EXECUTION COPY
U.S. $ 770,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of January 8, 1995
Among
COLGATE-PALMOLIVE COMPANY
as Borrower
THE BANKS NAMED HEREIN
as Banks
CITIBANK, N.A.
as Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
as Co-Agent
and
CITICORP SECURITIES, INC.
and
J.P. MORGAN SECURITIES, INC.
as Arrangers
TABLE OF CONTENTS
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . 12
1.03. Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . 13
2.01. The A Advances. . . . . . . . . . . . . . . . . . . . . . . . 13
2.02. Making the A Advances . . . . . . . . . . . . . . . . . . . . 13
2.03. The B Advances. . . . . . . . . . . . . . . . . . . . . . . . 15
2.04. Utilization and Facility Fees . . . . . . . . . . . . . . . . 19
2.05. Reduction of the Commitments. . . . . . . . . . . . . . . . . 20
2.06. Repayment of A Advances . . . . . . . . . . . . . . . . . . . 20
2.07. Interest on A Advances. . . . . . . . . . . . . . . . . . . . 20
2.08. Additional Interest on Eurodollar Rate Advances . . . . . . . 21
2.09. Interest Rate Determination . . . . . . . . . . . . . . . . . 22
2.10. Prepayments of A Advances . . . . . . . . . . . . . . . . . . 22
2.11. Increased Costs, Etc. . . . . . . . . . . . . . . . . . . . . 23
2.12. Payments and Computations . . . . . . . . . . . . . . . . . . 24
2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.14. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . 28
3.01. Condition Precedent to Initial Advances . . . . . . . . . . . 29
3.02. Conditions Precedent to Each A Borrowing. . . . . . . . . . . 29
3.03. Conditions Precedent to Each B Borrowing. . . . . . . . . . . 30
3.04. Determinations Under Section 3.01 . . . . . . . . . . . . . . 31
4.01. Representations and Warranties of the Borrower. . . . . . . . 31
5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 34
5.02. Negative Covenants. . . . . . . . . . . . . . . . . . . . . . 36
6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 40
7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . 43
7.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . 43
7.03. Citibank and Affiliates. . . . . . . . . . . . . . . . . . . . 44
7.04. Lender Credit Decision. . . . . . . . . . . . . . . . . . . . 44
7.05. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 44
7.06. Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . 45
8.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . 45
8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 46
8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . 46
8.04. Costs, Expenses, Etc. . . . . . . . . . . . . . . . . . . . . 46
8.05. Right of Set-off. . . . . . . . . . . . . . . . . . . . . . . 47
8.06. Binding Effect; Assignment by Borrower. . . . . . . . . . . . 48
8.07. Assignments and Participations. . . . . . . . . . . . . . . . 49
8.08. Change of Control . . . . . . . . . . . . . . . . . . . . . . 51
8.09. Mitigation of Adverse Circumstances . . . . . . . . . . . . . 52
8.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 53
8.11. Execution in Counterparts . . . . . . . . . . . . . . . . . . 53
8.12 Jurisdiction, Etc. . . . . . . . . . . . . . . . . . . . . . . 53
8.13. Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . 54
iv
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Opinion of Counsel to the Agent
Exhibit F - Form of Guaranty
Schedule I - List of Applicable Lending Offices
Schedule 4.01(f) - Disclosed Litigation
EXECUTION COPY
FIVE YEAR CREDIT AGREEMENT
Dated as of January 8, 1995
COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature pages hereof,
Citibank, N.A., as agent (the "Agent") for the Lenders (as hereinafter defined),
and Morgan Guaranty Trust Company of New York, as co-agent (the "Co-Agent"),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as part of
an A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type and having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agent's Account" means the account of the Agent, maintained by the
Agent at Citibank, N.A. with its office at 1 Court Square, 7th Floor, Long
Island City, New York 11120, account no. 36852248, Attention: John
Makrinos.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such Lender
notified by such Lender to the Borrower as its Applicable Lending Office
with respect to such B Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Borrower and
the Agent, in substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as
part of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means a fluctuating interest rate per annum as shall be
in effect from time to time which rate per annum shall at all times be
equal to the highest of:
(a) the average of the rates of interest announced publicly by
the Reference Banks in New York, New York, from time to time, as
their base or prime rate;
(b) 1/4 of one percent per annum above the latest three-week
moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such date is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by the Reference Banks on the
basis of such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of the
average of the quotations for such rates received by each Reference
Bank from three New York certificate of deposit dealers of recognized
standing selected by it, in either case adjusted to the nearest 1/4
of one percent or, if there is no nearest 1/4 of one percent, to the
next higher 1/4 of one percent; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing.
"Borrowing Subsidiary" has the meaning specified in Section 8.06(b).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Change of Control" has the meaning specified in Section 8.08(b).
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated Net Tangible Assets" means, at any time, the excess of
(a) all assets which appear on the most recent consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries prepared in accordance
with generally accepted accounting principles, after deducting therefrom
the sum of:
(i) the book amount appearing on such consolidated balance
sheet of good will, trademarks, trademark rights, trade names, trade
name rights, copyrights, patents, patent rights, licenses,
unamortized debt discount and expense and other like intangibles;
(ii) any write-up in the book value of any asset resulting from
a revaluation thereof subsequent to December 31, 1993, except
write-ups of assets located outside of the United States of America
pursuant to applicable law or custom;
(iii)all reserves, including reserves for deferred taxes,
depreciation, obsolescence, depletion, insurance and inventory
valuation, but excluding contingency reserves not allocated for any
particular purpose and not deducted from assets;
(iv) the amount, if any, at which any shares of capital stock
of the Borrower appear on the asset side of such consolidated balance
sheet; and
(v) the amount of the minority interest, if any, in the shares
of stock and surplus of any Consolidated Subsidiary;
over (b) all current liabilities of the Borrower and its Consolidated
Subsidiaries on a consolidated basis.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would, in accordance with generally accepted
accounting principles, be included with those of the Borrower in its
consolidated financial statements as of such date.
"Debt" means (i) indebtedness for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations to pay the deferred purchase price of property or services
(other than accounts payable in the ordinary course of business), (iv)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases, and (v) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iv) above.
"Disclosed Litigation" has the meaning specified in Section 4.01(f).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower.
"Domestic Subsidiary" means any Subsidiary a majority of the business
of which is conducted within the United States of America, or a majority
of the properties and assets of which are located within the United States
of America, except (i) any Subsidiary substantially all of the assets of
which consist of the securities of Subsidiaries which are not Domestic
Subsidiaries, (ii) any Subsidiary which is an FSC as defined in Section
922 of the Code and (iii) any Subsidiary for any period during which an
election under Section 936 of the Code applies to such Subsidiary.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to the environment including, without limitation, (a)
by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to the
environment or Hazardous Materials and applicable to the Borrower or its
Subsidiaries or any property owned or operated by the Borrower or its
Subsidiaries under the laws of the jurisdiction where the Borrower or such
Subsidiary or property is located.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by
the PBGC; (b) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (c) the cessation of operations at a facility
of the Borrower or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by the Borrower
or any of its ERISA Affiliates from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (e) the failure by the Borrower or any of its ERISA
Affiliates to make a payment to a Plan if the conditions for imposition of
a lien under Section 302(f)(1) of ERISA are satisfied; (f) the adoption of
an amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that could constitute grounds for the termination of, or the appointment
of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing (or, if such Borrowing is a B Borrowing,
equal to $1,000,000) and for a period equal to such Interest Period. The
Eurodollar Rate for the Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on
the basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(c) or a B Advance which bears interest as
provided in Section 2.03(h) for a Quoted Margin Advance.
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
each Reference Bank from three Federal funds brokers of recognized
standing selected by it.
"Guaranty" has the meaning specified in Section 8.06(b).
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic," or words of similar import, under any federal,
state, local or foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or agency interpretation, policy or guidance and
applicable to the Borrower or its Subsidiaries or any property owned or
operated by the Borrower or its Subsidiaries under the laws of the
jurisdiction where the Borrower or such Subsidiary or property is located.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Advance (other than a Base Rate
Advance) comprising part of the same Borrowing, the period commencing on
the date of such Advance and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be 1, 2, 3 or 6 months in the case of a
Eurodollar Rate Advance, or in the case of a B Advance, such period as the
Borrower may select by notice received by the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the first day
of such Interest Period; provided, however, that:
(i) the Borrower may not select any Interest Period which ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration;
(iii)whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, in the case of any Interest Period
for a Eurodollar Rate Advance, that if such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Lenders" means the Banks listed on the signature pages hereof and
each assignee that shall become a party hereto pursuant to Section 8.07 or
Section 2.11(c).
"Lien" means any mortgage, lien, pledge, security interest,
encumbrance or charge of any kind, any conditional sale or other title
retention agreement or any lease in the nature thereof, provided that the
term "Lien" shall not include any lease involved in a Sale and Leaseback
Transaction.
"Major Domestic Manufacturing Property" means any Principal Domestic
Manufacturing Property the net depreciated book value of which on the date
as of which the determination is made exceeds 2.5% of Consolidated Net
Tangible Assets.
"Material Adverse Change" means any material adverse change in the
business, condition or operations of the Borrower and its Consolidated
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on the
business, condition or operations of the Borrower and its Consolidated
Subsidiaries taken as a whole.
"Moody's" means Moody's Investors Service, Inc. or any successor to
its business of rating long-term debt.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding three plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and at least one Person other than
the Borrower and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section 2.03(b).
"Offer" has the meaning specified in Section 2.03(c).
"Operating Cash Flow" of the Borrower and its Subsidiaries for any
period means (A) net income for such period plus (B) the sum of all
non-cash expenses and charges deducted in arriving at net income for such
period, including but not limited to allowances for depreciation and
amortization and accruals for interest and taxes to the extent that they
exceed payments for interest and taxes during the period, less (C) (i) all
payments of interest and taxes during the period to the extent that they
exceed accruals for interest and taxes for the period and (ii) other
payments of expenses not deducted in arriving at net income for the period
and (D) less net gains or plus net losses from the sale or other
disposition of fixed assets or businesses for the period, to the extent
they were included in computing net income for the period, but the
Borrower may exclude from the computation under this clause (D) any gains
from the sale of certain parcels of real estate in New Jersey pursuant to
its present program to develop and sell them over a period of years;
provided that the aggregate number of parcels in the program shall not
exceed 35.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Principal Domestic Manufacturing Property" means any building,
structure or facility (including the land on which it is located and the
improvements and fixtures constituting a part thereof) used primarily for
manufacturing or processing which is owned or leased by the Borrower or
any of its Subsidiaries, is located in the United States of America and
the net depreciated book value of which on the date as of which the
determination is made exceeds 1% of Consolidated Net Tangible Assets,
except any such building, structure or facility which the Board of
Directors of the Borrower by resolution declares is not of material
importance to the total business conducted by the Borrower and its
Subsidiaries as an entirety.
"Principal Domestic Subsidiary" means (i) each Subsidiary which owns
or leases a Principal Domestic Manufacturing Property, (ii) each Domestic
Subsidiary the consolidated net worth of which exceeds 2.5% of
Consolidated Net Tangible Assets (as set forth in the most recent
financial statements referred to in Section 4.01(e) or delivered pursuant
to Section 5.01(e)(i) or (ii)), and (iii) each Domestic Subsidiary of each
Subsidiary referred to in the foregoing clause (i) or (ii) except any such
Subsidiary the accounts receivable and inventories of which have an
aggregate net book value of less than $5,000,000.
"Quoted Margin", "Quoted Margin Advance", "Quoted Rate" and "Quoted
Rate Advance" shall have the respective meanings specified in Section
2.03(b).
"Reference Banks" means Citibank, N.A. and Morgan Guaranty Trust
Company of New York.
"Register" has the meaning specified in Section 8.07(c).
"Rentals" with respect to any lease and for any period means the
aggregate amounts payable by the lessee pursuant to the terms of the lease
for such period, whether or not referred to as rent. Whenever it is
necessary to determine the amount of Rentals for any period in the future
and to the extent that such Rentals are not definitely determinable by the
terms of the lease, for the purpose of this definition such Rentals may be
estimated in such reasonable manner as the Borrower may determine.
"Required Lenders" means at any time Lenders holding at least 66-2/3%
of the then aggregate unpaid principal amount of the A Notes held by
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 66-2/3% of the Commitments (provided that, for purposes
hereof, neither the Borrower, nor any of its Affiliates, if a Lender,
shall be included in (i) the Lenders holding such amount of the A Advances
or having such amount of the Commitments or (ii) determining the aggregate
unpaid principal amount of the A Advances or the total Commitments).
"Restricted Property" means and includes (i) all Principal Domestic
Manufacturing Properties, (ii) all Securities of all Principal Domestic
Subsidiaries, and (iii) all inventories and accounts receivable of the
Borrower and its Principal Domestic Subsidiaries.
"S&P" means Standard & Poor's Corporation or any successor to its
business of rating long-term debt.
"Sale and Leaseback Debt" of any Person means, at the date of
determination thereof, the aggregate amount of Rentals required to be paid
by such Person under all Sale and Leaseback Transactions to which such
Person is a party during the respective remaining terms thereof (after
giving effect to any renewals and extensions at the option of the lessor)
discounted from the respective dates of payment of such Rentals to such
date of determination at the actual interest factor included in such
Rentals or, if such interest factor cannot be readily determined, at an
interest factor calculated in such manner as the Borrower shall reasonably
determine; provided, however, that if any portion of the net proceeds of
the sale of the property leased pursuant to a Sale and Leaseback
Transaction has been or is being applied as provided in Section
5.02(b)(ii) and/or Section 5.02(b)(iii), there shall be excluded in
determining Sale and Leaseback Debt that portion of the discounted Rentals
required to be paid under such Sale and Leaseback Transaction which bears
the same ratio to the total discounted Rentals required to be paid under
such Sale and Leaseback Transaction as the portion of such net proceeds
which has been or is being applied as provided in Section 5.02(b)(ii)
and/or Section 5.02(b)(iii) bears to the total amount of such net
proceeds.
"Sale and Leaseback Transaction" means any arrangement directly or
indirectly providing for the leasing by the Borrower or any Principal
Domestic Subsidiary for a period in excess of three years of any Principal
Domestic Manufacturing Property which was sold or transferred by the
Borrower or any Principal Domestic Subsidiary more than 120 days after the
acquisition thereof or the completion of construction thereof, except any
such arrangement solely between the Borrower and a Principal Domestic
Subsidiary or solely between Principal Domestic Subsidiaries.
"Securities" of any corporation means and includes (i) all capital
stock of all classes of and all other equity interests in such corporation
and all rights, options or warrants to acquire the same, and (ii) all
promissory notes, debentures, bonds and other evidences of Debt of such
corporation.
"Senior Funded Debt" of any Person means, as of the date of
determination thereof, all Debt of such Person which (i) matures by its
terms more than one year after the date as of which such determination is
made (including any such Debt which is renewable or extendable, or in
effect renewable or extendable through the operation of a revolving credit
agreement or other similar agreement, at the option of such Person for a
period or periods ending more than one year after the date as of which
such determination is made), and (ii) is not, by the terms of any
instrument or instruments evidencing or securing such Debt or pursuant to
which such Debt is outstanding, expressly subordinated in right of payment
to any other Debt of such Person.
"Significant Subsidiary" means (x) each Subsidiary which is a
Principal Domestic Subsidiary by operation of clause (i), (ii) or (iii) of
the definition of Principal Domestic Subsidiary, and (y) each other
Subsidiary whose assets as at the end of the fiscal year immediately
preceding the time of determination exceeded 2% of consolidated assets of
the Borrower and its Subsidiaries as at the end of such fiscal year.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and no Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any of its ERISA Affiliates could have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"Subsidiary" means any corporation of which more than 50% of the
outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether or
not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by the Borrower,
by the Borrower and one or more other Subsidiaries, or by one or more
other Subsidiaries.
"Termination Date" means the earlier of (a) January 31, 2000 and (b)
the date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to the Borrower
or a Borrowing Subsidiary from time to time on any Business Day during the
period from the date hereof until the Termination Date in an aggregate amount
not to exceed at any time outstanding the amount set opposite such Lender's name
on the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to
Section 2.05 (such Lender's "Commitment"), provided that the aggregate amount of
the Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the B Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be applied to the
Lenders ratably according to their respective Commitments (such deemed use of
the aggregate amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount not less than $25,000,000 or an integral
multiple of $5,000,000 in excess thereof (unless the aggregate amount of the
unused Commitments is less than $25,000,000, in which case such Borrowing shall
be equal to the aggregate amount of the unused Commitments) and shall consist of
A Advances of the same Type and having the same Interest Period made on the same
day by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may from time to time borrow,
repay pursuant to Section 2.06 or prepay pursuant to Section 2.10 or 2.11(b) and
reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be
made on notice given by the Borrower or a Borrowing Subsidiary, as the case may
be, and received by the Agent, which shall give prompt notice thereof to each
Lender by telecopier or telex, not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed A Borrowing in the case
of Eurodollar Rate Advances, or the same Business Day in the case of Base Rate
Advances. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall
be given by telecopier, telex or cable, confirmed immediately by hand or by
mail, in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such
A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing comprised of Eurodollar Rate Advances, the Interest Period for
each such A Advance. Upon fulfillment of the applicable conditions set forth in
Article III, each Lender shall, before 12:00 noon (New York City time) on the
date of such A Borrowing, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in immediately available
funds, such Lender's ratable portion of such A Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will promptly make such funds available to the
Borrower at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding:
(i) if any Lender shall, at least one Business Day before the date of
any requested Borrowing, notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts
that it is unlawful, for such Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to
fund or maintain Eurodollar Rate Advances hereunder, the Agent shall
immediately notify the Borrower and each other Lender and the right of the
Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances
for the portion of such Borrowing advanced by the Lender which has
provided the notice described above or the portion of any subsequent
Borrowing advanced by such Lender shall be suspended until such Lender
shall notify the Agent and the Agent will notify the Borrower that the
circumstances causing such suspension no longer exist, and each such
Advance shall be a Base Rate Advance;
(ii) if no Reference Bank furnishes timely information to the Agent
for determining the Eurodollar Rate for any Eurodollar Rate Advances
comprising any requested Borrowing, theAgent shall immediately notify each
Lender and the Borrower and the right of the Borrower and any Borrowing
Subsidiary to select Eurodollar Rate Advances for such Borrowing or any
subsequent Borrowing shall be suspended until the Agent shall notify the
Lenders and the Borrower that the circumstances causing such suspension no
longer exist, and each Advance comprising such Borrowing shall be a Base
Rate Advance; and
(iii) if the Required Lenders shall, at least one Business Day before
the date of any requested Borrowing, notify the Agent that the Eurodollar
Rate for Eurodollar Rate Advances comprising such Borrowing will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Borrowing,
the Agent shall immediately notify the Borrower and each other Lender and
the right of the Borrower and any Borrowing Subsidiary to select
Eurodollar Rate Advances for such Borrowing or any subsequent Borrowing
shall be suspended, and each Advance comprising such Borrowing shall be a
Base Rate Advance. The Lenders will review regularly the circumstances
causing such suspension, and as soon as such circumstances no longer exist
the Required Lenders will notify Agent and the Agent shall notify the
Borrower that such suspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower or Borrowing Subsidiary, as the case may be. In the case of any A
Borrowing that the related Notice of A Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower or Borrowing Subsidiary, as the case may
be, shall indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding in any event loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the A Advance to be made by such Lender as part of such A
Borrowing when such A Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any A Borrowing that such Lender will not make available to the
Agent such Lender's ratable portion of such A Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such A Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the 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 until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
the Borrower or a Borrowing Subsidiary, as the case may be, may request B
Borrowings under this Section 2.03 from time to time on any Business Day during
the period from the date hereof until the date occurring one week prior to the
Termination Date, in the manner set forth below; provided that, following the
making of each B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any B Reduction).
(b) The Borrower or a Borrowing Subsidiary, as the case may be, may
request a B Borrowing under this Section 2.03 by delivering to the Agent, by
telecopier, telex or cable, confirmed immediately by hand or by mail, a notice
of a B Borrowing (a "Notice of B Borrowing"), in substantially the form of
Exhibit B-2 hereto, specifying:
(i) the date and aggregate amount of the proposed B Borrowing (which
shall not be less than $25,000,000 or an integral multiple of $5,000,000
in excess thereof; provided that if the aggregate amount of the unused
Commitments is less than $25,000,000, the amount of such proposed
Borrowing shall be equal to the aggregate amount of the unused
Commitments),
(ii) whether each Lender should quote (x) a rate of interest (a
"Quoted Rate") to be the entire rate applicable to the proposed B Advance
(a "Quoted Rate Advance") or (y) a marginal per annum rate (a "Quoted
Margin") to be added to the Eurodollar Rate for an Interest Period equal
to the term of the proposed B Borrowing (a "Quoted Margin Advance"),
(iii) the maturity date for repayment of each B Advance to be made as
part of such B Borrowing (which maturity date may not be earlier than the
date occurring one week after the date of such B Borrowing and may not be
later than the Termination Date),
(iv) the interest payment date or dates relating thereto, and
(v) any other terms to be applicable to such B Borrowing,
not later than 10:00 A.M. (New York City time) (A) at least one Business Day
prior to the date of the proposed B Borrowing, in the case of a Quoted Rate
Advance and (B) at least five Business Days prior to the date of the proposed B
Borrowing, in the case of a Quoted Margin Advance. The Agent shall in turn
promptly notify each Lender of each request for a B Borrowing received by it
from the Borrower or a Borrowing Subsidiary, as the case may be, by sending such
Lender a copy of the related Notice of B Borrowing.
(c) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower or Borrowing
Subsidiary, as the case may be, as part of such proposed B Borrowing at a rate
or rates of interest specified by such Lender in its sole discretion, by
delivering written notice (an "Offer") to the Agent (which shall give prompt
notice thereof to the Borrower or Borrowing Subsidiary, as the case may be)
before 9:30 A.M. (New York City time) on the date of such proposed B Borrowing,
in the case of a Quoted Rate Advance and before 10:00 A.M. (New York City time)
three Business Days before the date of such proposed B Borrowing, in the case of
a Quoted Margin Advance, specifying (x) the minimum amount and maximum amount of
each B Advance which such Lender would be willing to make as part of such
proposed B Borrowing (which amounts may, subject to the proviso to Section
2.03(a), exceed such Lender's Commitment, if any), (y) a Quoted Rate or a Quoted
Margin therefor (as requested by the Notice of B Borrowing) and (z) such
Lender's Applicable Lending Office with respect to such B Advance; provided that
if the Agent in its capacity as a Lender shall, in its sole discretion, elect to
make any such Offer, it shall notify the Borrower of such Offer at least 30
minutes before the time and on the date on which notice of such election is to
be given to the Agent by the other Lenders. If any Lender shall elect not to
make an Offer, such Lender shall so notify the Agent before the time and on the
date on which notice of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make any B
Advance as part of such B Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make any B
Advance as part of such proposed B Borrowing.
(d) The Borrower or Borrowing Subsidiary, as the case may be, shall,
in turn, (A) before 10:30 A.M. (New York City time) on the date of such proposed
B Borrowing, in the case of a Quoted Rate Advance and (B) before 11:00 A.M. (New
York City time) three Business Days before the date of such proposed B
Borrowing, in the case of a Quoted Margin Advance, either
(i) cancel such B Borrowing by giving the Agent notice to that
effect, and such B Borrowing shall not be made, or
(ii) accept one or more of the Offers made by any Lender or Lenders
pursuant to paragraph (c) above, in its sole discretion, by giving notice
to the Agent of the amount of each B Advance to be made by each Lender as
part of such B Borrowing (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount, offered
to the Borrower or Borrowing Subsidiary, as the case may be, by the Agent
on behalf of such Lender for such B Advance in such Lender's notice given
pursuant to subsection (c) above), and such notice shall reject any
remaining Offers made by Lenders pursuant to subsection (c) above,
provided that (x) the Borrower or Borrowing Subsidiary, as the case may
be, shall not accept Offers for an aggregate principal amount of B
Advances in excess of the aggregate principal amount stated in the Notice
of B Borrowing, (y) the Borrower or Borrowing Subsidiary, as the case may
be, shall not accept any Offer unless all Offers specifying a lower Quoted
Rate or Quoted Margin, as the case may be, are also accepted, and (z) if
all Offers specifying the same Quoted Rate or Quoted Margin, as the case
may be, are not accepted in full, the Borrower or Borrowing Subsidiary, as
the case may be, shall apportion its acceptances among such Offers in
proportion to the respective principal amounts of such Offers (rounded,
where necessary, to the nearest $1,000,000).
(iii) If the Borrower notifies the Agent that such B Borrowing is
cancelled pursuant to paragraph (d)(i) above, the Agent shall give prompt
notice thereof to the Lenders and such B Borrowing shall not be made.
(e) If the Borrower accepts one or more of the Offers, the Agent
shall in turn promptly (but in any event, not later than 11:30 A.M. on such
date) notify (A) each Lender that has made an Offer, of the date and aggregate
amount of such B Borrowing and whether or not any Offer made by such Lender has
been accepted by the Borrower, (B) each Lender that is to make a B Advance as
part of such B Borrowing, of the amount of each B Advance to be made by such
Lender as part of such B Borrowing, and (C) each Lender that is to make a B
Advance as part of such B Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a B Advance as part of such B Borrowing
shall, before 12:00 noon (New York City time) on the date of such B Borrowing
specified in the notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at the Agent's
Account, in immediately available funds, such Lender's portion of such B
Borrowing. Upon fulfillment of the applicable conditions set forth in Article
III and after receipt by the Agent of such funds, the Agent will make such funds
promptly available to the Borrower at the Agent's address referred to in Section
8.02. Promptly after each B Borrowing the Agent will notify each Lender of the
amount of the B Borrowing, the consequent B Reduction and the dates upon which
such B Reduction commenced and will terminate.
(f) If the Borrower notifies the Agent that it accepts one or more of
the Offers made by any Lender or Lenders pursuant to paragraph (d)(ii) above,
such notice of acceptance shall be irrevocable and binding on the Borrower. The
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in the related Notice of B Borrowing for such B Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (excluding in any event loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the B Advance to be made by such Lender as part
of such B Borrowing when such B Advance, as a result of such failure, is not
made on such date.
(g) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (h) below, and reborrow under this Section
2.03, provided that a B Borrowing shall not be made within three Business Days
of the date of any other B Borrowing.
(h) The Borrower shall repay to the Agent for the account of each
Lender that has made a B Advance, or for the account of each other holder of a B
Note, on the maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the related Notice
of B Borrowing and provided in the B Note evidencing such B Advance), the then
unpaid principal amount of such B Advance. The Borrower shall have no right to
prepay any principal amount of any B Advance.
(i) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is repaid in full, at (x) the Quoted Rate, in the case of a
Quoted Rate Advance, and (y) at the sum of the Eurodollar Rate for the Interest
Period of such B Advance plus the Quoted Margin, in the case of a Quoted Margin
Advance, in each case as specified for such B Advance by the Lender making such
B Advance in its Offer with respect thereto, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing and set forth in the B Note evidencing such B Advance.
(j) The indebtedness of the Borrower resulting from each B Advance
made to the Borrower as part of a B Borrowing shall be evidenced by a separate B
Note of the Borrower payable to the order of the Lender making such B Advance.
(k) Upon delivery of each Notice of B Borrowing, the Borrower shall
pay a non-refundable fee to the Agent for its own account in such amount as
shall have been agreed to in writing by the Borrower and the Agent.
SECTION 2.04. Utilization and Facility Fees. (a) The Borrower agrees
to pay to the Agent for the account of each Lender (i) a utilization fee on the
average daily amount of such Lender's Commitment (whether or not used) and (ii)
a facility fee on the average daily amount of such Lender's Commitment (whether
or not used), each accruing from the date on which this Agreement becomes fully
executed in the case of each Bank and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date, payable on the last day of each
March, June, September and December during the term of such Lender's Commitment,
commencing March 31, 1995, and on the Termination Date, computed from time to
time at the rates per annum set forth below under the headings Utilization Fee
and Facility Fee, respectively, opposite the lower of the ratings then
applicable to the Borrower's long-term senior debt as published by S&P and
Moody's:
Utilization Facility
Moody's S&P Fee Fee
A3 or above and A- or above 0.000 % 0.125 %
Baa2 or above and BBB or above 0.070 % 0.175 %
Lower than above or not rated 0.150 % 0.250 %
provided, however, that the utilization fee shall be payable only with respect
to days on which the sum of the average daily unpaid principal amount of all
Advances hereunder is in excess of fifty percent of the average daily amount of
the sum of the Commitments hereunder.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.05. Reduction of the Commitments. The Borrower shall have
the right, upon at least three Business Days' notice to the Agent, to terminate
in whole all of the Commitments or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount which is less
than the aggregate principal amount of the Advances then outstanding, and
provided further that each partial reduction (other than a reduction pursuant to
Section 2.11) shall be in the aggregate amount of $25,000,000 or an integral
multiple thereof.
SECTION 2.06. Repayment of A Advances. The Borrower or Borrowing
Subsidiary, as the case may be, shall repay to the Agent for the ratable account
of the Lenders (a) on the Termination Date the unpaid principal amount of each
Base Rate Advance made to the Borrower or Borrowing Subsidiary, as the case may
be, and (b) on the last day of the Interest Period for each other A Advance made
to the Borrower or Borrowing Subsidiary, as the case may be, the unpaid
principal amount of such A Advance.
SECTION 2.07. Interest on A Advances. The Borrower or Borrowing
Subsidiary, as the case may be, shall pay interest on the unpaid principal
amount of each A Advance made by each Lender to the Borrower or Borrowing
Subsidiary, as the case may be, from the date of such A Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base Rate Advance, a
rate per annum equal at all times to the Base Rate in effect from time to
time, payable quarterly on the last day of each March, June, September,
and December during such period and on the date such Base Rate Advance
shall be paid in full; provided that any amount of principal which is not
paid when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest, from the date on which such amount is due until such
amount is paid in full, payable on demand, at a rate per annum equal at
all times to 1% per annum above the Base Rate in effect from time to time.
(b) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, a rate per annum equal during the Interest Period for such A
Advance to the sum of the Eurodollar Rate for such Interest Period plus
the per annum rate equal from time to time to the rate set forth below
opposite the lower of the ratings then applicable to the Borrower's
long-term senior debt as published by S&P and Moody's:
Moody's S&P Rate
A3 or above A- or above 0.200 %
Baa2 BBB 0.225 %
Lower than above or not rated 0.300 %
payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day which occurs
during such Interest Period every three months from the first day of such
Interest Period; provided that any amount of principal which is not paid
when due (whether at stated maturity, by acceleration or otherwise) shall
bear interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal to (x) until
the end of the then current Interest Period, 1% per annum above the rate
per annum required to be paid on such A Advance immediately prior to the
date on which such amount became due, and (y) thereafter, 1% per annum
above the Base Rate in effect from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances. The
Borrower or Borrowing Subsidiary, as the case may be, shall pay to each Lender,
so long as such Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender to the Borrower or Borrowing Subsidiary, as the case may
be, from the date of such Advance until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Lender and the
Borrower or Borrowing Subsidiary, as the case may be, shall be notified of such
additional interest.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
the Base Rate from time to time in effect and each Eurodollar Rate, as
applicable.
(b) The Agent shall give prompt notice to the Borrower or Borrowing
Subsidiary and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.03(i)(y) or Section 2.07, and the rate, if any,
furnished by the Reference Banks for the purpose of determining the interest
rate.
(c) If no Reference Bank furnishes timely information to the Agent for
determining the Base Rate in effect from time to time when Base Rate Advances
are outstanding, the Agent shall immediately give notice to each Lender and the
Required Lenders shall immediately designate an additional Reference Bank for
the purpose of determining the Base Rate, but such designation shall terminate
if a replacement Reference Bank is nominated and approved as provided in the
following sentence. Whenever a Reference Bank either ceases to be a Lender or
repeatedly fails to give timely information to the Agent for determining the
Base Rate or the Eurodollar Rate, the Agent will give prompt notice thereof to
the Lenders and will nominate another Lender to replace such Reference Bank, and
such Lender shall, if approved by the Required Lenders and the Borrower, replace
such Reference Bank.
SECTION 2.10. Prepayments of A Advances. The Borrower or a Borrowing
Subsidiary, as the case may be, may, upon notice to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, or if the Borrower or Borrowing Subsidiary, as the case may be,
is required to prepay any A Advance pursuant to Section 2.11(c) or 5.02(b)(ii)
hereof, the Borrower or Borrowing Subsidiary, as the case may be, shall, prepay
the outstanding principal amounts of the A Advances comprising part of the same
A Borrowing in whole or ratably in part (provided that with regard to
prepayments made pursuant to Section 2.11(c), the Borrower or such Borrowing
Subsidiary shall be required to prepay only the outstanding principal amounts of
the A Advances owing to the Lender or Lenders affected by Section 2.11(c)),
together with accrued interest to the date of such prepayment on the principal
amount prepaid, and the losses, costs and expenses, if any, payable pursuant to
Section 8.04(c). Such notice shall be received by the Agent, not later than
11:00 A.M. (New York City time), on the third Business Day prior to the date of
the proposed prepayment in the case of Eurodollar Rate Advances, or on the
Business Day prior to such date in the case of Base Rate Advances. Except for
prepayments made pursuant to Section 2.11(c) or 5.02(b), each partial prepayment
shall be in an aggregate principal amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and any partial prepayment of
any Eurodollar Rate Advances shall not leave outstanding less than $25,000,000
aggregate principal amount of such A Advances comprising part of any A
Borrowing.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurodollar Rate Advances,
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the costs to any Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances,
then the Borrower shall from time to time, upon demand by such Lender (with a
copy of such demand to the Agent), pay to the Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased costs for a period beginning not more than 90 days prior to such
demand. A certificate as to the amount of such increased cost submitted to the
Borrower and the Agent by such Lender, setting forth in reasonable detail the
calculation of the increased costs, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender which decreases such Lender's
return on its capital (after taking into account any changes in the Eurodollar
Rate and Eurodollar Rate Reserve Percentage) and that the amount of such capital
is increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall immediately pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder, such compensation to cover a
period beginning not more than 90 days prior to such demand. A certificate as to
such amounts submitted to the Borrower and the Agent by such Lender, setting
forth in reasonable detail the calculation of the amount required to be paid
hereunder, shall be conclusive and binding for all purposes, absent manifest
error.
(c) Within 30 days after the receipt of (A) notice from a Lender as
described in Section 2.02(b)(i), or (B) a demand for compensation from a Lender
under subsection (a) or (b) above, the Borrower may, by at least three Business
Days' notice to the Agent, terminate the Commitment (in whole but not in part)
of any Lender which has provided such notice under Section 2.02(b)(i), or
demanded compensation under subsection (a) or (b) above in an amount (expressed
as a percentage per annum of its unused Commitment) which exceeds the
compensation demanded by the other Lenders, provided that (i) the Borrower shall
first pay to the Agent for the account of such Lender all compensation required
to be paid under subsection (a) or (b) above accrued to the termination date of
such Commitment, (ii) the Borrower shall first prepay all outstanding A Advances
owing to such Lender in accordance with the provisions of Section 2.10 hereof,
(iii) the Borrower shall not terminate the Commitment of any Lender under this
subsection unless it also terminates the Commitment of all other Lenders
providing similar notice to the Agent under Section 2.02(b)(i) or demanding
compensation at a rate equal to or higher than that demanded by such Lender
under subsection (a) or (b) above, and (iv) the Borrower shall not take any
action under this subsection which would reduce the aggregate of the Commitments
below the aggregate of the Advances outstanding. Effective with such
termination, the Borrower may substitute for such Lender one or more other banks
or entities which will assume the Commitment and other obligations hereunder of
such terminated Lender or Lenders, and will become a Lender or Lenders hereunder
upon executing an assumption agreement in form and substance reasonably
satisfactory to the Borrower and the Required Lenders.
SECTION 2.12. Payments and Computations. (a) The Borrower or
Borrowing Subsidiary, as the case may be, shall make each payment hereunder and
under the Notes not later than 11:00 A.M. (New York City time) on the day when
due in U.S. dollars to the Agent at the Agent's Account in immediately available
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or utilization or facility fees
ratably (other than amounts payable pursuant to Section 2.03, 2.11, 2.14, or
8.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to payment of any other amount payable to any
Lender to such Lender for the account of its Applicable Lending Office, in each
case to be applied according to the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(d), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender's assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) Each of the Borrower and any Borrowing Subsidiary hereby
authorizes each Lender, if and to the extent payment owed to such Lender is not
made when due hereunder or under any Note held by such Lender, to charge from
time to time against any or all of the Borrower's or such Borrowing
Subsidiary's, as the case may be, accounts with such Lender any amount so due.
(c) All computations of interest based on clause (a) of the
definition of "Base Rate" shall be made by the Agent on the basis of a year of
365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate, a Quoted Rate or the Federal Funds Rate and of commitment
fees and facility fees shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, commitment fee or facility
fee, as the case may be; provided, however, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
(f) The date and amount of each A Advance owing to each Lender, the
date on which it is due, the interest rate applicable thereto and any
prepayments thereof shall be recorded by the Agent in the Register, which shall
be presumptive evidence thereof, whether or not the same is endorsed on the grid
annexed to such Lender's A Note.
SECTION 2.13. Taxes. (a) Subject to subsection (f) below, any and all
payments hereunder or under the A Notes shall be made, in accordance with
Section 2.12, (i) if made by the Borrower, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings of the United States of America or any state thereof or
political subdivision of any of them or any other jurisdiction from or through
which the Borrower elects to make such payment, and all liabilities with respect
thereto, and (ii) if made by a Borrowing Subsidiary, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings of any jurisdiction within which it is
organized or does business or is managed or controlled or has its head or
principal office or from or through which such Borrowing Subsidiary elects to
make such payment, and all liabilities with respect thereto, excluding (w) in
the case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by any jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or, as to the United
States of America or any state thereof or any political subdivision of any of
them, is doing business or any political subdivision thereof and by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof, (x) in the case of each Lender and the Agent, any income
tax or franchise tax imposed on it by a jurisdiction (except the United States
of America or any state thereof or any political subdivision of any of them) as
a result of a connection between such jurisdiction and such Lender or the Agent
(as the case may be) (other than as a result of such Lender's or the Agent's
having entered into this Agreement, performing hereunder or enforcing this
Agreement), (y) any payment of tax which the Borrower is obliged to make
pursuant to Section 159 of the Income and Corporation Taxes Act 1970 of the
United Kingdom (or any re-enactment or replacement thereof) on behalf of a
Lender which is resident for tax purposes in the United Kingdom but is not
recognized as a bank by H.M. Inland Revenue and (z) Other Taxes as defined in
subsection (b) below, (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower or any Borrowing Subsidiary shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any A Note to
any Lender or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower or such Borrowing
Subsidiary shall make such deductions and (iii) the Borrower or such Borrowing
Subsidiary shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower or the Borrowing Subsidiary shall pay
any present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under the A Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the A Notes (hereinafter referred
to as "Other Taxes"). Each Bank and the Agent represents that at the date of
this Agreement it is not aware of any Other Taxes applicable to it. Each Lender
and the Agent agrees to notify the Borrower or such Borrowing Subsidiary on
becoming aware of the imposition of any such Other Taxes.
(c) The Borrower or the Borrowing Subsidiary will indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest and expenses
not attributable to acts or omissions of any party other than the Borrower or
such Borrowing Subsidiary) arising therefrom or with respect thereto. This
indemnification shall be paid within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes
(other than Taxes of the United States of America or any state thereof or
political subdivision of any of them), the Borrower or the Borrowing Subsidiary
will furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment thereof (if any
such receipt is reasonably available), other evidence of such payment or, if
neither a receipt nor other evidence is available, a statement by the Borrower
or such Borrowing Subsidiary confirming payment thereof. If no such Taxes are
payable in respect of any payment hereunder or under the A Notes, the Borrower
or such Borrowing Subsidiary will at the request of a Lender or the Agent
furnish to the Agent, an opinion of counsel for the Borrower or such Borrowing
Subsidiary stating that such payment is exempt from or not subject to Taxes.
(e) Each Lender and the Agent will, from time to time as requested by
the Borrower or the Borrowing Subsidiary in writing, provide the Borrower or the
Borrowing Subsidiary with any applicable forms, completed and signed, that may
be required by the tax authority of a jurisdiction in order to certify such
Lender's or the Agent's exemption from or applicable reduction in any applicable
Taxes of such jurisdiction with respect to any and all payments that are subject
to such an exemption or reduction to be made to such Lender or the Agent
hereunder and under the A Notes, if the Lender or the Agent is entitled to such
an exemption or reduction.
(f) Notwithstanding anything contained herein to the contrary, the
Borrower or the Borrowing Subsidiary shall not be required to pay any additional
amounts pursuant to this Section on account of any Taxes of, or imposed by, the
United States, to any Lender or the Agent (as the case may be) which is not
entitled on the date on which it signed this Agreement (or, in the case of an
assignee of a Lender, on the date on which the assignment to it became
effective), to submit Form 1001 or Form 4224 or a certification that it is a
corporation or other entity organized in or under the laws of the United States
or a state thereof, so as to establish a complete exemption from such Taxes with
respect to all payments hereunder and under the A Notes. If as a result of an
erroneous certification made by a Lender or the Agent the Borrower or such
Borrowing Subsidiary makes a payment to it without deduction for United States
withholding taxes, but would have made such a deduction had such certification
not been erroneous and the Borrower or such Borrowing Subsidiary subsequently is
required to account, and does account, to the United States tax authorities for
any amount which should have been deducted, such Lender or the Agent (as the
case may be) shall pay to the Borrower or such Borrowing Subsidiary an amount
sufficient to reimburse the Borrower or such Borrowing Subsidiary for such
amount.
(g) At the request of a Borrower or a Borrowing Subsidiary, any
Lender claiming any additional amounts payable pursuant to this Section 2.13
shall use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts which may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender. The Borrower or such Borrowing Subsidiary shall reimburse such
Lender for the Borrower's or such Borrowing Subsidiary's equitable share of such
Lender's reasonable expenses incurred in connection with such change or in
considering such a change.
(h) Without prejudice to the survival of any other agreement of the
Borrower and its Borrowing Subsidiaries hereunder, the agreements and
obligations of the Borrower and its Borrowing Subsidiaries contained in this
Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the A Notes, provided, however, that the Borrower or such
Borrowing Subsidiary has received timely notice of the assertion of any Taxes or
Other Taxes in order for it to contest such Taxes or Other Taxes to the extent
permitted by law.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the A Advances (whether for principal,
interest, fees or otherwise) made by it (other than pursuant to Section 2.08,
2.11 or 2.13) in excess of its ratable share of payments on account of the A
Advances obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the A Advances made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them, provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and each such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each of the Borrower and any Borrowing Subsidiary agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower or such Borrowing
Subsidiary, as the case may be, in the amount of such participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances. The obligation
of each Lender to make its initial Advance is subject to the condition precedent
that the Agent shall have received, on or before the date of such Advance, the
following, each dated such date, in form and substance satisfactory to each
Lender and (except for the Notes) in sufficient copies for each Lender:
(a) The A Note and, if applicable, the B Note payable to the order of
such Lender.
(b) Certified copies of the resolutions of the Board of Directors of
the Borrower approving this Agreement and the Notes and each Guaranty, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes.
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(d) A certificate of a duly authorized officer of the Borrower
certifying that the representations and warranties contained in Section
4.01 are correct on and as of such date (before and after giving effect to
any Borrowing on such date and the application of the proceeds therefrom),
as though made on and as of such date, and that no event has occurred and
is continuing (or would result from any such Borrowing or application of
the proceeds thereof) which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
(e) A favorable opinion of the General Counsel or an Associate
General Counsel of the Borrower, substantially in the form of Exhibit D
hereto.
(f) A favorable opinion of Shearman & Sterling, counsel for the
Agent, substantially in the form of Exhibit E hereto.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial A Borrowing) shall be subject to the further
conditions precedent that on the date of such A Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by the Borrower or any Borrowing Subsidiary of the
proceeds of such A Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such A Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01 are
correct on and as of the date of such A Borrowing, before and after giving
effect to such A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of Default
but for the requirement that notice be given or time elapse or both;
provided, however, that, on the occasion of an A Borrowing which would not
increase the aggregate outstanding amount of A Advances owing to each Lender
over the aggregate outstanding amount of A Advances owing to such Lender
immediately prior to making such A Borrowing, the statements set forth in
subsections (i) and (ii) above shall be modified as follows:
(i) In subsection (i) the phrase "(excluding those contained in the
last sentence of subsection (e) and in subsection (f) thereof)" shall be
inserted immediately after "Section 4.01"; and
(ii) In subsection (ii) the words "or would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both" shall be omitted;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request, evidencing the
accuracy of the representations and warranties and compliance with other
conditions of lending.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) the Agent shall
have received the written confirmatory Notice of B Borrowing with respect
thereto, (ii) on or before the date of such B Borrowing, but prior to such B
Borrowing, the Agent shall have received a B Note payable to the order of such
Lender for each of the one or more B Advances to be made by such Lender as part
of such B Borrowing, each in a principal amount equal to the principal amount of
the B Advance to be evidenced thereby and otherwise on such terms as were agreed
to for such B Advance in accordance with Section 2.03, and (iii) on the date of
such B Borrowing the following statements shall be true (and each of the giving
of the applicable Notice of B Borrowing and the acceptance by the Borrower or
any Borrowing Subsidiary of the proceeds of such B Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such B Borrowing
such statements are true):
(a) The representations and warranties contained in Section 4.01 are
correct on and as of the date of such B Borrowing, before and after giving
effect to such B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both, and
(c) The information concerning the Borrower that has been provided in
writing to the Agent and each Lender by the Borrower in connection
herewith as required by the provisions of this Agreement did not include
an untrue statement of a material fact or omit to state any material fact
or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading;
provided that with regard to any information delivered to a Lender
pursuant to Section 5.01(e)(vii), the representation and warranty in this
Section 3.03(c) shall apply only to such information that is specifically
identified to the Borrower at the time the request is made as information
(i) that may be delivered to a purchaser of a B Note, or (ii) that is
otherwise requested to be subject to this Section 3.03(c).
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the initial Borrowing
specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes.
(d) This Agreement is, and each of the Notes when executed and
delivered hereunder will be, the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as the same may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally, or by general principles of equity.
(e) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 1993 and the related
consolidated statements of income, cash flow and retained earnings of the
Borrower and its Consolidated Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Arthur Andersen & Co., independent public
accountants, copies of which have been furnished to each Bank, fairly
present the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as at such date and the consolidated results of
the operations of the Borrower and its Consolidated Subsidiaries for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied (except for mandated changes in
accounting disclosed in such financial statements). Except as disclosed to
each of the Lenders in writing prior to the date hereof, since December
31, 1993 there has been no Material Adverse Change.
(f) There is no pending or (to the knowledge of the Borrower)
threatened action or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator that (i) is reasonably
likely to have a Material Adverse Effect, other than as disclosed on
Schedule 4.01(f) (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note or
Guaranty, and there has been no change in the status, or financial effect
on the Borrower or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 4.01(f) which is reasonably likely to have
a Material Adverse Effect.
(g) None of the Borrower or any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any Advance
will be used in such manner as to cause any Lender to be in violation of
such Regulation U.
(h) The Borrower and each Subsidiary are in compliance in all
material respects with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, non-compliance with
which would have a Material Adverse Effect.
(i) In the ordinary course of its business, the Borrower conducts
reviews (which reviews are in varying stages of implementation) of the
effect of Environmental Laws on the business, operations and properties of
the Borrower and its Subsidiaries, in the course of which it identifies
and evaluates associated liabilities and costs. On the basis of these
reviews, the Borrower has reasonably concluded that Environmental Laws are
unlikely to have a Material Adverse Effect.
(j) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that is reasonably likely to result in the
imposition of a lien in excess of $25,000,000 on the assets of the
Borrower and/or any of its ERISA Affiliates in favor of the PBGC or the
Plan or in a requirement that the Borrower or any of its ERISA Affiliates
provide security to the Plan in an amount exceeding $25,000,000.
(k) The most recently filed Schedule B (Actuarial Information) annual
report (Form 5500 Series) for each Plan was complete and accurate and
fairly presented the funding status of such Plan as of the date of such
Schedule B, and since the date of such Schedule B, there has been no
change in such funding status which is reasonably likely to have a
Material Adverse Effect.
(l) Neither the Borrower nor any of its ERISA Affiliates has
incurred, or is reasonably expected to incur, any Withdrawal Liability to
any Multiemployer Plan which is reasonably likely to have a Material
Adverse Effect.
(m) Neither the Borrower nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, which in either case would be reasonably likely to have
a Material Adverse Effect, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning
of Title IV of ERISA, which in either case would be reasonably likely to
have a Material Adverse Effect.
(n) Except as set forth in the financial statements described in
Section 4.01(e) or delivered pursuant to Section 5.01(e), the Borrower and
its Subsidiaries have no material liability with respect to "expected
postretirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(o) The Borrower and each Subsidiary have filed all tax returns
(Federal, state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties other than those not
yet delinquent and except for those contested in good faith, or provided
adequate reserves for payment thereof.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will,
unless the Required Lenders shall otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each Significant Subsidiary to preserve and maintain, its
corporate existence except as permitted under Section 5.02(c); provided,
however, that the Borrower or any Significant Subsidiary shall not be
required to preserve the corporate existence of any Significant Subsidiary
if the Board of Directors of the Borrower shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Borrower or such Significant Subsidiary, as the case may be, and
that the liquidation thereof is not disadvantageous in any material
respect to the Lenders.
(b) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders, where any failure to comply would have a
Material Adverse Effect, such compliance to include, without limitation,
paying before the same become delinquent all material taxes, assessments
and governmental charges imposed upon it or upon its property except to
the extent contested in good faith.
(c) Maintenance of Properties, Etc. Maintain and preserve, and cause
each Significant Subsidiary to maintain and preserve, all of its
properties which are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except where
the failure to do so would not be reasonably likely to have a Material
Adverse Effect.
(d) Maintenance of Insurance. Maintain, and cause each Significant
Subsidiary to maintain, insurance with responsible and reputable insurance
companies or associations (including affiliated companies) for such
amounts, covering such risks and with such deductibles as is usually
carried by companies of comparable size engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower
or such Subsidiary operates, or maintain a sound self-insurance program
for such risks as may be prudently self-insured.
(e) Reporting Requirements. Furnish to each Lender:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and related
consolidated statements of income and cash flow for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, prepared in accordance with generally accepted
accounting principles applicable to interim statements and certified
by the Treasurer or chief financial officer of the Borrower;
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the
annual report for such year for the Borrower and its Consolidated
Subsidiaries, containing consolidated financial statements for such
year certified without exception as to scope by Arthur Andersen & Co.
or other independent public accountants acceptable to the Required
Lenders;
(iii)concurrently with the financial statements delivered
pursuant to clause (ii) above, a certificate of the Treasurer,
principal financial officer or the principal accounting officer of
the Borrower, and concurrently with the financial statements
delivered pursuant to clause (i) above, a certificate of the
Treasurer or controller of the Borrower, stating in each case that a
review of the activities of the Borrower and its Consolidated
Subsidiaries during the preceding quarter or fiscal year, as the case
may be, has been made under his supervision to determine whether the
Borrower has fulfilled all of its respective obligations under this
Agreement and the Notes, and also stating that, to the best of his
knowledge, (x) neither an Event of Default nor an event which, with
the giving of notice or the lapse of time or both, would constitute
an Event of Default has occurred, or (y) if any such Event of Default
or event exists, specifying such Event of Default or event, the
nature and status thereof, and the action the Borrower is taking or
proposes to take with respect thereto;
(iv) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each event which,
with the giving of notice or lapse of time, or both, would constitute
an Event of Default, continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting
forth details of such Event of Default or event and the action which
the Borrower has taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally,
and copies of all publicly available reports and registration
statements except registration statements on Form S-8 which the
Borrower or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(vi) promptly after the filing or receiving thereof each notice
that the Borrower or any Subsidiary receives from the PBGC regarding
the Insufficiency of any Plan, and, to any Lender requesting same,
copies of each Form 5500 annual return/report (including Schedule B
thereto) filed with respect to each Plan under ERISA with the
Internal Revenue Service;
(vii)such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request; and
(viii)promptly after any corporation shall become a Principal
Domestic Subsidiary, written notice thereof, including the name of
such corporation, the jurisdiction of its incorporation and the
nature of its business.
SECTION 5.02. Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Principal Domestic Subsidiaries to create or suffer to exist, any Lien on
any Restricted Property, whether now owned or hereafter acquired, without
making effective provision (and the Borrower covenants and agrees that it
will make or cause to be made effective provision) whereby the Notes shall
be directly secured by such Lien equally and ratably with (or prior to)
all other indebtedness secured by such Lien as long as such other
indebtedness shall be so secured; provided, however, that there shall be
excluded from the foregoing restrictions:
(i) Liens securing Debt not exceeding $10,000,000 which are
existing on the date hereof on Restricted Property; and, if any
property now owned or leased by Borrower or by a present Principal
Domestic Subsidiary at any time hereafter becomes a Principal
Domestic Manufacturing Property, any Liens existing on the date
hereof on such property securing the Debt now secured or evidenced
thereby;
(ii) Liens on Restricted Property of a Principal Domestic
Subsidiary as security for Debt of such Subsidiary to the Borrower or
to another Principal Domestic Subsidiary;
(iii)in the case of any corporation which becomes a Principal
Domestic Subsidiary after the date of this Agreement, Liens on
Restricted Property of such Principal Domestic Subsidiary which are
in existence at the time it becomes a Principal Domestic Subsidiary
and which were not incurred in contemplation of its becoming a
Principal Domestic Subsidiary;
(iv) any Lien existing prior to the time of acquisition of any
Principal Domestic Manufacturing Property acquired by the Borrower or
a Principal Domestic Subsidiary after the date of this Agreement
through purchase, merger, consolidation or otherwise;
(v) any Lien on any Principal Domestic Manufacturing Property
(other than a Major Domestic Manufacturing Property) acquired or
constructed by the Borrower or a Principal Domestic Subsidiary after
the date of this Agreement, which is placed on such Property at the
time of or within 120 days after the acquisition thereof or prior to,
at the time of or within 120 days after completion of construction
thereof to secure all or a portion of the price of such acquisition
or construction or funds borrowed to pay all or a portion of the
price of such acquisition or construction;
(vi) extensions, renewals or replacements of any Lien referred
to in clause (i), (iii), (iv) or (v) of this subsection (a) to the
extent that the principal amount of the Debt secured or evidenced
thereby is not increased, provided that the Lien is not extended to
any other Restricted Property unless the aggregate value of
Restricted Property encumbered by such Lien is not materially greater
than the value (as determined at the time of such extension, renewal
or replacement) of the Restricted Property originally encumbered by
the Lien being extended, renewed or replaced;
(vii)Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's, vendors' and landlords' liens, and Liens
arising out of judgments or awards against the Borrower or any
Principal Domestic Subsidiary which are (x) immaterial or (y) with
respect to which the Borrower or such Subsidiary at the time shall
currently be prosecuting an appeal or proceedings for review and with
respect to which it shall have secured a stay of execution pending
such appeal or proceedings for review;
(viii)minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, and zoning or other restrictions as to the use of any
Principal Domestic Manufacturing Property, which exceptions,
encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Borrower, in the aggregate materially
detract from the value of such Principal Domestic Manufacturing
Property or materially impair its use in the operation of the
business of the Borrower and its Principal Domestic Subsidiaries; and
(ix) any Lien on Restricted Property not referred to in clauses
(i) through (viii) of this subsection (a) if, at the time such Lien
is created, incurred, assumed or suffered to be created, incurred or
assumed, and after giving effect thereto and to the Debt secured or
evidenced thereby, the sum of (A) the aggregate amount of all
outstanding Debt of the Borrower and its Principal Domestic
Subsidiaries secured or evidenced by Liens on Restricted Property
which are not referred to in clauses (i) through (viii) of this
subsection (a) and which do not equally and ratably secure the Notes
plus (B) the aggregate amount of all outstanding Sale and Leaseback
Debt of the Borrower and its Principal Domestic Subsidiaries, shall
not exceed 15% of Consolidated Net Tangible Assets.
If at any time the Borrower or any Principal Domestic Subsidiary shall
create, incur or assume or suffer to be created, incurred or assumed any
Lien on Restricted Property by which the Notes are required to be secured
pursuant to the requirements of this subsection (a), the Borrower will
promptly deliver to each Lender an opinion, in form and substance
reasonably satisfactory to the Required Lenders, of the General Counsel of
the Borrower (so long as the General Counsel is able to render an opinion
as to the relevant local law) or other counsel reasonably satisfactory to
the Required Lenders, to the effect that the Notes have been secured in
accordance with such requirements.
(b) Sale and Leaseback Transactions. The Borrower will not, and
will not permit any Principal Domestic Subsidiary to, enter into any Sale
and Leaseback Transaction unless either:
(i) immediately after giving effect to such Sale and Leaseback
Transaction, the sum of (A) the aggregate amount of all outstanding
Sale and Leaseback Debt of the Borrower and its Principal Domestic
Subsidiaries and (B) the aggregate amount of all outstanding Debt of
the Borrower and its Principal Domestic Subsidiaries secured or
evidenced by Liens on Restricted Property which are not referred to
in clauses (i) through (viii) of Section 5.02(a) and which do not
equally and ratably secure the Notes, shall not exceed 15% of
Consolidated Net Tangible Assets; or
(ii) within 90 days after the effective date of such Sale and
Leaseback Transaction, the Borrower shall apply or cause to be
applied an amount equal to the net proceeds of the sale of the
property leased pursuant to such Sale and Leaseback Transaction to
the prepayment or other retirement (other than any mandatory
prepayment or retirement) of the A Notes in accordance with the
provisions of Section 2.10 hereof, and/or Senior Funded Debt of the
Borrower or any of its Principal Domestic Subsidiaries which is then
subject to optional prepayment or other retirement, and shall deliver
to the holders of the A Notes a certificate executed by the principal
financial officer, treasurer or the chief executive officer of the
Borrower specifying the Debt so prepaid or retired; or
(iii)within 90 days after the effective date of such Sale and
Leaseback Transaction, the Borrower shall deliver to the holders of
the A Notes a certificate executed by the principal financial
officer, treasurer or the chief executive officer of the Borrower
stating that an amount equal to the net proceeds of the sale of the
property leased pursuant to such Sale and Leaseback Transaction has
been applied, or is in good faith being retained for application
within a reasonable time after the date of such Sale and Leaseback
Transaction (and the Borrower covenants and agrees that such proceeds
will be so applied), to the payment of the cost of the purchase,
construction or improvement of one or more Principal Domestic
Manufacturing Properties.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the Borrower may
merge or consolidate with or into, or transfer assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge
or consolidate with or into or transfer assets to the Borrower, and (iii)
the Borrower may merge with or transfer assets to, and any Subsidiary of
the Borrower may merge or consolidate with or into or transfer assets to,
any other Person, provided that (A) in each case, immediately after giving
effect to such proposed transaction, no Event of Default or event which,
with the giving of notice or lapse of time, or both, would constitute an
Event of Default would exist, (B) in the case of any such merger to which
the Borrower is a party, the Borrower is the surviving corporation and (C)
in the case of any such merger or consolidation of a Borrowing Subsidiary
of the Borrower with or into any other Person, the Borrower shall remain
the guarantor of such Subsidiary's obligations hereunder.
(d) Debt. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Debt if (after giving
effect to the applications of the proceeds of any Debt) the ratio of (x)
the Operating Cash Flow of the Borrower and its Subsidiaries on a
consolidated basis for the most recent four consecutive calendar quarters
then ended to (y) the aggregate amount of Debt of the Borrower and its
Subsidiaries on a consolidated basis is less than 0.25 to 1.
(e) Use of Proceeds. Use, or permit any of its Subsidiaries to use,
any proceeds of any Advance for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), or to extend credit to others
for such purpose, if, following application of the proceeds of such
Advance, more than 25% of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis)
which are subject to the restrictions of Section 5.02(a) or (b) or subject
to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender, relating to Debt
and within the scope of Section 6.01(d) (without giving effect to any
limitation in principal amount contained therein) will be margin stock (as
defined in such Regulation U).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower or any Borrowing Subsidiary shall fail to pay when
due any principal of any Note or to pay, within five days after the date
when due, the interest on any Note, any fees or any other amount payable
hereunder or under any Guaranty; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement or
any Guaranty shall prove to have been incorrect in any material respect
when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, or (ii) any other term,
covenant or agreement contained in this Agreement (other than those
referred to in clauses (a) and (b) of this Section 6.01) on its part to be
performed or observed if the failure to perform or observe such other
term, covenant or agreement referred to in this clause (ii) shall remain
unremedied for 30 days after written notice thereof shall have been given
to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Significant Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $50,000,000 in the aggregate
(but excluding Debt evidenced by the Notes) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is (i) to accelerate
the maturity of such Debt or (ii) if the long-term senior debt of the
Borrower is not then rated either at or above BBB by S&P or at or above
Baa2 by Moody's, to permit the acceleration of the maturity of such Debt;
or any such Debt shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Significant
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed and unstayed for a period of 60 days, or any of
the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Significant Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 (calculated after deducting from the sum so payable each
amount thereof which will be paid by any insurer that is not an Affiliate
of the Borrower to the extent such insurer has confirmed in writing its
obligation to pay such amount with respect to such judgment or order)
shall be rendered against the Borrower or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
20 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(g) The Borrower or any of its ERISA Affiliates shall have incurred
or, in the reasonable opinion of the Required Lenders, shall be reasonably
likely to incur liability in excess of $50,000,000 in the aggregate as a
result of one or more of the following events which shall have occurred:
(i) any ERISA Event; (ii) the partial or complete withdrawal of the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or
(h) Any Guaranty or any provision of any Guaranty after delivery
thereof pursuant to Section 8.06(b) shall for any reason cease to be valid
and binding on the Borrower, or the Borrower shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower or any of its
Subsidiaries which borrows hereunder under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower. The Lenders
giving any notice hereunder shall give copies thereof to the Agent, but failure
to do so shall not impair the effect of such notice.
In the event the Borrower assigns to one or more Subsidiaries the
right to borrow under this Agreement (as provided in Section 8.06), each
reference in this Article VI to the Borrower shall be a reference to each such
Subsidiary as well as to the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. (a) Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or any Borrowing
Subsidiary or to inspect the property (including the books and records) of the
Borrower or any Borrowing Subsidiary; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
(b) the Co-Agent, as such, shall have no duties or obligations whatsoever
with respect to this Agreement, the Notes or any matter related thereto.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank, N.A.
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank, N.A.
in its individual capacity. Citibank, N.A. and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank, N.A. were not the Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the A Notes then held by each of such Lenders
(or if no A Notes are at the time outstanding or if any A Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, which successor Agent, so long as no Event of Default has
occurred and is continuing, shall be approved by the Borrower, which approval
shall not be unreasonably withheld or delayed. If no successor Agent shall have
been so appointed by the Required Lenders in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000, which
successor Agent, so long as no Event of Default has occurred and is continuing,
shall be approved by the Borrower, which approval shall not be unreasonably
withheld or delayed. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, 3.02 or 3.03 (if and to
the extent that the Borrowing for which such condition or conditions are waived
would result in an increase in the aggregate amount of A Advances over the
aggregate amount of A Advances outstanding immediately prior to such Borrowing),
(b) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A Notes
or any fees or other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder or (f) amend Section 8.06(b)(ii) or this Section 8.01; provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note. No amendment or waiver of any provision of a B Note, nor any consent to
any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the holder of such B Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at 300 Park Avenue, New
York, New York 10022, Attention: Treasurer; if to any Borrowing Subsidiary, c/o
the Borrower at its above address; if to any Bank, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; and if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at 1 Court Square, 7th Floor, Long Island City, New York 11120,
Attention: John Makrinos, with a copy to 399 Park Avenue, New York, New York
10043, Attention: Jay Schiff; or, as to the Borrower or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and communications to
the Agent pursuant to Article II shall not be effective until received by the
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses, Etc. (a) The Borrower agrees to pay on
demand all out-of-pocket costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
not more than one counsel for the Agent, with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Borrower undertakes and agrees to indemnify and hold harmless
the Agent, Citicorp Securities, Inc. and J.P. Morgan Securities, Inc. (each, an
"Arranger") and each Lender against any and all claims, damages, liabilities and
expenses (including but not limited to fees and disbursements of counsel) which
may be incurred by or asserted against the Agent, such Arranger or such Lender
(as the case may be), except where the direct result of the Agent's, such
Arranger's or such Lender's own gross negligence or willful misconduct, in
connection with or arising out of any investigation, litigation, or proceeding
(whether or not the Agent, any Arranger or any of the Lenders is a party
thereto) relating to or arising out of this Agreement, the Notes or any actual
or proposed use of proceeds of Advances hereunder, including but not limited to
any acquisition or proposed acquisition by the Borrower or any Subsidiary of all
or any portion of the stock or substantially all of the assets of any Person.
(c) If any payment of principal of any Eurodollar Rate Advance is
made other than on the last day of the Interest Period for such A Advance, as a
result of a prepayment pursuant to Section 2.10, 2.11(c) or 5.02(b)(ii) or
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall upon demand by any Lender (with a copy of such
demand to the Agent) pay to the Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment, including, without
limitation, any loss (excluding in any event loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such A Advance.
(d) Without prejudice to the survival of any other agreement or
obligation of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.13 and 8.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and any Note held by such Lender, whether or not (in the case of
obligations other than principal and interest) such Lender shall have made any
demand under this Agreement or such Note and although such obligations (other
than principal) may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect; Assignment by Borrower. (a) This
Agreement shall become effective when it shall have been executed by the
Borrower and the Agent and when the Agent shall have been notified by each Bank
that such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and (subject to Section
8.07) their respective successors and assigns, except that the Borrower shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
(b) Notwithstanding subsection (a) above, the Borrower shall have the
right to assign its rights to borrow hereunder (in whole or in part) to any
Subsidiary (a "Borrowing Subsidiary"), provided that (i) such Subsidiary assumes
the obligations of the Borrower hereunder relating to the rights so assigned by
executing and delivering an assignment and assumption agreement reasonably
satisfactory to the Agent and the Required Lenders, covering notices, places of
payment and other mechanical details, (ii) the Borrower guarantees such
Subsidiary's obligations thereunder and under the Notes issued in connection
with such assignment and assumption by executing and delivering a Guaranty
substantially in the form of Exhibit F hereto (a "Guaranty") and (iii) the
Borrower and such Subsidiary furnish the Agent with such other documents and
legal opinions as the Agent or the Required Lenders may reasonably request
relating to the existence of such Subsidiary, its corporate power and authority
to request Advances hereunder, and the authority of the Borrower to execute and
deliver such Guaranty and the legality, validity, binding effect and
enforceability of such assignment, assumption and Guaranty. No such assignment
and assumption shall substitute a Borrowing Subsidiary for the Borrower or
relieve the Borrower named herein (i.e., Colgate-Palmolive Company) of its
obligations with respect to the covenants, representations, warranties, Events
of Default and other terms and conditions of this Agreement, all of which shall
continue to apply to such Borrower and its Subsidiaries.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
assign to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the A Advances owing to it and the A Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any B Advances or B Notes), (ii) each assignee shall be
subject to the prior written approval and acceptance (not to be unreasonably
withheld or delayed) of the Agent and the Borrower (unless the assignee is an
Affiliate of the assignor), and (iii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance consented to by the Borrower, together
with any A Note or Notes subject to such assignment and a processing and
recordation fee of $3,000, and give notice of such assignment to each other
Lender. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any Borrowing Subsidiary or the performance or observance by the
Borrower or any Borrowing Subsidiary of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and/or
Section 5.01(e)(i) and (ii) and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the A Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, with regard to
the names, addresses and Commitments of each Lender, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection and copying by any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any A Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and signed by the Borrower and is in substantially the form of Exhibit
C hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
other Lenders. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrendered A Note or Notes a new A Note to the order of such assignee
in an amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment hereunder,
a new A Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new A Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other entities any
B Note or Notes held by it. Each Lender may assign to any Affiliate of such
Lender, without the consent of the Borrower, its interest in this Agreement, the
A Advances owing to it and the A Note held by it, but such assignment shall not
relieve such assigning Lender of its obligations hereunder including, without
limitation, its Commitment.
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) such Lender shall not grant to any such participant the right
to participate in the Lender's actions on amendments, waivers or consents
permitted under this Agreement, except to the extent that such actions would
change the amount of the Commitment, the principal amount, payment dates or
maturity of any Notes or Advances, the interest rate, or the method of computing
the interest rate thereon, or any fees payable hereunder.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender.
(h) No assignee of a Lender shall be entitled to the benefits of
Sections 2.11 and 2.13 in relation to circumstances applicable to such assignee
immediately following the assignment to it which at such time (if a payment were
then due to the assignee on its behalf from the Borrower) would give rise to any
greater financial burden on the Borrower under Sections 2.11 and 2.13 than those
which it would have been under in the absence of such assignment.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time, without the consent of the Borrower, create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the Notes held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 8.08. Change of Control. (a) Notwithstanding any other
provision of this agreement, the Required Lenders may, upon and after the
occurrence of a Change in Control, by notice to the Borrower (with a copy to the
Agent) (i) immediately suspend or terminate the obligations of the Lenders to
make Advances hereunder and/or (ii) require the Borrower to repay all or any
portion of the Advances on the date or dates specified in the notice which shall
not be less than 30 days after the giving of the notice.
(b) For purposes of this Section "Change in Control" shall mean the
happening of any of the following events:
(i) An acquisition, directly or indirectly, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 30% or more of either (A) the then outstanding shares
of common stock of the Borrower or (B) the combined voting power of the
then outstanding voting securities of the Borrower entitled to vote
generally in the election of directors; excluding, however (1) any
acquisition by the Borrower, or (2) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Borrower or
any corporation controlled by the Borrower; or
(ii) A change in composition of the Board of Directors of the
Borrower (the "Board") such that the individuals who, as of the date
hereof, constitute the Board (such Board shall be hereinafter referred to
as the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, for purposes of this Section
8.08, that any individual who becomes a member of the Board subsequent to
the date hereof, whose election, or nomination for election by the
Borrower's stockholders, was approved by a vote of at least a majority of
those individuals who are members of the Board and who were also members
of the Incumbent Board (or deemed to be such pursuant to this proviso)
shall be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a- 11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board shall not be so considered as a member of the
Incumbent Board.
SECTION 8.09. Mitigation of Adverse Circumstances. If circumstances
arise which would or would upon the giving of notice result in a payment or an
increase in the amount of any payment to be made to a Lender by reason of
Section 2.02(c), 2.11 or 2.12, or which would result in a Lender being unable to
make Eurodollar Rate Advances by reason of Section 2.02(b), then, without in any
way limiting, reducing or otherwise qualifying the obligations of the Borrower
under any of the such Sections, such Lender shall promptly, upon becoming aware
of the same, notify the Borrower thereof and, in consultation with the Borrower,
take such reasonable steps as may be open to it to mitigate the effects of such
circumstances, including the transfer of its Applicable Lending Office to
another jurisdiction; provided that such Lender shall be under no obligation to
make any such transfer if in the bona fide opinion of such Lender, such transfer
would or would likely have an adverse effect upon its business, operations or
financial condition.
SECTION 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12 Jurisdiction, Etc. (a) Each of the parties hereto
(including each Borrowing Subsidiary) hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, the Notes, or any
Guaranty, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement, the Notes or any Guaranty in
the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any such New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Borrowing Subsidiaries and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement, the
Notes or any Guaranty or the actions of the Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
COLGATE-PALMOLIVE COMPANY
Brian J. Heidtke
By ___________________________________________
Vice President and Corporate Treasurer
CITIBANK, N.A., as Agent
Michel R.R. Pendill
By ___________________________________________
Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
Mathias Blumschein
By ___________________________________________
Title: Associate
Banks
Commitment
$490,000,000 CITIBANK, N.A.,
Michel R.R. Pendill
By ___________________________________________
Vice President
$280,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
Mathias Blumschein
By ___________________________________________
Title: Associate
$770,000,000 Total of the Commitments
SCHEDULE I
Colgate-Palmolive Company
$770,000,000 CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of
Bank Domestic Lending Office Eurodollar Lending Office
Citibank, N.A. 399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Morgan Guaranty 500 Stanton Christiana Road 500 Stanton Christiana Road
Trust Company of Newark, Del. 19713 Newark, Del. 19713
New York
Schedule 4.01(f)
None.
EXHIBIT A-1 - FORM OF
A NOTE
U.S.$ Dated: , 19
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Five Year Credit Agreement referred to below) the principal sum of ________
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of each Base Rate Advance (as defined in the Five Year Credit
Agreement referred to below) on the Termination Date (as defined in the Five
Year Credit Agreement referred to below) and the principal amount of each other
A Advance (as defined in the Five Year Credit Agreement referred to below) owing
to the Lender by the Borrower pursuant to the Five Year Credit Agreement dated
as of January 8, 1995 among the Borrower, the Lender and certain other lenders
parties thereto, Citibank, N.A., as Agent for the Lender and such other lenders,
and Morgan Guaranty Trust Company of New York, as Co-Agent (as amended or
modified from time to time, the "Five Year Credit Agreement"; the terms defined
therein being used herein as therein defined) on the last day of the Interest
Period for such Advance.
The Borrower promises to pay interest on the unpaid principal amount
of each A Advance from the date of such A Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Five Year Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, as Agent, at its offices at 1 Court Square, Long
Island City, New York 11120, in immediately available funds. Each A Advance
owing to the Lender by the Borrower pursuant to the Five Year Credit Agreement,
the date on which it is due, the interest rate thereon and all prepayments made
on account of principal thereof shall be recorded by the Lender on its books,
and for each A Advance outstanding at the time of any transfer hereof, the same
information shall be endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the A Notes referred to in, and is
entitled to the benefits of, the Five Year Credit Agreement. The Five Year
Credit Agreement, among other things, (i) provides for the making of A Advances
by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such A Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
COLGATE-PALMOLIVE COMPANY
By __________________________________________
Title:
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[Note:Upon request by a Lender, the Borrower will issue separate A Notes payable
to one or more offices of the Lender, for Base Rate Advances and
Eurodollar Rate Advances. This form will be modified to refer to the
specific type of A Advance and to the appropriate maturity of such type of
A Advance.]
SCHEDULE TO PROMISSORY NOTE DATED JANUARY 9, 1995
OF COLGATE-PALMOLIVE COMPANY
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of
Date Principal Unpaid
Amount of Principal Paid Principal Notation
Date Advance Due Rate or Prepaid Balance Made By
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EXHIBIT A-2 - FORM OF
B NOTE
U.S.$ Dated: , 199
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Five Year Credit Agreement referred to below), on ________, 19__, the
principal amount of ________ Dollars (U.S.$________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate:_____% per annum (calculated on the basis of a year of 360
days for the actual number of days elapsed).
Interest Payment Date or Dates: _______________________
Both principal and interest are payable in lawful money of the United
States of America to the Lender at its office at , in immediately available
funds.
This Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the Five Year Credit Agreement dated as of January
8, 1995 (as amended or otherwise modified from time to time, the "Five Year
Credit Agreement") among the Borrower, the Lender and certain other lenders
party thereto Citibank, N.A., as Agent for the Lender and such other parties,
and Morgan Guaranty Trust Company of New York, as Co-Agent. The Five Year Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
COLGATE-PALMOLIVE COMPANY
By __________________________________________
Title:
EXHIBIT B-1 - FORM OF
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Five Year Credit Agreement
referred to below
1 Court Square, 7th Floor
Long Island City, NY 11120 [Date]
Attention: John Makrinos
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to the Five Year
Credit Agreement, dated as of January 8, 1995 (as amended or otherwise modified
through the date hereof, the "Five Year Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto Citibank, N.A., as Agent for said Lenders, and Morgan
Guaranty Trust Company of New York, as Co-Agent, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Five Year Credit Agreement that the
undersigned hereby requests an A Borrowing under the Five Year Credit Agreement,
and in that connection sets forth below the information relating to such A
Borrowing (the "Proposed A Borrowing") as required by Section 2.02(a) of the
Five Year Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is , 199 .
(ii) The Type of A Advances comprising the Proposed A Borrowing
is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is $ .
(iv) The Interest Period for each A Advance made as part of the
Proposed A Borrowing is ________ month[s].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Five Year Credit Agreement are correct, before and after giving effect
to the Proposed A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed A Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
[As an alternative, the following three representations may be substituted if
the proviso in Section 3.02 is applicable:
(A) the Proposed A Borrowing will not increase the aggregate
outstanding amount of A Advances owing to each Lender over the aggregate
outstanding amount of A Advances owing to such Lender immediately prior to
such A Borrowing;
(B) the representations and warranties contained in Section 4.01
(excluding those contained in the last sentence of subsection (e) and in
subsection (f) thereof, in each case as incorporated by reference) are
correct, before and after giving effect to the Proposed A Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; and
(C) no event has occurred and is continuing, or would result from
such Proposed A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default.]
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By __________________________________________
Title:
EXHIBIT B-2 - FORM OF
NOTICE OF B BORROWING
Citibank, N.A, as Agent
for the Lenders parties
to the Five Year Credit Agreement
referred to below
1 Court Square, 7th Floor
Long Islan City, NY 11120 [Date]
Attention: John Makrinos
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to the Five Year
Credit Agreement dated as of January 8, 1995 (as amended or otherwise modified
through the date hereof, the "Five Year Credit Agreement", the terms defined
therein being used herein as therein defined) among the undersigned, certain
Lenders party thereto, Citibank, N.A., as Agent for such Lenders, and Morgan
Guaranty Trust Company of New York, as Co-Agent, and hereby gives you notice
pursuant to Section 2.03 of the Five Year Credit Agreement that the undersigned
hereby requests a B Borrowing under the Five Year Credit Agreement, and in that
connection sets forth the terms on which such B Borrowing (the "Proposed B
Borrowing") is requested to be made:
(A) Date of Proposed B Borrowing _______________
(B) Aggregate Amount of Proposed B Borrowing _______________
(C) Interest Rate Basis _______________
(D) Maturity Date _______________
(E) Interest Payment Date(s) _______________
(F) _________________________________________ _______________
(G) _________________________________________ _______________
(H) _________________________________________ _______________
The undersigned hereby certifies that the following statements are
true on the date hereof and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Section 4.01 are
correct, before and after giving effect to the Proposed B Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both;
(c) The information concerning the undersigned that has been provided
in writing to the Agent or each Lender by the undersigned in connection
with the Five Year Credit Agreement as required by the terms of the Five
Year Credit Agreement did not include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading; provided that with regard to any
information delivered to a Lender pursuant to Section 5.01(e)(vii) of the
Five Year Credit Agreement, the representation and warranty in this
paragraph (c) shall apply only to such information that is specifically
identified to the undersigned at the time the request is made as
information (i) that may be delivered to a purchaser of a B Note, or (ii)
that is otherwise requested to be subject to this paragraph (c).
(d) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Five Year Credit Agreement
is within the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is to
be made available to it in accordance with Section 2.03(e) of the Five Year
Credit Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By: __________________________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of
January 8, 1995 (as amended or modified from time to time, the "Five Year Credit
Agreement") among COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Five Year Credit Agreement),
Citibank, N.A., as agent for the Lenders (the "Agent"), and Morgan Guaranty
Trust Company of New York, as co-agent. Terms defined in the Five Year Credit
Agreement are used herein with the same meaning.
_________ (the "Assignor") and _____________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Five Year Credit
Agreement as of the date hereof (other than in respect of B Advances and B
Notes) which represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Five Year Credit Agreement (other
than in respect of B Advances and B Notes), including, but not limited to, such
interest in the Assignor's Commitment, the A Advances owing to the Assignor, and
the A Note[s] held by the Assignor. After giving effect to such sale and
assignment, the Assignee's Commitment and the amount of the A Advances owing to
the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Five Year Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Five Year Credit Agreement or any other instrument
or document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under the Five Year Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the A Note[s] referred to
in paragraph 1 above and requests that the Borrower exchange such A Note[s] for
a new A Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new A Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and to the order of the Assignor in an amount equal to
the Commitment retained by the Assignor under the Five Year Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Five
Year Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 or delivered pursuant to Section 5.01(e) (in each case as
incorporated into the Five Year Credit Agreement by reference) thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (ii)
agrees that it will, independently and without reliance upon the Assignor, the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Five Year Credit Agreement; (iii) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Five Year Credit Agreement are required to be performed by
it as a Lender; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Five
Year Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
[and] (v) specifies as its Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof; [and (vi) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Five Year Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].*
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date of this Assignment and Acceptance
shall be the date of acceptance thereof by the Agent, unless otherwise specified
on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Five Year Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Five Year Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Five Year Credit
Agreement and the A Notes in respect of the interest assigned hereby (including,
but not limited to, all payments of principal, interest and commitment, facility
and utilization fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Five Year
Credit Agreement and the A Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
__________
* If the Assignee is organized under the laws of a jurisdiction outside the
United States.
Schedule 1
to
Assignment and Acceptance
Dated , 19
Section 1.
Percentage Interest: ______%
Section 2.
Assignee's Commitment: $______
Assignor's Retained Commitment: $______
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee:$______
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignor:$______
An A Note payable to the order of the Assignee
Dated: , 19
Principal amount:
An A Note payable to the order of the Assignor
Dated: , 19
Principal amount:
Section 3.
Effective Date*: , 19
[NAME OF ASSIGNOR]
By: _____________________________________________
Title:
_________
* This date should be no earlier than the date of acceptance by the Agent.
[NAME OF ASSIGNEE]
By:_______________________________________________
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ___ day
of _______________, 19__
CITIBANK, N.A., as Agent
By:_____________________
Title:
Accepted this ___ day
of _______________, 19__
COLGATE-PALMOLIVE COMPANY
By:_____________________
Title:
EXHIBIT D
January __, 1995
To each of the Lenders party to the Five Year Credit Agreement referred to below
and Citibank, N.A., as Agent
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary for
Colgate-Palmolive Company (hereinafter referred to as the "Borrower"), I am
familiar with the $770,000,000 Five Year Credit Agreement, dated as of January
8, 1995 among the Borrower, the Lenders parties thereto, Citibank, N.A. as Agent
for the Lenders thereto, and Morgan Guaranty Trust Company of New York, as
Co-Agent (the "Five Year Credit Agreement"). This opinion is being furnished to
you pursuant to Section 3.01(e) of the Five Year Credit Agreement. Terms used in
this opinion which are defined in the Five Year Credit Agreement are used herein
as so defined.
I or attorneys under my supervision in the Borrower's Legal
Department have examined such records, certificates, and other documents and
such questions of law as I have considered necessary or appropriate for purposes
of this opinion. In addition, I or attorneys under my supervision in the
Borrower's Legal Department have examined such records, certificates, and other
documents, relied on upon certificates of the officers of the Borrower and
performed such investigations as I have considered necessary or appropriate for
purposes of this opinion in respect of matters of fact. I believe that both you
and I are justified in relying upon such certificates. Based upon, and subject
to, the foregoing, it is my opinion that:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
2. The execution, delivery and performance by the Borrower of the
Five Year Credit Agreement, the Notes and the Guaranties are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or by-laws or
(ii) law or (to my knowledge after due inquiry) any contractual restriction
binding on or affecting the Borrower. The Five Year Credit Agreement and the A
Note have been duly executed and delivered on behalf of the Borrower.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Five Year Credit
Agreement, the Notes and the Guaranties.
4. The Five Year Credit Agreement is and the A Note will be, and each
of the Guaranties and B Notes when executed and delivered will be, upon the
receipt of due consideration therefor, the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms.
5. The Borrower has a procedure of reviewing its material litigation
on a quarterly basis and has imposed an ongoing obligation on its Subsidiaries
whereby they must advise me, or attorneys under my supervision, immediately of
any material litigation matter arising between reviews. Based on this review, to
my actual knowledge, there is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator which may have a Material Adverse Effect or which purports
to affect the legality, validity or enforceability of the Five Year Credit
Agreement, any Notes and any Guaranties; provided, however, that I express no
opinion with respect to certain Brazilian regulatory risks discussed with you.
I am licensed to practice law in the State of New York and do not
purport to be an expert on, or to express any opinion (other than to the extent
necessary to render the opinions set forth in paragraph (1) above, which opinion
in based on certificates of public officials) concerning any law other than the
law of the State of New York, the General Corporation Law of the State of
Delaware and the Federal law of the United States. The opinions expressed herein
are solely for your benefit and may not be relied upon in any manner or for any
purpose by any other persons.
The opinion set forth in paragraph (4) above is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally, and to the effect of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding equity or at law).
Very truly yours,
EXHIBIT E
OPINION OF COUNSEL TO THE AGENT
January __, 1995
To the Lenders party to the Five Year Credit Agreement referred to below and
Citibank, N.A., as Agent
Colgate-Palmolive Company
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A., as Agent, in connection
with the preparation, execution and delivery of the Five Year Credit Agreement
dated as of January 8, 1995 (the "Five Year Credit Agreement") among
Colgate-Palmolive Company (the "Borrower"), each of you, Citibank, N.A., as
Agent, and Morgan Guaranty Trust Company of New York, as Co-Agent. Terms defined
in the Five Year Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) A counterpart of the Five Year Credit Agreement, executed by each
of the parties thereto.
(2) The documents furnished by the Borrower pursuant to Section
3.01 of the Five Year Credit Agreement, including the opinion of Andrew
D. Hendry, General Counsel of the Borrower.
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing such
documents, and the conformity to the originals of all such documents submitted
to us as copies. We have also assumed that each of you has duly executed and
delivered, with all necessary power and authority (corporate and otherwise), the
Five Year Credit Agreement.
To the extent that our opinions expressed below involve conclusions
as to the matters set forth in paragraphs 1, 2 and 3 of the above-mentioned
opinion of counsel for the Borrower, we have assumed without independent
investigation the correctness of the matters set forth in such paragraphs, our
opinion being subject to the assumptions, qualifications and limitations set
forth in such opinion with respect thereto.
Based upon the foregoing and upon such other investigation as we have
deemed necessary, we are of the following opinion:
1. The Five Year Credit Agreement and each Note delivered on the
date hereof are the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective
terms.
2. The above-mentioned opinion of counsel for the Borrower, and the
other documents referred to in item (2) above, are substantially
responsive to the requirements of the Five Year Credit Agreement.
Our opinions above are subject to the following qualifications:
(a) Our opinion in paragraph 1 above is subject to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(b) Our opinion in paragraph 1 above is also subject to the effect of
any applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar law affecting creditors' rights generally.
(c) Our opinions expressed above are limited to the law of the State
of New York and the Federal law of the United States, and we do not
express any opinion herein concerning any other law. Without limiting the
generality of the foregoing, we express no opinion as to the effect of the
law of any jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Five Year Credit
Agreement or the Notes may be sought which limits the rates of interest
legally chargeable or collectible.
Very truly yours,
SHEARMAN & STERLING
LCJ:SLH
EXHIBIT F
FORM OF GUARANTY
GUARANTY, dated ________, 19__, made by COLGATE-PALMOLIVE COMPANY, a
corporation organized and existing under the laws of Delaware (the "Guarantor"),
in favor of Citibank, N.A., as agent (the "Agent") for each of the Lenders (the
"Lenders") parties to the Five Year Credit Agreement (as defined below).
PRELIMINARY STATEMENTS.
(1) The Agent, the Lenders, the Guarantor, and Morgan Guaranty Trust
Company of New York, as co-Agent have entered into a Five Year Credit Agreement
dated as of January 8, 1995 (said Agreement, as it may heretofore have been or
hereafter be amended or otherwise modified from time to time, being the "Five
Year Credit Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined). Pursuant to Section 8.06(b) of the
Five Year Credit Agreement and an Assignment and Assumption Agreement dated
_________, 19__ the Guarantor has assigned to ________________________________
___________, a corporation organized and existing under the laws of (the
"Assignee"), certain rights under the Five Year Credit Agreement, so that the
Assignee may borrow and receive Advances under the Five Year Credit Agreement.
The Assignee is a Subsidiary of the Guarantor and engages in business
transactions with the Guarantor, and the Guarantor represents that it will
derive substantial direct and indirect benefit from all Advances to the
Assignee.
(2) It is a condition precedent to the making of such assignment to
the Assignee that the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to accept such assignment and to make Advances to the
Assignee under the Five Year Credit Agreement, the Guarantor hereby agrees as
follows:
SECTION 1. Guaranty. The Guarantor hereby unconditionally guarantees
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of the Assignee now or hereafter existing under
the Five Year Credit Agreement and under the Notes evidencing Advances to the
Assignee (the "Notes"), whether for principal, interest, fees, expenses or
otherwise (such obligations being the "Obligations"), and agrees to pay any and
all expenses (including counsel fees and expenses) incurred by the Agent and the
Lenders in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts which constitute part of the Obligations and would be owed by the
Assignee to the Lenders under the Five Year Credit Agreement and the Notes but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Assignee.
SECTION 2. Guaranty Absolute. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Five Year
Credit Agreement and the Notes, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Lenders with respect thereto. The obligations of the Guarantor
under this Guaranty are independent of the Obligations, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the Assignee or
whether the Assignee is joined in any such action or actions. The liability of
the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Five Year Credit
Agreement, the Notes or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from the Five Year Credit Agreement
or the Notes, including, without limitation, any increase in the
Obligations resulting from the extension of additional credit to the
Assignee or any of its subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other disposition
of any collateral for all or any of the Obligations or any other assets of
the Assignee or any of its subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of the Assignee or any of its subsidiaries or its
status as a Subsidiary of the Guarantor; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Assignee or a guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by the Agent or any Lender upon the insolvency, bankruptcy
or reorganization of the Assignee or otherwise, all as though such payment had
not been made.
SECTION 3. Waiver. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the
Obligations, this Guaranty or any circumstance referred to in Section 2, and
waives any requirement that the Agent or any Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust
any right or take any action against the Assignee or any other person or entity
or any collateral.
SECTION 4. Subrogation. (a) The Guarantor will not exercise any
rights which it may acquire by way of subrogation under this Guaranty, by any
payment made hereunder or otherwise, until all the Obligations and all other
amounts payable under this Guaranty shall have been paid in full and the
Commitments shall have expired or terminated. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time prior to the later
of (x) the payment in full of the Obligations and all other amounts payable
under this Guaranty and (y) the expiration or termination of the Commitments,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for the benefit of, the Agent and the Lenders and shall
forthwith be paid to the Agent to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the Five Year
Credit Agreement or to be held by the Agent as collateral security for any
Obligations thereafter existing. If (i) the Guarantor shall make payment to the
Agent of all or any part of the Obligations, (ii) all the Obligations and all
other amounts payable under this Guaranty shall be paid in full and (iii) the
Commitments shall have expired or terminated, the Agent will, at the Guarantor's
request, execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations
resulting from such payment by the Guarantor.
[The preceding Section 4(a) will be used if the Assignee is
incorporated and has its principal office in a jurisdiction other than the
United States of America, or a State, Territory or possession thereof.
Otherwise, the following Section 4(a) will be used.]
SECTION 4. Waiver of Subrogation. (a) The Guarantor hereby
irrevocably waives any claim or other right which it may now or hereafter
acquire against the Assignee that arises from the existence, payment,
performance or enforcement of the Guarantor's obligations under this Guaranty or
any other Loan Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Agent or any Lender against
the Assignee or any collateral which the Agent or any Lender now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including without limitation, the
right to take or receive from the Assignee, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other right. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time prior to the later
of (x) the payment in full of the Obligations and all other amounts payable
under this Guaranty and (y) the expiration or termination of the Commitments,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for the benefit of the Agent and the Lenders and shall
forthwith be paid to the Agent to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the Five Year
Credit Agreement or to be held by the Agent as collateral security for any
Obligations thereafter existing. The waiver set forth in this Section 4(a) is
knowingly made in contemplation of the benefits referred to in the Preliminary
Statements.
(b) The Guarantor agrees that, to the extent that the Assignee makes
a payment or payments to the Agent or any Lender or the Agent or any Lender
receives any proceeds of collateral, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or otherwise required to be repaid to the Assignee, its estate,
trustee, receiver or any other party, including, without limitation, under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment or repayment, the Obligation or part thereof which has
been paid, reduced or satisfied by such amount shall be reinstated and continued
in full force and effect as of the date such initial payment, reduction or
satisfaction occurred. The Guarantor shall defend and indemnify the Agent and
each Lender from and against any claim or loss under this Section 4(b)
(including reasonable attorneys' fees and expenses) in the defense of any such
action or suit.
SECTION 5. Payments With Respect to Taxes, Etc. Any and all payments
made by the Guarantor hereunder shall be subject to and made in accordance with
Section 2.13 of the Five Year Credit Agreement as if all such payments were
being made by the Borrower.
SECTION 6. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, and has all
corporate power required to carry on its business as now conducted.
(b) The execution and delivery by the Guarantor of this Guaranty, and
the performance of its obligations hereunder, are within the Guarantor's
corporate power, have been duly authorized by all necessary corporate and
other 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 Guarantor or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon or affecting the Guarantor or result in the creation or imposition of
any Lien on any asset of the Guarantor or any of its Subsidiaries.
(c) This Guaranty has been duly executed and delivered by the
Guarantor and constitutes a valid and binding agreement of the Guarantor
enforceable in accordance with its terms.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Guarantor of this
Guaranty.
(e) The Assignee is a Subsidiary of the Guarantor and is a
corporation duly incorporated, validly existing and in good standing under
the laws of __________________________________.
(f) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(g) The Guarantor has, independently and without reliance upon any
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty, and no consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given, provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, (a) limit or release the liability of the Guarantor
hereunder, (b) postpone any date fixed for payment hereunder, or (c) change the
number of Lenders required to take any action hereunder.
SECTION 8. Addresses for Notices. All notices and other
communications provided for hereunder shall be given and effective as provided
in Section 8.02 of the Five Year Credit Agreement.
SECTION 9. No Waiver; Remedies. No failure on the part of any Lender
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10. Right of Set-off. If the Guarantor shall fail to make any
payment promptly when due hereunder after notice by the Agent or any Lender to
the Guarantor that the Assignee has failed to pay any Obligation when due, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of the Guarantor against any and all of the obligations of the Guarantor
now or hereafter existing under this Guaranty, whether or not such Lender shall
have made any demand under this Guaranty and although such obligations may be
contingent and unmatured. Each Lender agrees to notify the Guarantor, the Agent
and each other Lender promptly after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
SECTION 11. Continuing Guaranty; Assignments under Five Year Credit
Agreement. This Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until the later of (x) the payment in full of the Obligations
and all other amounts payable under this Guaranty and (y) the expiration or
termination of the Commitments, (ii) be binding upon the Guarantor, its
successors and assigns, and (iii) inure to the benefit of, and be enforceable
by, the Agent, the Lenders and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), any
Lender may assign or otherwise transfer all or any portion of its rights and
obligations under the Five Year Credit Agreement (including, without limitation,
all or any portion of its Commitment, the Advances owing to it and any Note held
by it) to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, subject, however, to the provisions of Section 8.07
of the Five Year Credit Agreement.
SECTION 12. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
COLGATE-PALMOLIVE COMPANY
By ____________________________________________
Title: