the Base Rate for such day, and (iii) if such Fixed
Rate Borrowing was to be denominated in a Foreign Currency, such
Borrowing shall not be made.
SECTION 8.2. Illegality
If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Bank (or its Euro-Currency Lending Office) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Euro-Currency Lending
Office) to make, maintain or fund its Euro-Currency Loans and
such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Currency Loans shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Euro-Currency
Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall
determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Currency Loans to maturity and shall
so specify in such notice, the Borrower or any Borrowing
Subsidiary, as the case may be, shall immediately prepay in full
the then outstanding principal amount of each such Euro-Currency
Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Currency Loan, the Borrower shall borrow
a Base Rate Loan denominated in Dollars in an equal principal
amount (or in an amount equal to the Dollar Equivalent of the
principal amount, in the case of Foreign Currency Loans) from
such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Currency Loans of the
other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return
(a) If on or after (x) the date hereof, in the case
of any Committed Loan or any obligation to make Committed Loans
or (y) the date of the related Money Market Quote, in the case of
any Money Market Loan, the adoption of any applicable law, rule
or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof,
or compliance by any Bank (or its Applicable Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office)
to any tax, duty or other charge with respect to its Fixed Rate
Loans, its Note or its obligation to make Fixed Rate Loans, or
shall change the basis of taxation of payments to any Bank (or
its Applicable Lending Office) of the principal of or interest on
its Fixed Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its obligation to
make Fixed Rate Loans (except for changes in the rate of tax on
the overall net income of such Bank or its Applicable Lending
Office imposed by the jurisdiction in which such Bank's principal
executive office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by
the Board or any similar Governmental Authority, but excluding
with respect to any Euro-Currency Loan any such requirement
included in an applicable Euro-Currency Reserve Percentage),
special deposit, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or the
London interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any
sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material,
then, within 30 days after demand by such Bank (with a copy to
the Administrative Agent), the Borrower or any Borrowing
Subsidiary, as the case may be, shall pay to such Bank such
additional amount or amounts as will compensate such Bank for
such increased cost or reduction. The Banks acknowledge and
agree that the foregoing subsection (a) creates no right to
demand payment of additional amounts in respect of laws, rules
and regulations, as in effect and interpreted and administered on
the date hereof.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule
or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital of such
Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 30 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower
or any Borrowing Subsidiary, as the case may be, shall pay to
such Bank such additional amount or amounts as will compensate
such Bank (or its Parent) for such reduction; provided that the
Borrower or such Borrowing Subsidiary shall not be obligated to
compensate such Bank for any reduction incurred more than 60 days
prior to the receipt by the Borrower or such Borrowing Subsidiary
from such Bank of the notice contemplated by subsection (c)
below. The Banks acknowledge and agree that the foregoing
subsection (b) creates no right to demand payment of additional
amounts in respect of laws, rules and regulations regarding
capital adequacy as in effect and interpreted and administered on
the date hereof.
(c) Each Bank will notify the Borrower and the Administrative
Agent within 90 days of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, reduce the amount of, such compensation and
will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank; provided that if a Bank shall not
have so notified the Borrower within 90 days of such event, such
Bank may not seek compensation for any period beginning prior to
the date upon which the Borrower is notified of such event. A
certificate of any Bank claiming compensation under this Section
and setting forth the calculation of the additional amount or
amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such Bank
may use any reasonable averaging and attribution methods.
SECTION 8.4. Base Rate Loans Substituted for Affected Fixed
Rate Loans
If (i) the obligation of any Bank to make Euro-
Currency Loans has been suspended pursuant to Section 8.2 or (ii)
any Bank has demanded compensation under Section 8.3(a) and the
Borrower shall, by at least five Euro-Currency Business Days'
prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(a) all Loans which would otherwise be made by such
Bank as Euro-Currency Loans shall be made instead as Base Rate
Loans denominated in Dollars (on which interest and principal
shall be payable contemporaneously with the related Fixed
Rate Loans of the other Banks), and
(b) after each of its Euro-Currency Loans has
been repaid, all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall be applied
to repay its Base Rate Loans instead.
SECTION 8.5. Substitution of Bank
If (i) the obligation of any Bank to make Euro-
Currency Loans has been suspended pursuant to Section 8.2 or (ii)
any Bank has demanded compensation under Section 8.3, the
Borrower shall have the right, with the assistance of the
Administrative Agent, to seek a mutually satisfactory substitute
bank or banks (which may be one or more of the Banks) to purchase
the Loans and Note (as applicable) and assume the Commitment of
such Bank.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices
All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire,
facsimile transmission or similar writing) and shall be given to
such party: (w) in the case of the Borrower, at its address or
facsimile number set forth on the signature pages hereof, (x) in
the case of the Administrative Agent, at its New York address or
facsimile number set forth on the signature pages hereof,
provided that notices in respect of London-based transactions
shall be given at the Administrative Agent's London address or
facsimile number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or facsimile number set
forth in its Administrative Questionnaire or (z) in the case of
any party, such other address or facsimile number as such party
may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article
II or Article VIII or to the Borrower under Section 6.1 shall not
be effective until received.
SECTION 9.2. No Waivers
No failure or delay by the Administrative Agent or
any Bank in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided
by law.
SECTION 9.3. Expenses; Documentary Taxes; Indemnification
(a) The Borrower shall pay (i) all reasonable out-
of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the
Administrative Agent, in connection with any waiver or consent
hereunder or any amendment hereof or any Default or alleged
Default hereunder, (ii) as described in the fee letter, dated as
of June 4, 2001, among The Chase Manhattan Bank, J.P. Morgan
Securities, Inc. and Ingersoll-Rand Company, for the preparation
of this Agreement and (iii) if an Event of Default occurs, all
out-of-pocket expenses incurred by each Agent and Bank, including
reasonable fees and disbursements of counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom. The Borrower
shall indemnify each Bank against any transfer taxes, documentary
taxes, assessments or charges made by any governmental authority
by reason of the execution and delivery of this Agreement or the
Notes. To the extent practicable, the Administrative Agent or
Bank, as the case may be, shall give the Borrower prior notice of
the incurrence of any expenses described in this subsection (a);
provided, however, that the failure to give such notice shall not
affect the obligation of the Borrower to pay such Administrative
Agent or Bank the amount or amounts due pursuant to subsection
(a) with respect to such expenses.
(b) The Borrower agrees to indemnify the Agents and each Bank
and hold the Agents and each Bank harmless from and against any
and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Bank (or
by any Agent in connection with its actions as Agent hereunder)
in connection with any investigative, administrative or judicial
proceeding (whether or not such Bank shall be designated a party
thereto) relating to or arising out of this Agreement or any
actual or proposed use of proceeds of Loans hereunder; provided
that neither any Agent nor any Bank shall have the right to be
indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
SECTION 9.4. Sharing of Set-Offs
Each Bank agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest
due with respect to any Loan made by it which is greater than the
proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Loan
made by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Loans
made by the other Banks, and such other adjustments shall be
made, as may be required so that all such payments of principal
and interest with respect to the Loans made by the Banks shall be
shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Loans. The
Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any Bank acquiring a participation in
a Loan pursuant to the foregoing arrangements may exercise rights
of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were
a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.5. Amendments and Waivers
Any provision of this Agreement or the Notes may be
amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of any Agent are affected thereby,
by such Administrative Agent); provided that no such amendment or
waiver shall, unless signed by each of the Banks directly
affected thereby, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all
Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for
any reduction or termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans, or the number of Banks, which
shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement. For
the purposes of this Section, any Loans assigned to the Borrower
pursuant to Section 9.16 shall not be considered outstanding.
SECTION 9.6. Successors and Assigns
(a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or
all of its Loans. In the event of any
such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and
the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall
provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide
that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii)
of Section 9.5 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate
part of all, of its rights and obligations under this Agreement
and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit F hereto executed by such
Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Borrower and the Administrative Agent,
the latter of which such consent shall not be unreasonably
withheld or delayed by such Administrative Agent; provided that
if an Assignee is an Affiliate of such transferor Bank, no such
consent shall be required; and provided further that such
assignment may, but need not, include rights of the transferor
Bank in respect of outstanding Money Market Loans. Upon
execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a
Commitment (and a Euro Facility Sub-Commitment, if applicable) as
set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the
Assignee. In connection with any such assignment, the transferor
Bank shall pay to the Administrative Agent an administrative fee
for processing such assignment in the amount of $2,500. If the
Assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account,
deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of
any United States federal income taxes in accordance with Section
2.15.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Loans and, if applicable,
Note to a Federal Reserve Bank. No such assignment shall release
the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of
any Bank's rights shall be entitled to receive any
greater payment under Section 8.3 than such Bank would
have been entitled to receive with respect to the
rights transferred, unless such transfer is
made with the Borrower's prior written consent or by reason of
the provisions of Section 8.2 or 8.3 requiring such Bank to
designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Notwithstanding anything to the contrary
contained herein,any Bank (a "Granting Bank") may grant
to a special purpose funding vehicle (an "SPC") of such
Granting Bank, identified as such in writing
from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to
Section 2.3, provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Bank shall be obligated to
make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall be deemed to utilize the
Commitments of all the Banks to the same extent, and as if, such
Loan were made by the Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any payment under this
Agreement for which a Bank would otherwise be liable, for so long
as, and to the extent, the related Granting Bank makes such
payment. In furtherance of the foregoing, each party hereto
hereby agrees that, prior to the date that is one year and one
day after the payment in full of all outstanding senior
indebtedness 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
proceedings or similar proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.6, any SPC
may (i) with notice to, but without the prior written consent of,
the Borrower or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests
in any Loans to its Granting Bank or to any financial
institutions providing liquidity and/or credit facilities to or
for the account of such SPC to fund the Loans made by such SPC or
to support the securities (if any) issued by such SPC to fund
such Loans and (ii) disclose on a confidential basis any non-
public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
(g) The Administrative Agent, on behalf of the Borrower,
shall maintain at the Administrative Agent's Domestic Lending Office
a copy of each Assignment and Assumption Agreement delivered to it
and a register (the "Register") for the recordation of the names
and addresses of the Banks and the Commitment of, and principal
amount of the Loan owing to, each Bank from time to time. The
entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and
the Banks may (and, in the case of any Loan or other obligation
hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of
this Agreement, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register.
SECTION 9.7. Collateral
Each of the Banks represents to the Administrative
Agent and the other Banks that it in good faith is not relying
upon any "margin stock" (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided
for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction
This Agreement and each Note shall be governed by
and construed in accordance with the laws of the State of New
York. The Borrower and each Borrowing Subsidiary hereby submit
to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower and each
Borrowing Subsidiary irrevocably waive, to the fullest extent
permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in
such a court has been brought in an inconvenient forum.
SECTION 9.9. Counterparts; Integration
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to
the subject matter hereof.
SECTION 9.10. Termination of Existing Credit Agreements
The Borrower and each of the Banks that is also a
"Bank" party to either Existing Credit Agreement agrees that the
"Commitments" as defined in such Existing Credit Agreement shall
be terminated in their entirety on and as of the Effective Date.
Each of such Banks waives any requirement of notice of such
termination pursuant to Section 2.9 of the 1997 5-Year Credit
Agreement or Section 2.9 of the 2000 Credit Agreement, as the
case may be. The Borrower (i) represents and warrants that no
loans are, as of the date hereof, or will be, as of the Effective
Date, outstanding under the Existing Credit Agreements and (ii)
covenants that all accrued and unpaid facility fees and any other
amounts due and payable under the Existing Credit Agreements
shall have been paid on or prior to the Effective Date.
SECTION 9.11. Loan Conversion/Participations
On any Conversion Date, each Bank that is not a Euro
Facility Bank severally, unconditionally and irrevocably agrees
that it shall purchase a participating interest in all Euro
Loans, and each Euro Facility Bank agrees that it shall sell
participating interests in its Euro Loans, in appropriate amounts
(as determined by the Administrative Agent) such that after
giving effect to such purchases and sales, the amounts of
Committed Loans owed to the Banks (including Euro Loans) are
allocated pro rata in accordance with their Commitments. Each
Bank that is to purchase a participating interest pursuant to
this Section 9.11 will immediately transfer to the Administrative
Agent, in immediately available funds, the amounts of its
participation(s), and the proceeds of such participation(s) shall
be distributed by the Administrative Agent to each Bank from
which a participating interest is being purchased in the
amount(s) provided for in the preceding sentence.
SECTION 9.12. Conversion of Currencies
(a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in
one currency into another currency, each party hereto (including
the Borrower) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be
determined as described in the definition of Exchange Rate in
Section 1.1 hereof and in accordance with normal banking
procedures in the relevant jurisdiction of the first currency and
shall be calculated at approximately 10:00 A.M., New York City
time, or as close to such time as is reasonably practicable on
the Euro-Currency Business Day immediately preceding the day on
which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than the currency
in which such sum is stated to be due hereunder (the "Agreement
Currency"), be discharged only to the extent that, on the Euro-
Currency Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal
banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum
originally due to the Applicable Creditor in the Agreement
Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrower
contained in this Section 9.12 shall survive the termination of
this Agreement and the payment of all other amounts owing
hereunder. Furthermore, if the amount of the Agreement Currency
purchased as described above is more than the sum originally due
to the Applicable Creditor in the Agreement Currency, then such
Applicable Creditor shall remit such excess to the Borrower.
SECTION 9.13. WAIVER OF JURY TRIAL
EACH OF THE BORROWER, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.14. Severability
Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.15. Headings
Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this
Agreement.
SECTION 9.16. Guarantee Agreement
In order to induce the Banks to extend credit to the
Borrowing Subsidiaries hereunder, the Borrower hereby irrevocably
and unconditionally guarantees, as a primary obligor and not
merely as a surety, the Obligations of the Borrowing
Subsidiaries. The Borrower further agrees that the due and
punctual payment of the Obligations of the Borrowing Subsidiaries
may be extended or renewed, in whole or in part, without notice
to or further assent from it, and that it will remain bound upon
its guarantee hereunder notwithstanding any such extension or
renewal of any Obligation.
The Borrower waives presentment to, demand of payment
from and protest to any Borrowing Subsidiary of any of the
Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The
obligations of the Borrower hereunder shall not be affected by
(a) the failure of any lender to assert any claim or demand or to
enforce any right or remedy against any Borrowing Subsidiary
under the provisions of this Agreement, any Borrowing Subsidiary
Agreement, and other Loan Document or otherwise; (b) any
extension or renewal of any of the Obligations; (c) any
rescission, waiver, amendment or modification of, or release
from, any of the terms or provisions of this Agreement, any
Borrowing Subsidiary Agreement or any other Loan Document or
agreement; (d) the failure or delay of any Bank to exercise any
right or remedy against any other guarantor of the Obligations;
(e) the failure of any Bank to assert any claim or demand or to
enforce any remedy under any Loan Document or any other agreement
or instrument; (f) any default, failure or delay, willful or
otherwise, in the performance of the Obligations; or (g) any
other act, omission or delay to do any other act which may or
might otherwise operate as a discharge of the Borrower as a
matter of law or equity or which would impair or eliminate any
right of the Borrower to subrogation.
The Borrower further agrees that its guarantee
hereunder constitutes a promise of payment when due (whether or
not any bankruptcy or similar proceeding shall have stayed the
accrual or collection of any of the Obligations or operated as a
discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Bank to any
balance of any deposit account or credit on the books of any Bank
in favor of the Borrower, any Borrowing Subsidiary or other
Subsidiary or any other Person.
The obligations of the Borrower hereunder shall not be
subject to any reduction, limitation, impairment or termination
for any reason, and shall not be subject to any defense or set-
off, counterclaim, recoupment or termination whatsoever, by
reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the
Obligations or otherwise.
The Borrower further agrees that its obligations
hereunder shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any
Obligation is rescinded or must otherwise be restored by any Bank
upon the bankruptcy or reorganization of the Borrower or any
Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation
of any other right which any Bank may have at law or in equity
against the Borrower by virtue hereof, upon the failure of any
Borrowing Subsidiary to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, the Borrower hereby promises
to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the Banks in cash an amount equal the
unpaid principal amount of such Obligation. The Borrower further
agrees that if payment in respect of any Obligation shall be due
in currency other than Dollars and/or at a place of payment other
than New York and if, by reason of any legal prohibition,
disruption of currency or foreign exchange markets, war or civil
disturbance or other event, payment of such Obligation in such
currency or at such place of payment shall be impossible or, in
the reasonable judgment of any Bank, not consistent with the
protection of its rights, then, at the election of such Bank and
in reasonable consultation with the Borrower, the Borrower shall
make payments of such Obligation in Dollars (based upon the
applicable Exchange Rate in effect on the date of payment) and/or
in New York, and shall indemnify such Bank against any losses or
expenses (including losses or expenses resulting from
fluctuations in exchange rates) that it shall sustain as a result
of such alternative payment.
Upon payment in full by the Borrower of any Obligation
of any Borrowing Subsidiary, each Bank shall, in a reasonable
manner, assign to the Borrower the amount of such Obligation owed
to such Bank and so paid, such assignment to be pro tanto to the
extent to which the Obligation in question was discharged by the
Borrower, or make such disposition thereof as the Borrower shall
direct (all without recourse to any Bank and without any
representation or warranty by any Bank). Upon payment by the
Borrower of any sums as provided above, all rights of the
Borrower against any Borrowing Subsidiary arising as a result
thereof by way of right of subrogation, through the assignment
described herein or otherwise shall in all respects be
subordinated and junior in right of payment to the prior
indefeasible payment in full of all the Obligations owed by such
Borrowing Subsidiary to the Bank (it being understood that, after
the discharge of all the Obligations due and payable from such
Borrowing Subsidiary, such rights may be exercised by the
Borrower notwithstanding that such Borrowing Subsidiary may
remain contingently liable for indemnity or other Obligations).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their proper and duly authorized
officers as of the day and year first above written.
INGERSOLL-RAND COMPANY
By: /s/ Peter Hong
Name: Peter Hong
Title: Vice President and
Treasurer
200 Chestnut Ridge Road
Woodcliff Lake, NJ 07677
Facsimile number: 201-573-3468
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By: /s/ Tina Ruyter
Name: Tina Ruyter
Title: Vice President
Commitment: $117,500,000
of which $50,000,000 is a Euro Facility
Sub-Commitment
One Chase Manhattan Plaza
New York, New York 10081
Facsimile number: 212-552-7500
Chase Manhattan International
Limited
Trinity Tower
9 Thomas More Street
London England E19YT
Attention: Loans Agency Division
Facsimile number: (011)-44-171-777-
2360
CITIBANK, N.A., as Co-Syndication
Agent and as a Bank
By: /s/ P.M. Chonkar
Name: P. M. Chonkar
Title: MD
Commitment: $95,000,000
of which $50,000,000 is a Euro Facility
Sub-Commitment
THE BANK OF NOVA SCOTIA, as Co-
Documentation Agent and as a Bank
By: /s/ Brian S. Allen
Name: Brian S. Allen
Title: Managing Director
Commitment: $95,000,000
of which $50,000,000 is a Euro Facility
Sub-Commitment
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Co-Documentation Agent
and as a Bank
By: /s/ Jeffrey Stanton
Name: Jeffrey Stanton
Title: Vice President
Commitment: $95,000,000
of which $50,000,000 is a Euro Facility
Sub-Commitment
DEUTSCHE BANC ALEX. BROWN INC.,
as Co-Syndication Agent
By: /s/ Christian Dallwitz
Name: Christian Dallwitz
Title: Vice President
By: /s/ Oliver Schwarz
Name: Oliver Schwarz
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By: /s/ Christian Dallwitz
Name: Christian Dallwitz
Title: Vice President
By: /s/ Oliver Schwarz
Name: Oliver Schwarz
Title: Vice President
Commitment: $95,000,000
of which $50,000,000 is a Euro Facility
Sub-Commitment
FLEET NATIONAL BANK
By: /s/ Peter J. Cahill
Name: Peter Cahill
Title: Managing Director
Commitment: $65,000,000
BANK OF AMERICA, N.A.
By: /s/ John Pocalyko
Name: John Pocalyko
Title: Managing Director
Commitment: $65,000,000
CREDIT SUISSE FIRST BOSTON
By: /s/ Joel Glodowski
Name: Joel Glodowski
Title: Managing Director
By: /s/ David W. Kratovil
Name: David W. Kratovil
Title: Director
Commitment: $65,000,000
WACHOVIA BANK, N.A.
By: /s/ Charles L. Battie
Name: Charles L. Battie
Title: Senior Vice President/
Group Executive
Commitment: $65,000,000
BARCLAYS BANK, PLC
By: /s/ L. Peter Yetman
Name: L. Peter Yetman
Title: Director
Commitment: $65,000,000
HSBC BANK USA
By: /s/ Sarah McClintock
Name: Sarah McClintock
Title: First Vice President
Commitment: $65,000,000
BNP PARIBAS
By: /s/ Richard Pace
Name: Richard Pace
Title: Vice President
Corporate Banking Divisor
By: /s/ Nanetta Baudon
Name: Nanetta Baudon
Title: Vice President
Commitment: $65,000,000
ING (U.S.) CAPITAL LLC
By: /s/ John Kippax
Name: John Kippax
Title: First Vice President
By: /s/ Peter Vissers
Name: Peter Vissers
Title: Director
Commitment: $32,500,000
WELLS FARGO BANK, N.A.
By: /s/ Brad Hardy
Name: Brad Hardy
Title: Vice President
By: /s/ Roy H. Roberts
Name: Roy H. Roberts
Title: Vice President
Commitment: $32,500,000
MELLON BANK, N.A.
By: /s/ Kristen M. Denning
Name: Kristen M. Denning
Title: Assistant Vice President
Commitment: $32,500,000
THE BANK OF NEW YORK
By: /s/ Ernest Fung
Name: Ernest Fung
Title: Vice President
Commitment: $32,500,000
CREDIT AGRICOLE INDOSUEZ
By: /s/ Rene LeBlanc
Name: Rene LeBlanc
Title: Vice President
By: /s/ Michael Fought
Name: Michael Fought
Title: V.P.
Commitment: $25,000,000
STANDARD CHARTERED BANK
By: /s/ N. Zafar
Name: N. Zafar
Title: VP
By: /s/ Nancy Cheng
Name: Nancy Cheng
Title: Vice President
Commitment: $25,000,000
INTESABCI-NEW YORK BRANCH
By: /s/ Charles Dougherty
Name: Charles Dougherty
Title: VP
By: /s/ Frank Maffei
Name: Frank Maffei
Title: Vice President
Commitment: $25,000,000
NORDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Stephanie Finnen
Name: Stephanie Finnen
Title: VP
By: /s/ Stephen K. Hunter
Name: Stephen K. Hunter
Title: SVP
Commitment: $25,000,000
THE NORTHERN TRUST COMPANY
By: /s/ Eric Strickland
Name: Eric Strickland
Title: Vice President
Commitment: $25,000,000
THE FUJI BANK, LIMITED
By: /s/ Raymond Ventura
Name: Raymond Ventura
Title: Senior Vice President
Commitment: $25,000,000
BANK OF IRELAND INTERNATIONAL
FINANCE LTD
By: /s/ Keith Hughes
Name: Keith Hughes
Title: Manager
Commitment: $17,500,000