750,000,000 CREDIT AGREEMENT dated as of June 25, 2004 among Ingersoll-Rand Company and Ingersoll-Rand Company Limited The Banks Listed Herein and Citibank N.A. and Deutsche Bank Securities Inc., as Syndication Agents and The Bank of Tokyo-Mitsubishi,...
EXECUTION COPY
$750,000,000
CREDIT AGREEMENT
dated as of
June 25, 2004
among
Xxxxxxxxx-Xxxx Company
and
Xxxxxxxxx-Xxxx Company Limited
The Banks Listed Herein
and
Citibank N.A.
and
Deutsche Bank Securities Inc.,
as Syndication Agents
and
The Bank of Tokyo-Mitsubishi, Ltd.,
as Documentation Agent
and
JPMorgan Chase Bank,
as Administrative Agent
and
X.X.
Xxxxxx Securities Inc.,
as Lead Arranger and Bookrunner
|
TABLE OF CONTENTS |
|
| Page | |
| ARTICLE I DEFINITIONS | 1 |
| SECTION 1.1. Definitions | 1 |
| SECTION 1.2. Accounting Terms and Determinations | 14 |
| SECTION 1.3. Types of Borrowings | 15 |
| SECTION 1.4. Exchange Rates; Reset Dates | 15 |
| ARTICLE II THE CREDITS | 16 |
| SECTION 2.1. Commitments to Lend | 16 |
| SECTION 2.2. Notice of Committed Borrowings | 16 |
| SECTION 2.3. Money Market Borrowings | 17 |
| SECTION 2.4. Notice to Banks; Funding of Loans | 21 |
| SECTION 2.5. Evidence of Debt | 22 |
| SECTION 2.6. Maturity of Loans | 22 |
| SECTION 2.7. Interest Rates | 22 |
| SECTION 2.8. Facility Fee; Utilization Fee; Participation Fee | 24 |
| SECTION 2.9. Optional Termination or Reduction of Commitments | 25 |
| SECTION 2.10. Mandatory Termination of Commitments; Mandatory Prepayments | 26 |
| SECTION 2.11. Optional Prepayments | 26 |
| SECTION 2.12. General Provisions as to Payments | 27 |
| SECTION 2.13. Funding Losses | 27 |
| SECTION 2.14. Computation of Interest and Fees | 28 |
| SECTION 2.15. Withholding Tax Exemption | 28 |
| SECTION 2.16. Additional Borrowers | 28 |
| SECTION 2.17. Additional Borrower Costs | 29 |
| SECTION 2.18. Letters of Credit. | 29 |
| SECTION 2.19. Optional Commitment Increase. | 33 |
| ARTICLE III CONDITIONS | 35 |
| SECTION 3.1. Effectiveness | 35 |
| SECTION 3.2. Borrowings | 35 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES | 36 |
| SECTION 4.1. Corporate Existence and Power | 37 |
| SECTION 4.2. Corporate and Governmental Authorization; No Contravention | 37 |
| SECTION 4.3. Binding Effect | 37 |
| SECTION 4.4. Financial Information; No Material Adverse Change | 37 |
| SECTION 4.5. Litigation | 38 |
| SECTION 4.6. Compliance with ERISA | 38 |
| SECTION 4.7. Environmental Matters | 38 |
| SECTION 4.8. Taxes | 38 |
| SECTION 4.9. Subsidiaries | 39 |
| SECTION 4.10. Not an Investment Company | 39 |
| SECTION 4.11. Full Disclosure | 39 |
| ARTICLE V COVENANTS | 39 |
| SECTION 5.1. Information | 39 |
| SECTION 5.2. Maintenance of Property; Insurance | 41 |
| SECTION 5.3. Conduct of Business and Maintenance of Existence | 42 |
| SECTION 5.4. Compliance with Laws | 42 |
| SECTION 5.5. Debt | 42 |
| SECTION 5.6. Negative Pledge | 42 |
| SECTION 5.7. Consolidations, Mergers and Sales of Assets | 44 |
| SECTION 5.8. Use of Proceeds | 44 |
| SECTION 5.9. Other Cross Defaults or Negative Pledges | 44 |
| ARTICLE VI DEFAULTS | 45 |
| SECTION 6.1. Events of Default | 45 |
| SECTION 6.2. Notice of Default | 47 |
| ARTICLE VII THE ADMINISTRATIVE AGENT | 47 |
| SECTION 7.1. Appointment and Authorization | 47 |
| SECTION 7.2. Administrative Agent and Affiliates | 47 |
| SECTION 7.3. Action by the Administrative Agent | 47 |
| SECTION 7.4. Consultation with Experts | 47 |
| SECTION 7.5. Liability of the Administrative Agent | 47 |
| SECTION 7.6. Indemnification | 48 |
| SECTION 7.7. Credit Decision | 48 |
| SECTION 7.8. Successor Administrative Agent | 48 |
| SECTION 7.9. Administrative Agent's Fees | 48 |
| SECTION 7.10. Syndication Agents and Documentation Agent | 48 |
| ARTICLE VIII CHANGE IN CIRCUMSTANCES | 49 |
| SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair | 49 |
| SECTION 8.2. Illegality | 49 |
| SECTION 8.3. Increased Cost and Reduced Return | 50 |
| SECTION 8.4. Base Rate Loans Substituted for Affected Fixed Rate Loans | 51 |
| SECTION 8.5. Substitution of Bank | 52 |
| ARTICLE IX MISCELLANEOUS | 52 |
| SECTION 9.1. Notices | 52 |
| SECTION 9.2. No Waivers | 52 |
| SECTION 9.3. Expenses; Documentary Taxes; Indemnification | 52 |
| SECTION 9.4. Sharing of Set-Offs | 53 |
| SECTION 9.5. Amendments and Waivers | 53 |
| SECTION 9.6. Successors and Assigns | 54 |
| SECTION 9.7. Collateral | 56 |
| SECTION 9.8. Governing Law; Submission to Jurisdiction | 56 |
| SECTION 9.9. Counterparts; Integration | 56 |
| SECTION 9.10. Termination of Existing 364-Day Credit Agreement | 56 |
| SECTION 9.11. [Intentionally Omitted] | 57 |
| SECTION 9.12. Conversion of Currencies | 57 |
| SECTION 9.13. WAIVER OF JURY TRIAL | 57 |
| SECTION 9.14. Severability | 57 |
| SECTION 9.15. Headings | 58 |
| SECTION 9.16. Guarantee Agreement | 58 |
| SECTION 9.17. USA Patriot Act. | 61 |
Exhibit A-1
- Note (the Borrower)
Exhibit A-2 - Note (IR Parent)
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 - Additional Borrower Agreement
Exhibit H
- New Bank Supplement
Exhibit I - Commitment Increase Supplement
Exhibit J - Opinion of Counsel for IR Parent
CREDIT AGREEMENT dated as of June 25, 2004 among
XXXXXXXXX-XXXX COMPANY, XXXXXXXXX-XXXX COMPANY
LIMITED, the BANKS listed on the
signature pages hereof, JPMORGAN CHASE BANK, as Administrative Agent, CITIBANK
N.A., and DEUTSCHE BANK SECURITIES INC., as Syndication Agents, and THE BANK OF
TOKYO-MITSUBISHI, LTD., as
Documentation Agent.
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.
"Additional Borrower" means, at any time, IR Parent and each of
the Subsidiaries which has been designated as an Additional Borrower
by the
Borrower pursuant to Section 2.16 and which may borrow Committed Loans as
described in Section 2.1.
"Adjusted London Interbank Offered Rate" has the meaning set forth in Section 2.7(b).
"Administrative Agent" means JPMorgan Chase 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 Syndication Agents
and the Documentation Agent, 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.
"Applicable Percentage" means, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's
Commitment. If the Commitments have terminated or
expired, the Applicable Percentage shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.
"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.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Termination Date and the
date of termination of the Commitments.
"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) and the
amount of LC Exposure.
"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 Xxxxxxxxx-Xxxx Company, a New Jersey corporation, and its successors.
"Borrowing" has the meaning set forth in Section 1.3.
"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.
"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).
"Commitment Increase Date" has the meaning set forth in Section 2.19(b).
"Commitment Increase Supplement" has the meaning set forth in Section 2.19(b).
"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 IR Parent 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
IR Parent and its Consolidated Subsidiaries
referred to in Section 4.4(a) hereof, (ii) capitalized lease obligations of the
IR Parent 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 IR Parent
or a wholly-owned Consolidated
Subsidiary, but in any event excluding
subordinated debentures issued by the IR Parent 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 IR Parent that the Required Banks wish to
amend the foregoing definition to include an obligation covered by the
definition of Debt (or if the IR Parent notifies the Administrative Agent that
the IR Parent wishes to amend the foregoing definition to
exclude an obligation
not covered by the definition of Debt), then the IR Parent'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 IR Parent and the Required Banks.
"Consolidated Net Worth" means, in accordance with Section 1.2, at
any date the consolidated stockholders' equity of the IR Parent
and its
Consolidated Subsidiaries, exclusive of adjustments resulting from any
accumulated other comprehensive income, any impairment
of tangible assets, or
any non-cash charges, but including the amount shown on the balance sheet of
the IR Parent 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 IR
Parent in its consolidated financial statements if such statements were prepared
as of such date.
"Cross Default" means a provision governing Debt of the Borrower
or IR Parent 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, IR Parent or of a Subsidiary or (ii) the failure to pay when due any
amount on any
other Material Debt of the Borrower, IR Parent 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 IR Parent 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.
"Disbursement Date" has the meaning set forth in Section 2.18(e).
"Documentation Agent" means The Bank of Tokyo-Mitsubishi, Ltd. in
its capacity as documentation agent hereunder, and its successors
in such
capacity.
"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)
and/or one or more other offices 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 and on which the Trans-European Automated
Real-Time Gross Settlement Express
Transfer System (TARGET) (or, if such
clearing system ceases to be operative, such other clearing system (if any)
determined by the
Administrative Agent to be a suitable replacement) is open
for settlement of payment in euros.
"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) and/or one or more other offices,
branches or
affiliates 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 denominated in Dollars
or in euros 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 Sub-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 as such Bank's "Euro Facility
Sub-Commitment", and with respect to any Bank
which becomes a 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 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 364-Day Credit Agreement" means the 364-Day Credit Agreement,
dated as of July 2, 2001 (as amended by the Amendment
and Waiver dated as of
November 28, 2001, as further amended by the Second Amendment dated as of June
21, 2002, as further
amended by the Third Amendment dated as of June 20, 2003,
and as further amended, supplemented or otherwise modified from time
to time),
among the Borrower, IR Parent, the several banks and other financial
institutions from time to time party thereto, JPMorgan
Chase Bank, as
administrative agent, Citigroup Capital Markets Inc. and Deutsche Bank
Securities Inc., as co-syndication agents, and
The Bank of Nova Scotia and Bank
of Tokyo Mitsubishi Trust Company, as co-documentation agents.
"Existing 5-Year Credit Agreement" means the Credit Agreement,
dated as of July 2, 2001 (as amended by the Amendment and
Waiver, dated as of
November 28, 2001, and as further amended, supplemented or otherwise modified
from time to time), among the
Borrower, IR Parent, the banks listed on the
signature pages thereof, JPMorgan Chase Bank (formerly known as The Chase
Manhattan
Bank), as administrative agent, Citibank N.A. and Deutsche Banc Alex.
Xxxxx Inc., as co-syndication agents, and The Bank of Nova
Scotia and Bank of
Tokyo Mitsubishi Trust Company, as co-documentation agents.
"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 JPMorgan Chase
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 whichthere 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:
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.
"IR Parent" means Xxxxxxxxx-Xxxx Company Limited, a Bermuda company.
"Issuing Bank" means JPMorgan Chase Bank and any other Bank
selected by the Borrower or IR Parent and that agrees to act in
such capacity,
in such Bank's capacity as the issuer of Letters of Credit hereunder, and such
Bank's successors in such capacity.
"Judgment Currency" has the meaning set forth in Section 9.12.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time
plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower or any
Additional Borrower at such time. The LC Exposure of any Bank at any time
shall be its Applicable Percentage of the total LC
Exposure at such time.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement. All Letters of Credit
shall be denominated in
Dollars.
"Level I Status" exists, subject to the provisions of Section
2.7(f) hereof, at any date if, at such date, the Borrower's or IR Parent's,
if
IR Parent has a higher rating as of such date, 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 or IR Parent's, if IR Parent has a higher rating as of
such date, 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 or IR Parent's, if IR Parent has a
higher rating as of such date, 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 or IR Parent's, if
IR Parent has a higher rating as of such date,
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 or IR Parent's, if IR Parent
has a higher rating as of such date, 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, IR Parent 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 IR
Parent and its Consolidated Subsidiaries, considered as a whole.
"Material Debt" means (i) any Public Debt and (ii) any Debt of the
Borrower, IR Parent and/or one or more of their respective
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) Schlage Lock Company LLC, a
Delaware limited liability company, Xxxxx 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 Additional Borrower other than IR Parent.
"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 and/or one or more other offices, branches
or affiliates 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(ii)).
"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 Xxxxx'x 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.
"New Bank Supplement" has the meaning set forth in Section 2.19(b).
"Notes" means promissory notes of the Borrower and IR Parent,
substantially in the form of Exhibits A-1 and A-2 hereto,
evidencing the
obligation of the Borrower and IR Parent 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 Additional Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in
such proceeding) the Loans, the Letters of
Credit and all other obligations and liabilities of the Borrower or any
Additional
Borrower 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).
"Participation Fee Rate" has the meaning set forth in Section 2.7(f).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of
America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of
acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of
acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any
domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above
and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth
in Securities and Exchange Commission Rule 2a-7 under the
Investment Company
Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and (iii) have
portfolio assets of at least
$5,000,000,000.
"Person" means an individual, a corporation, a limited liability
company, 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 JPMorgan Chase Bank at its principal office,
presently located at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 9.00% Debentures due 2021;
(ii) the Borrower's 7.20% Debentures due 2006-2025;
(iii) the Borrower's 6.48%
Redeemable Debentures due 2025; (iv) the Borrower's 6.391% Debentures due 2027;
(v) the
Borrower's 6.443% Debentures due 2027; (vi) the Borrower's Medium Term
Notes due through 2028; (vii) the Xxxxx
Medium Term Notes due 2023; (viii) the
6.75% Hussmann International, Inc. Senior Notes due 2008; and (ix) 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.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers,
employees,
agents and advisors of such Person and such Person's Affiliates.
"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 Exposure" means, at any time, the aggregate principal
amount of Loans then outstanding together with the
aggregate amount of LC
Exposure at such time. The amount of
Revolving Exposure, at any time, shall not exceed the amount
of total
Commitments at such time.
"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 or by IR
Parent, as applicable.
"Syndication Agent" means each of Citibank N.A., and Deutsche Bank
Securities Inc. in their respective capacities as
syndication agent for the
Banks hereunder, and their successors in such capacities.
"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.
"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.
"US Borrower" means the Borrower and each Additional Borrower
which is incorporated under the laws of or engaged in a
trade or business in
the United States of America.
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 IR Parent's independent
public accountants) with the
most recent audited consolidated financial
statements of IR Parent and its Consolidated Subsidiaries delivered to the
Banks;
provided that, (x) if IR Parent or the Borrower notifies the
Administrative Agent that IR Parent or 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 IR Parent or the Borrower that the Required Banks
wish
to amend Article V for such purpose), then IR Parent'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, provided that Consolidated Net Worth shall be determined
excluding the effect of
goodwill impairment charges, net of taxes, to the
extent that such effect would not otherwise have been included in such
determination but for the application of FAS 142.
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 Additional
Borrower 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
Availability 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
Additional Borrower pursuant to this
Section from time to time in amounts such
that the Revolving Exposure 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 Additional Borrower may
borrow under this
Section, repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time during the Availability
Period under this
Section.
(b)
Sub-Commitments to Lend in Euros. During the Availability Period, each 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 Additional
Borrower
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, (ii) the Dollar
Equivalent
of the aggregate principal amount of Euro Loans by such Bank at any
one time outstanding shall not exceed its Euro
Facility Sub-Commitment and
(iii) the Revolving Exposure by such Bank at any one time outstanding shall not
exceed the
amount of its 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 Banks ratably in proportion
to their respective Euro
Facility Sub-Commitments. Within the foregoing limits, the Borrower or any Additional
Borrower may borrow under this
Section, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time during the Availability
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 Banks' Commitments hereunder and
shall reduce the Available
Commitment of the Banks accordingly.
SECTION 2.2. Notice
of Committed Borrowings. The Borrower or any Additional Borrower, as
applicable, shall give
the Administrative Agent notice (a "Notice of Committed
Borrowing") (w) at its New York address not later than 11:00
A.M. (New York
City time) on the date of each Base Rate Borrowing, (x) at its New York address
not later than 11:00
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,
(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 or IR Parent may,
as set forth in this Section, request the Banks
during the Availability Period to make offers to make Money Market Loans to
the
Borrower or IR Parent. The Banks may,
but shall have no obligation to, make such offers and the Borrower or IR
Parent
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section. The Borrower
or
IR Parent may request the Banks to make Money Market Loans denominated in
Dollars or in any Foreign Currency;
provided, however, that (i)
at no time may the Borrower or IR Parent request the Banks to make Money Market
Loans
denominated in a Foreign Currency so as to cause the Dollar Equivalent of
the aggregate amount of Money Market Loans
denominated in Foreign Currencies to
exceed $500,000,000 and (ii) at no time may the Borrower or IR Parent request
the
Banks to make Money Market Loans so as to cause the amount of the Revolving
Exposure to exceed the amount of the total
Commitments.
(b)
Money Market Quote Request. When the Borrower or IR Parent 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 11:00
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 11:00
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 or IR
Parent 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
$10,000,000 (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 or IR Parent 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 or IR Parent 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 or IR
Parent 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 for 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 or IR
Parent 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 or IR Parent 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 or IR Parent.
(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 $10,000,000 (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 or IR Parent
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 or IR Parent 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 11:30 A.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 or IR Parent 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 or IR Parent 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 or
IR Parent 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
$10,000,000 (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) neither the Borrower nor IR Parent may 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
Additional Borrower, as the case may
be.
(b) Not later than 12:30 p.m. (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
Additional Borrower, 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 Additional Borrower, 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 Additional Borrower 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 Additional Borrower, 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 Additional Borrower
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 Additional Borrower 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 Additional
Borrower 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 Additional
Borrower to each Bank hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from
the Borrower or any Additional
Borrower 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
Additional Borrower 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
Additional Borrower to repay (with applicable interest) the Loan made to such
Borrower or Additional Borrower by such Bank
in accordance with the terms of
this Agreement.
(d) The Borrower and all Additional Borrowers agree that, upon the
request to the Administrative Agent by any Bank, the
Borrower or such
Additional Borrower will execute and deliver to such Bank a single Note of the
Borrower or such Additional
Borrower, 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", "Facility Fee Rate" and
"Participation 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
VI |
|
|
Euro-Currency Margin |
.170% |
.210% |
.325% |
.475% |
.575% |
.675% |
|
Facility Fee Rate |
.080% |
.090% |
.125% |
.150% |
.175% |
.200% |
|
Participation Fee Rate |
.270% |
.310% |
.425% |
.575% |
.675% |
.775% |
; provided that, (i) if the Borrower's or IR Parent's (if IR Parent has a higher rating as of such date) lower rating is two or more Levels lower than the Borrower's or IR Parent's (if IR Parent has a higher rating as of such date) higher rating, the Euro-Currency Margin, Facility Fee Rate and Participation 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 or IR Parent (if IR Parent has a higher rating as of such date) 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, Facility Fee Rate and Participation 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, Facility Fee Rate or Participation Fee Rate shall apply to all outstanding Euro-Currency Loans and to all facility fees and participation 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; Participation 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
Revolving Exposure 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)).
(c) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each bank a participation fee with respect to its
participations
in Letters of Credit, which shall accrue at the Participation Fee Rate on the
average daily amount of such Bank's LC
Exposure during the period from and
including the Effective Date to but excluding the later of the date on which
such Bank's
Commitment terminates and the date on which such Bank ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall
accrue at the rate or rates per annum separately agreed upon between the
Borrower and the Issuing Bank on the
average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during
the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the
date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance,
amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder.
Participation fees and fronting
fees accrued through and including the
last day of March, June, September and December of each year shall be payable
on the
third Domestic Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided
that all
such fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on
which the Commitments terminate shall
be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this
paragraph shall be payable within
10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a
year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
SECTION 2.9. Optional
Termination or Reduction of Commitments. During the Availability 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. Any termination or reduction of the
Commitments shall be permanent.
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
Revolving Exposure exceeds the aggregate
Commitments on such date, the Borrower
and any Additional Borrowers 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 Revolving Exposure 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 Additional Borrowers 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 Additional Borrower 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 partia
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 Additional Borrowers 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
Additional Borrower, as the case may be.
SECTION 2.12. General
Provisions as to Payments. (a) The Borrower and
any Additional Borrower, as applicable, shall make
each payment of principal or
interest on the Loans and of fees hereunder, without set-off, counterclaim or
deduction of any kind,
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 Additional Borrower prior to the
date on
which any payment is due to the Banks hereunder that the Borrower or such
Additional Borrower will not make such
payment in full, the Administrative
Agent may assume that the Borrower or such Additional Borrower 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 Additional Borrower 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 Additional Borrower
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 Additional Borrower 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
Additional Borrower 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 Additional Borrower 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 Additional
Borrower 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 W-8BEN or W-8ECI (or a successor form),
certifying in
either case that such Bank is entitled to receive payments under this Agreement
and the Notes from each US
Borrower at the time of such delivery without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form W-8BEN or
W-8ECI (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 any US Borrower or the
Administrative
Agent, in each case certifying that such Bank is entitled to receive payments
under this Agreement and the Notes
from each US Borrower at the time of such
delivery 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 each of 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. Additional Borrowers.
(a) The Borrower hereby designates IR Parent as an Additional Borrower.
(b) On or after the Effective Date, the Borrower may designate any
wholly owned Subsidiary of IR Parent or any wholly owned
Subsidiary of the
Borrower as an Additional Borrower by delivery to the Administrative Agent of
(i) an Additional Borrower
Agreement executed by such Subsidiary, IR Parent and
the Borrower, substantially in the form of Exhibit G hereto (each, an
"Additional
Borrower Agreement") 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 an Additional
Borrower and a party to this Agreement. Promptly following receipt of any Additional
Borrower Agreement, the
Administrative Agent shall send a copy thereof to each
Bank.
SECTION 2.17.
Additional
Borrower Costs. (a) If the cost to any
Bank of making or maintaining any Loan to an Additional
Borrower 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 Additional Borrower 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 Additional Borrower 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.
SECTION 2.18. Letters of Credit.
(a)
General.
Subject to the terms and conditions set forth herein, the Borrower or
any Additional Borrower may request the
issuance of Letters of Credit for its
own account, in a form reasonably acceptable to the Administrative Agent and
the
Issuing Bank, at any time and from time to time during the Availability
Period. In the event of any
inconsistency between
the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other
agreement
submitted by the Borrower or any Additional Borrower to, or entered into by the
Borrower or any Additional
Borrower with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance
of a Letter of Credit
(or the amendment, renewal or extension of an outstanding
Letter of Credit), the Borrower or any Additional Borrower
shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved
by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of
issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter
of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Domestic Business Day), the date on which such Letter of
Credit is to expire (which shall comply with
paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and
such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by
the Issuing Bank, the
Borrower or such Additional Borrower also shall submit a letter of credit
application on the Issuing
Bank's standard form in connection with any request
for a Letter of Credit. A Letter of
Credit shall be issued, amended,
renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
or such Additional Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance,
amendment, renewal or extension
(i) the LC Exposure shall not exceed $250,000,000 and (ii) the sum of
the total Loans
plus the LC Exposure shall not exceed the total
Commitments. The Issuing Bank shall not
issue, amend, renew or extend
a Letter of Credit if notice has been given to
such Issuing Bank by the Administrative Agent or the Required Banks that a
Default or Event of Default has occurred and is continuing. The Issuing Bank shall provide to the Administrative
Agent
and, in turn, the Administrative Agent shall provide to the Banks a
monthly update, in accordance with customary
practices, of total LC Exposures,
it being understood that the obligations of the Banks shall not be subject to
the receipt of
such update.
(c)
Expiration Date.
Each Letter of Credit shall expire at or prior to the close of business
on the date that is five Domestic
Business Days prior to the Termination Date.
(d)
Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof)
and without any further action on the
part of the Issuing Bank or the Banks, the Issuing Bank hereby grants to each
Bank,
and each Bank hereby acquires from the Issuing Bank, a participation in
such Letter of Credit equal to such Bank's
Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In consideration and in
furtherance of the
foregoing, each Bank hereby absolutely and unconditionally agrees to pay to the
Administrative Agent,
for the account of the Issuing Bank, such Bank's
Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not
reimbursed by the Borrower or any Additional Borrower, as applicable, on the
date due as provided in
paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower or any Additional
Borrower for
any reason. Each Bank acknowledges and
agrees that its obligation to acquire participations pursuant to this
paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance
whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset,
abatement, withholding or reduction
whatsoever.
(e)
Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower or any
Additional Borrower, as applicable, shall
reimburse such LC Disbursement by paying to the Administrative Agent an
amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the Domestic Business Day
immediately following the Domestic Business Day that
such LC Disbursement is made (the "Disbursement Date"), if the
Borrower
or such Applicable Borrower shall have received notice of such LC Disbursement
prior to 3:00 p.m., New York
City time, on the Disbursement Date, or, if such
notice has not been received by the Borrower or such Additional
Borrower prior
to such time on such date, then not later than 12:00 noon, New York City time,
on (i) the Domestic
Business Day immediately following the Domestic Business
Day that the Borrower or such Additional Borrower, as
applicable, receives such
notice, if such notice is received prior to 3:00 p.m., New York City time, on
the day of receipt, or
(ii) within two Domestic Business Days immediately
following the day that the Borrower or such Additional Borrower
receives such
notice, if such notice is not received prior to 3:00 p.m., New York City time,
on the day of receipt; provided
that, if such LC Disbursement is not
less than $10,000,000, the Borrower or such Additional Borrower may, subject to
the
conditions to borrowing set forth herein, request in accordance with
Section 2.3 or 2.4 that such payment be financed with
a Domestic Loan,
Euro-Currency Loan or Money Market Loan in an equivalent amount and, to the
extent so financed, the
Borrower's or such Additional Borrower's obligation to
make such payment shall be discharged and replaced by the
resulting Domestic
Loan, Euro-Currency Loan or Money Market Loan.
If the Borrower or any Additional Borrower fails
to make such payment
when due, the Administrative Agent shall notify each Bank of the applicable LC
Disbursement, the
payment then due from the Borrower or any Additional Borrower
in respect thereof and such Bank's Applicable
Percentage thereof. Promptly following receipt of such notice,
each Bank shall pay to the Administrative Agent its
Applicable Percentage of
the payment then due from the Borrower or any Additional Borrower, in the same
manner as
provided in Section 2.4 with respect to Loans made by such Bank
(and Section 2.4 shall apply, mutatis mutandis, to the
payment obligations of the Banks), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so
received by it from the Banks. Promptly following receipt by the
Administrative Agent of any payment from the Borrower
or any Additional
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the
Issuing Bank or, to the extent that Banks have made
payments pursuant to this paragraph to reimburse the Issuing Bank,
then to such
Banks and the Issuing Bank as their interests may appear. Any payment made by a Bank pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of a Domestic Loan, Euro- Currency Loan or Money Market Loan as contemplated
above) shall not constitute a Loan and shall not relieve the
Borrower or any
Additional Borrower of its obligation to reimburse such LC Disbursement.
(f)
Obligations Absolute.
The Borrower's or Additional Borrower's, as applicable, obligation to
reimburse LC
Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall
be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or
provision therein,
(ii) any draft or other document presented under a Letter of Credit proving to
be forged, fraudulent or
invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing
Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of
such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the
foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a
right of setoff against, the Borrower's or any
Additional Borrower's obligations hereunder.
Neither the Administrative
Agent, the Banks nor the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any
payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or
relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank;
provided that the foregoing shall not
be construed to excuse the Issuing Bank from liability to the Borrower or any
Additional Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of
which are hereby waived by the
Borrower and any Additional Borrower to the extent permitted by applicable law)
suffered by the Borrower or any Additional Borrower that are caused by the
Issuing Bank's failure to exercise care
when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in
the absence of gross negligence or wilful misconduct on the part of
the Issuing
Bank (as finally determined by a court of competent jurisdiction), the Issuing
Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the
parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with
the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such
documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or
refuse to accept and make payment upon such documents
if such documents are not in strict compliance with the terms
of such Letter of
Credit.
(g)
Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof,
examine all documents
purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank
shall promptly notify the
Administrative Agent and the Borrower or such
Additional Borrower, as applicable, by telephone (confirmed by
telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement
thereunder; provided that any failure to give or delay
in giving such notice shall not relieve the Borrower or any
Additional Borrower
of its obligation to reimburse the Issuing Bank and the Banks with respect to
any such LC
Disbursement.
(h)
Interim Interest.
If the Issuing Bank shall make any LC Disbursement, then, unless the
Borrower or any Additional
Borrower, as applicable, shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made,
the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is
made to but excluding the date that the Borrower or
such Additional Borrower reimburses such LC Disbursement,
at the rate per annum
then applicable to Domestic Loans; provided that, if the Borrower or
such Additional
Borrower, as applicable, fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this
Section, then the
third sentence of Section 2.7(a) shall apply.
Interest accrued pursuant to this paragraph shall be
for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Bank
pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Bank to the
extent of such payment.
(i)
Cash Collateralization. If any Event of Default shall occur and be continuing, on the
Domestic Business Day that the
Borrower or any Additional Borrower receives
notice from the Administrative Agent or the Required Banks (or, if
the maturity
of the Loans has been accelerated, Banks with LC Exposure representing greater
than 51% of the total
LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower or such Additional
Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for
the benefit of the Banks, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid
interest
thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and
such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the
occurrence of any Event of Default with respect to the Borrower or such
Additional Borrower described in
clause (f) or (g) of Section 6.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment
and performance of the
obligations of the Borrower or such Additional Borrower under this
Agreement. The
Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over
such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made in
Permitted Investments at the Borrower's or such Additional
Borrower's risk and expense, such deposits shall not
bear interest. Interest or profits, if any, on such
investments shall accumulate in such account.
Moneys in such
account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which
it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement
obligations of the Borrower or such
Additional Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated (but subject to the consent of Banks with LC Exposure
representing greater than 51%
of the total LC Exposure), be applied to satisfy other obligations of the
Borrower under this Agreement. If the
Borrower or any Additional Borrower is required to provide an amount of cash
collateral hereunder as a result of
the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the
Borrower or such Additional Borrower within three Domestic Business Days after
all Events of Default have been
cured or waived.
SECTION 2.19. Optional Commitment Increase.
(a)
The Borrower shall have the right at any time and from time to
time to increase the total Commitments in an
aggregate amount not to exceed
$500,000,000 (i) by requesting that any Bank already party to this Agreement
increase the amount of such Bank's Commitment and (ii) to the extent
insufficient Commitments are available from
such existing Banks, by requesting
that one or more banks or other financial institutions not a party to this
Agreement become a Bank hereunder; provided that the addition of any
bank or financial institution pursuant to
clause (i) above shall be subject to
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld); provided, further, that the Commitment of
any bank or other financial institution pursuant
to clause (i) above shall be
in an aggregate principal amount at least equal to $10,000,000; provided,
further, that
the amount of the increase of any Bank's Commitment
pursuant to clause (ii) above, when added to the amount of
such Bank's
Commitment before the increase, shall be in an aggregate principal amount at
least equal to
$10,000,000.
(b) Any
additional bank, financial institution or other entity which elects to become a
party to this Agreement and obtain
a Commitment pursuant to clause (a)(i) of
this Section 2.19 shall execute a New Bank Supplement (each, a "New
Bank
Supplement") with the Borrower and the Administrative Agent, substantially
in the form of Exhibit H. Upon
its
receipt of a New Bank Supplement executed by an additional bank, financial
institution or other entity which
elects to become a party to this Agreement
and obtain a Commitment pursuant to clause (a) of this Section 2.19,
together
with payment to the Administrative Agent of a registration and processing fee
of $3,500, the
Administrative Agent shall (i) promptly
accept such New Bank Supplement and (ii) record the
information
contained therein in the Register on the effective date determined
pursuant thereto, whereupon such bank, financial
institution or other entity
shall become a Bank for all purposes and to the same extent as if originally a
party hereto
and shall
be bound by and entitled to the benefits of this
Agreement. Any increase in the total
Commitments
pursuant to clause (a)(ii) of this Section 2.19 shall be effective
only upon the execution and delivery to the
Borrower and the Administrative
Agent of a commitment increase supplement in substantially the form of Exhibit
I
(a "Commitment Increase Supplement"), which Commitment Increase
Supplement shall be delivered to the
Administrative Agent not less than five
Domestic Business Days prior to the Commitment Increase Date and shall
specify
(i) the amount of any increase in the Commitment of any Bank and (ii) the date
such increase is to become
effective (the "Commitment Increase Date"). In addition, such changes as the Administrative
Agent determines
desirable to effectuate the foregoing, including changes to
the provision relating to pro rata borrowings, payments
and other similar
treatment of Banks and the calculation and payment of interest and fees, shall
be deemed
authorized by the Banks and this Agreement shall be deemed amended
upon the effectiveness of such addition of
Banks or increase in Commitments,
and the Administrative Agent may require that the Borrower prepay and
reborrow
any outstanding Loans in connection therewith if it determines such action to
be desirable to facilitate
administration under the Agreement.
(c) Any increase in the total Commitments pursuant to this Section 2.19 shall not be effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the Commitment Increase Date;
(ii) each of the representations and warranties made by the Borrower
and IR Parent in Article IV, or in any
certificate delivered pursuant hereto,
shall be true and correct in all material respects on the Commitment
Increase
Date with the same effect as though made on and as of such date, except to the
extent such
representations and warranties expressly relate to an earlier date
in which case such representations and
warranties shall be true and correct in
all material respects as of such earlier date.
Each notice requesting an increase in the total
Commitments pursuant to this Section 2.19 shall constitute a
certification to
the effect set forth in clauses (i) and (ii) of this Section 2.19(c).
(d) No Bank shall at any time be required to agree to a request of the
Borrower to increase its Commitment or
obligations hereunder.
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
and IR Parent stating
that the representations and warranties of the Borrower and IR Parent 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 (i) an opinion of
Xxxxxxxx Xxxxxxxxx, Senior Vice President and General
Counsel for the Borrower,
substantially in the form of Exhibit E hereto and (ii) an opinion of Xxxxxxx,
Xxxx &
Xxxxxxx, counsel to IR Parent, substantially in the form of Exhibit
J 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 the Existing 364-Day Credit Agreement,
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 the Existing 364-Day Credit Agreement 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 and IR Parent, 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 June 25, 2004. The Administrative Agent shall promptly
notify
the Borrower, IR Parent 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, and of
the Issuing Bank to issue, amend, renew
or extend any Letter of Credit (as applicable), 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, or the issuance, amendment,
renewal or extension of such Letter of Credit,
the aggregate outstanding principal amount of the Loans plus the LC
Exposure will not exceed the aggregate
amount of the Commitments;
(c) in the case of a Borrowing, other than a Refunding Borrowing,
or an issuance, amendment, renewal or extension
of a Letter of Credit:
(i) immediately before and after such Borrowing or the issuance,
amendment, renewal or extension of
such Letter of Credit, no Default shall have
occurred and be continuing;
(ii)
immediately before and after such Borrowing or the issuance,
amendment, renewal or extension of
such Letter of Credit, 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 and IR Parent 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 or the issuance, amendment,
renewal or extension of such Letter of
Credit; and
(d) on the date of such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, each of
the Borrower and IR
Parent 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 Existing 5-Year
Credit Agreement.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit hereunder shall be deemed to be a representation and warranty by the Borrower and each Additional Borrower on the date of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit as to the facts specified in clause (b) of this Section and each Borrowing, other than a Refunding Borrowing, and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to be a representation and warranty by the Borrower and each Additional Borrower on the date of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit as to the facts specified in clause (c) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and IR Parent 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. IR Parent is a
company duly
incorporated, validly existing and in good standing under the laws of Bermuda,
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 and IR Parent of this Agreement and the Notes are within
the
Borrower's and IR Parent'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 IR Parent or
of any judgment, injunction, order or decree binding upon the Borrower or
IR
Parent or of any limitation on borrowing imposed by any agreement or other
instrument binding upon the Borrower
or IR Parent.
SECTION 4.3. Binding
Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and IR
Parent and the Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of the Borrower and IR Parent, 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 IR Parent and its
Consolidated Subsidiaries as of December 31, 2003 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 IR
Parent's 2003 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 IR Parent 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 IR
Parent and its Consolidated Subsidiaries as of
March 31, 2004, and the related unaudited condensed consolidated statements of income and cash flows for
the
three months then ended, set forth in IR Parent's quarterly report for the
fiscal quarter ended March 31,
2004, 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 IR
Parent 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, 2004, there has been no material adverse
change in the business, financial position or results
of operations of IR
Parent 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 IR Parent
threatened against or
affecting, IR Parent 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 IR Parent 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. In the case of the Borrower,
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, IR
Parent conducts an ongoing review
of the effect of Environmental Laws on the
business, operations and properties of IR Parent and its Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or
operating expenditures required
for clean-up or closure of properties presently or previously owned, any capital
or
operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by
law or as a condition of any
license, permit or contract, any related constraints 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, IR Parent has reasonably concluded that Environmental
Laws are unlikely to
have a material adverse effect on the business, financial
condition or results of operations of IR Parent 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, 1992.
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. IR Parent
and its Subsidiaries have
filed all Bermuda 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 IR Parent or any
Subsidiary, except for any such tax, assessment,
charge or levy the payment of which is being contested in good faith by
IR
Parent or such Subsidiary as of the date this representation is made. The charges, accruals and reserves on the/
books of the Borrower, IR Parent and their Subsidiaries in respect of taxes or
other governmental charges are, in the
opinion of the Borrower and IR Parent,
adequate.
SECTION 4.9. Subsidiaries.
Each of the Borrower's and IR Parent'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. Neither the Borrower nor IR Parent is 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 and IR
Parent 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 or IR Parent 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 and IR Parent have disclosed to the Banks in
writing any and all facts which materially and adversely
affect or may affect
(to the extent the Borrower or IR Parent can now reasonably foresee), the
business, operations or
financial condition of IR Parent and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Borrower or
IR Parent to
perform its obligations under this Agreement.
ARTICLE V
COVENANTS
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable
hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall
have been reimbursed, each of the
Borrower and IR Parent agree that:
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 IR Parent, a consolidated
balance sheet of IR Parent
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
IR Parent, a
consolidated balance sheet of IR Parent 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 IR Parent's fiscal year ended at the end of such quarter and for the
corresponding portion of IR Parent's previous fiscal
year and condensed
consolidated statements of cash flows for the portion of IR Parent's fiscal
year ended at the end of
such quarter and for the corresponding portion of IR
Parent'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 IR Parent;
(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 IR Parent (i) setting forth in reasonable
detail the calculations required to
establish whether IR Parent 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 IR Parent 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 or IR Parent obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief
financial officer or the treasurer of
the Borrower or IR Parent, as applicable, setting forth the details thereof and
the action
which the Borrower or IR Parent, as applicable, is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of IR
Parent 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 IR
Parent shall have filed with the Securities and Exchange
Commission; provided that, unless the Administrative Agent notifies
IR
Parent 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 or IR Parent obtains knowledge of a change or a
proposed change
in the rating of Borrower's or IR Parent's outstanding senior unsecured
long-term debt securities by Xxxxx'x
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, IR Parent and their
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, to the
extent permitted by law or
regulation, each such Bank agrees to notify the
Borrower or IR Parent, as applicable, prior to any such disclosure required by
law.
SECTION 5.2. Maintenance of Property; Insurance.
(a) IR Parent 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 IR Parent and its Consolidated Subsidiaries,
considered as a whole.
(b) Both the Borrower and IR Parent will maintain, and will cause
each Material Subsidiary to maintain (either in the name of the
Borrower, IR
Parent 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. Each of the Borrower and IR Parent 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, IR
Parent
and their 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 IR Parent 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 or
IR Parent in
good faith determines that such termination is in the best interest of the
Borrower or IR
Parent and is not materially disadvantageous to the Banks.
SECTION 5.4. Compliance
with Laws. Each of the Borrower and IR Parent 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 IR
Parent 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, IR Parent 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) Neither the Borrower
nor IR Parent will, nor will they 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, IR Parent 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 and IR Parent
hereunder and under the Notes
(together, if the Borrower and IR Parent shall so determine, with any other
indebtedness then or
thereafter existing created, assumed or guaranteed by the
Borrower, IR Parent or such Restricted Subsidiary ranking equally with the
Loans and the obligations of the Borrower and IR Parent 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, IR Parent or a Restricted Subsidiary, or to secure any
indebtedness
incurred by the Borrower, IR Parent 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, IR
Parent 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, IR Parent 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, IR Parent or a
Restricted
Subsidiary; or
(iv) on property of a Restricted Subsidiary to secure indebtedness
of such Restricted Subsidiary to the Borrower, IR Parent
or another Restricted
Subsidiary; or
(v) on property of the Borrower, IR Parent 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, IR Parent 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, IR Parent 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, IR Parent and
their 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,
neither the Borrower nor IR Parent will permit any Subsidiary
(other than a
Restricted Subsidiary) to which after the date hereof the Borrower, IR Parent
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, IR
Parent or such Restricted
Subsidiary making such transfer.
(d) Neither the Borrower nor IR Parent will, nor will they permit
any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction,
unless (i) the Borrower, IR Parent 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 and IR
Parent hereunder and under the Notes, or (ii) each of the
Borrower and IR
Parent shall (and in any case each of the Borrower and IR Parent covenants that
it will) apply an amount equal
to the fair value (as determined by the
Borrower's or IR Parent'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
and IR Parent
for money borrowed which by its terms matures at, or may be extended or renewed
at the option of the
Borrower and IR Parent 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. Neither the Borrower nor IR Parent will (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 or IR Parent to any other Person; provided that
the Borrower or IR Parent may merge with another Person if (A) the
Borrower or IR Parent, as applicable, 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, IR Parent
and any Additional Borrower
(i) for working capital purposes, (ii) to support the commercial paper programs
of the Borrower, IR
Parent or such Additional Borrower and (iii) for other
general corporate purposes.
SECTION 5.9. Other
Cross Defaults or Negative Pledges.
Neither the Borrower nor IR Parent shall
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 or IR Parent)
than the provisions of Section 5.6 hereof unless, prior to or
contemporaneously
with such incurrence, the Borrower and IR Parent 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 Additional Borrower 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 or IR Parent shall fail to observe or perform any covenant contained in Sections 5.5 to 5.9, inclusive;
(c) the Borrower or any Additional Borrower 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 Additional Borrower by the Administrative
Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by the Borrower or any Additional Borrower 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, IR Parent 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, IR Parent 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, IR
Parent 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, IR
Parent 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 IR Parent; or, during any period
of 25
consecutive calendar months, directors of IR Parent on the date hereof (the
"Current Board"), or such directors who are
recommended or endorsed for
election to the board of directors of IR Parent 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 IR Parent;
(k) the Borrower shall have designated one or more Additional
Borrowers 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; or the guarantee of
IR Parent made in Section 9.16 hereof
shall cease to be effective or IR Parent 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 Additional Borrowers; 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 Additional Borrower, without any
notice to the Borrower or any Additional Borrower 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 Additional Borrowers.
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. JPMorgan Chase 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 JPMorgan Chase Bank and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of
business with the Borrower, IR Parent or any Subsidiary or Affiliate of the Borrower or IR Parent 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 or IR Parent), 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 or IR Parent) 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. Syndication
Agents and Documentation Agent.
Except as expressly set forth herein, each
Syndication Agent,
in its capacity as such, and the 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 or any Additional
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 Additional Borrower, 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 or such Additional Borrower, as the case may
be, 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
(i)
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 Additional Borrower, 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
Additional Borrower, 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 Additional
Borrower 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
Additional Borrower 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, IR Parent or
any other Additional Borrower, at
the Borrower's 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. Notices, requests and other communications to be given to IR
Parent or any other
Additional Borrower shall be deemed given if such notice,
request or other communication has been given to the Borrower, and
any consent
to be given by IR Parent or any other Additional Borrower shall be deemed given
if such consent has been given on
behalf of IR Parent or such other Additional
Borrower by the Borrower.
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 May 24, 2004, among JPMorgan Chase Bank, X.X.
Xxxxxx Securities, Inc., Xxxxxxxxx-Xxxx
Company and Xxxxxxxxx-Xxxx Company
Limited, 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 and IR Parent each agree 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, IR Parent and the Required Banks (and,
if the rights
or duties of any Agent or Issuing Bank are affected thereby, by
such Agent or Issuing Bank); 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, the consent of the Borrower shall
not be required and the consent of the
Administrative Agent shall not be unreasonably withheld; 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 Additional
Borrower 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
Additional Borrower 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 364-Day Credit Agreement. The Borrower and each of the Banks that is
also a "Bank"
party to the Existing 364-Day Credit Agreement agrees that the
"Commitments" as defined in the Existing 364-Day 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 Existing 364-Day
Credit Agreement. 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 364-Day Credit
Agreement and (ii)
covenants that all accrued and unpaid facility fees and any
other amounts due and payable under the Existing 364-Day Credit
Agreement shall
have been paid on or prior to the Effective Date.
SECTION 9.11. [Intentionally Omitted].
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 and each Additional
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 and each Additional 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 and each Additional Borrower agree, as
applicable, as a separate obligation and notwithstanding any such
judgment, to
indemnify the Applicable Creditor against such loss. The obligations of the Borrower and each Additional
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 or the relevant Additional Borrower.
SECTION 9.13. WAIVER
OF JURY TRIAL. EACH OF THE BORROWER, EACH ADDITIONAL
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. (a) In order to induce the Banks to extend credit to the
Additional Borrowers hereunder, the
Borrower hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety,
the Obligations of the
Additional Borrowers.
The Borrower further agrees that the due and punctual payment of the
Obligations of the Additional Borrowers
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
Additional Borrower 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 Additional
Borrower under
the provisions of this Agreement, any Additional Borrower 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 Additional
Borrower 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
Additional Borrower 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
Additional Borrower 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 Additional Borrower 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 Additional Borrower,
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 Additional
Borrower 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 Additional Borrower to the Bank (it
being understood that, after the discharge of all the Obligations due and
payable from such Additional Borrower, such rights may be exercised by the
Borrower notwithstanding that such Additional Borrower may
remain contingently
liable for indemnity or other Obligations).
(b) In order to induce the Banks to extend credit to the Borrower
hereunder, IR Parent hereby irrevocably and unconditionally
guarantees, as a
primary obligor and not merely as a surety, the Obligations of the Borrower and
each Additional Borrower. IR
Parent
further agrees that the due and punctual payment of the Obligations of the Borrower or any Additional Borrower 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.
IR Parent waives presentment
to, demand of payment from and protest to the Borrower or any Additional
Borrower of any of the
Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of IR Parent
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 the
Borrower or any Additional Borrower under the
provisions of this Agreement, any Additional Borrower Agreement, any 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 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 IR Parent as a matter of law or equity or which would impair or
eliminate any right of IR Parent to subrogation.
IR Parent 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 Additional Borrower or other Subsidiary
or any other Person.
The obligations of IR Parent
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.
IR Parent 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 Additional Borrower 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 IR Parent by virtue
hereof, upon the failure of the Borrower or
any Additional Borrower to pay any Obligation when and as the same shall become
due, whether
at maturity, by acceleration, after notice of prepayment or
otherwise, IR Parent 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. IR Parent 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 IR Parent, IR Parent 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 IR
Parent of any Obligation of the Borrower or any Additional Borrower, each Bank
shall, in a reasonable manner,
assign to IR Parent 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 IR Parent, or
make such disposition thereof as IR Parent shall direct (all without recourse
to any
Bank and without any representation or warranty by any Bank). Upon payment by IR Parent of any sums as
provided above, all rights of IR
Parent against the Borrower or any Additional
Borrower 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 the Borrower or any Additional Borrower
to the Bank (it being understood that, after the discharge of all the
Obligations due and payable from the Borrower and the Additional Borrowers,
such rights may be exercised by IR Parent notwithstanding
that the Borrower may
remain contingently liable for indemnity or other Obligations).
SECTION 9.17. USA Patriot Act.
Each Bank hereby notifies the
Borrower and IR Parent that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"),
it is required to obtain, verify and record information that identifies the
Borrower, IR Parent
and each other Additional Borrower, which information
includes the names and addresses of the Borrower and IR Parent and other
information that will allow such Bank to identify the Borrower and IR Parent in
accordance with the Act.
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.
XXXXXXXXX-XXXX COMPANY
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, XX 00000
Facsimile number: 000-000-0000
XXXXXXXXX-XXXX COMPANY LIMITED
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
c/o Xxxxxxxxx-Xxxx Company
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, XX 00000
Facsimile number: 000-000-0000
JPMORGAN CHASE BANK,
as Administrative Agent and as a Bank
By: __________________________________
Name:
Title:
Commitment: $85,000,000
CITIBANK N.A.,
as Syndication Agent
By: _________________________________
Name:
Title:
CITICORP USA, INC.
By: __________________________________
Name:
Title:
Commitment: $85,000,000
DEUTSCHE BANK SECURITIES INC,
as Syndication Agent
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Commitment: $60,000,000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Documentation Agent and as a Bank
By: ___________________________________
Name:
Title:
Commitment: $60,000,000
BANK OF AMERICA, N.A.
By: ____________________________________
Name:
Title:
Commitment: $25,000,000
BNP PARIBAS
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Commitment: $35,000,000
CREDIT SUISSE FIRST BOSTON
By: ___________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Commitment: $35,000,000
HSBC BANK USA
By: _________________________________
Name:
Title:
Commitment: $35,000,000
THE BANK OF NEW YORK
By: _________________________________
Name:
Title:
Commitment: $20,000,000
MELLON BANK, N.A.
By: _________________________________
Name:
Title:
Commitment: $20,000,000
THE NORTHERN TRUST COMPANY
By: __________________________________
Name:
Title:
Commitment: $20,000,000
SOCIETE GENERALE
By: _________________________________
Name:
Title:
Commitment: $20,000,000
STANDARD CHARTERED BANK
By: ________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Commitment: $20,000,000
WACHOVIA
BANK, N.A.
By:
_________________________________
Name:
Title:
Commitment: $35,000,000
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: __________________________________
Name:
Title:
Commitment: $25,000,000
BANK OF IRELAND CORPORATE
By: __________________________________
Name:
Title:
Commitment: $20,000,000
THE ROYAL BANK OF SCOTLAND plc
By: __________________________________
Name:
Title:
Commitment: $45,000,000
PNC BANK, NATIONAL ASSOCIATION
By: _________________________________
Name:
Title:
Commitment: $20,000,000
UBS LOAN FINANCE LLC
By: _________________________________
Name:
Title:
Commitment: $45,000,000
CALYON NEW YORK BRANCH
By: _________________________________
Name:
Title:
Commitment: $20,000,000
ALLIED IRISH BANKS p.l.c.
By: _________________________________
Name:
Title:
Commitment: $20,000,000
