EXECUTION COPY
U.S. $330,000,000
364 DAY 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
68888.6/NYL3
T A B L E O F C O N T E N T S
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS 1
1.01. Certain Defined Terms 1
1.02. Computation of Time Periods 12
1.03. Accounting Terms 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES 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
ARTICLE III
CONDITIONS OF LENDING 29
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
ARTICLE IV
REPRESENTATIONS AND WARRANTIES 31
4.01. Representations and Warranties of the Borrower 31
ARTICLE V
68888.6/NYL3
Section Page
COVENANTS OF THE BORROWER 34
5.01. Affirmative Covenants 34
5.02. Negaive Covenants 36
ARTICLE VI
EVENTS OF DEFAULT 40
6.01. Events of Default 40
ARTICLE VII
THE AGENT
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 48
8.08. Change of Control 51
8.09. Mitigation of Adverse Circumstances 52
8.10. Governing Law 52
8.11. Extensions of Termination Date for Commitments 52
8.12. Execution in Counterparts 53
8.13 Jurisdiction, Etc 53
8.14. Waiver of Jury Trial 54
68888.6/NYL3
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
68888.6/NYL3
EXECUTION COPY
364 DAY 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 herein 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
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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
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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
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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.
68888.6/NYL3
"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
68888.6/NYL3
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
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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;
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(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
68888.6/NYL3
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.
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"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).
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"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
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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) subject to the
provisions of Section 8.11, the 364th day after the date hereof 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".
68888.6/NYL3
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
68888.6/NYL3
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, the Agent 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
68888.6/NYL3
suspension, and as soon as such circumstances no longer exist the
Required Lenders will notify the Agent and the Agent will 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
68888.6/NYL3
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
68888.6/NYL3
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
68888.6/NYL3
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 any anticipated profit),
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
68888.6/NYL3
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:
68888.6/NYL3
Utilization Facility
Moody's S&P Fee Fee
A3 or above and A- or above 0.000% 0.075%
Baa2 or above and BBB or above 0.070% 0.125%
Lower than above or not rated 0.150% 0.175%
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
68888.6/NYL3
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 and A- or above 0.250%
Baa2 or above and BBB or above 0.275%
Lower than above or not rated 0.375%
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
68888.6/NYL3
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
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
68888.6/NYL3
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
68888.6/NYL3
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.
68888.6/NYL3
25
(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
68888.6/NYL3
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
68888.6/NYL3
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.
68888.6/NYL3
(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.
68888.6/NYL3
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
68888.6/NYL3
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
68888.6/NYL3
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.
68888.6/NYL3
(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.
68888.6/NYL3
(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.
68888.6/NYL3
(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.
68888.6/NYL3
(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;
68888.6/NYL3
(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:
68888.6/NYL3
(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
68888.6/NYL3
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:
68888.6/NYL3
(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
68888.6/NYL3
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
68888.6/NYL3
(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
68888.6/NYL3
(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.
68888.6/NYL3
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.
68888.6/NYL3
(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.
68888.6/NYL3
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
68888.6/NYL3
(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 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
68888.6/NYL3
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
68888.6/NYL3
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
68888.6/NYL3
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.
68888.6/NYL3
(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
68888.6/NYL3
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
68888.6/NYL3
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. Extensions of Termination Date for Commitments.
The Borrower may from time to time request through the Agent that the Lenders
agree in writing to extend the Termination Date then in effect (the "Specified
Date") for the Commitments to
68888.6/NYL3
the 364th day after such Specified Date; such request shall be received by the
Agent at least 20 days (but not more than 30 days) prior to the expiration of
the Termination Date then in effect. If at least five days prior to the
expiration of the Termination Date for the Commitments then in effect the
Borrower receives written acceptance of its request from at least five Lenders,
the Termination Date for the Commitments then in effect will be extended as to
those Lenders who accept the Borrower's request but shall not be extended as to
any other Lender. Such extended Commitments shall become effective on the
Specified Date. To the extent that the Termination Date for the Commitments in
effect at any time is not extended as to any Lender pursuant to this Section
8.11 or by other prior written agreement executed by such Lender on or before
such Termination Date, the Commitment of such Lender shall automatically
terminate in whole on such unextended Termination Date without any further
notice or other action by the Borrower, such Lender or any other Person. It is
understood that no Lender shall have any obligation whatsoever to agree to any
request made by the Borrower for the extension of the Termination Date for the
Commitments.
SECTION 8.12. 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 8.13 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.
68888.6/NYL3
(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 8.14. 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 ___________________________________________
Title
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
Mathias Blumschein
By ___________________________________________
Title: Associate
68888.6/NYL3
Banks
Commitment
$210,000,000 CITIBANK, N.A.,
Michel R.R. Pendill
By ___________________________________________
Title
$120,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
Mathias Blumschein
By ___________________________________________
Title: Associate
$330,000,000 Total of the Commitments
68888.6/NYL3
SCHEDULE I
Colgate-Palmolive Company
$330,000,000 CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of
Bank Domestic Lending Office Eurodollar Lending Office
Citibank, N.A. 399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Morgan Guaranty 500 Stanton Christiana Road 500 Stanton Christiana Road
Trust Company of Newark, Del. 19713 Newark, Del. 19713
New York
68888.6/NYL3
Schedule 4.01(f)
None.
EXHIBIT A-1 - FORM OF
A NOTE
U.S.$ 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 364 Day 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 364 Day Credit
Agreement referred to below) on the Termination Date (as defined in the 364 Day
Credit Agreement referred to below) and the principal amount of each other A
Advance (as defined in the 364 Day Credit Agreement referred to below) owing to
the Lender by the Borrower pursuant to the 364 Day 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 "364 Day 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 364 Day 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, 7th Floor, Long Island City, New York 11120, in immediately available
funds. Each A Advance owing to the Lender by the Borrower pursuant to the 364
Day 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 364 Day Credit Agreement. The 364 Day 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:
- ------------
[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 __, 1995
OF COLGATE-PALMOLIVE COMPANY
ADVANCES AND PAYMENTS OF PRINCIPAL
===================================================================================================================================
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 364 Day 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 364 Day Credit Agreement dated as of January
8, 1995 (as amended or otherwise modified from time to time, the "364 Day 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 364 Day 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.
68888.6/NYL3
2
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:
68888.6/NYL3
EXHIBIT B-1 - FORM OF
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the 364 Day 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 364
Day Credit Agreement, dated as of January 8, 1995 (as amended or otherwise
modified through the date hereof, the "364 Day 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 364 Day Credit Agreement
that the undersigned hereby requests an A Borrowing under the 364 Day 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 364 Day 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 364 Day 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
68888.6/NYL3
2
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:
68888.6/NYL3
EXHIBIT B-2 - FORM OF
NOTICE OF B BORROWING
Citibank, N.A, as Agent for
the Lenders parties to
the 364 Day 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 364
Day Credit Agreement dated as of January 8, 1995 (as amended or otherwise
modified through the date hereof, the "364 Day 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 364 Day Credit Agreement that the
undersigned hereby requests a B Borrowing under the 364 Day 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) ________________________________________ _______________
68888.6/NYL3
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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 364 Day Credit Agreement as required by the terms
of the 364 Day 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 364 Day 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 364 Day 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 364 Day
Credit Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By: _____________________
Title:
68888.6/NYL3
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364 Day Credit Agreement dated as of
January 8, 1995 (as amended or modified from time to time, the "364 Day Credit
Agreement") among COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the 364 Day 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 364 Day 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 364 Day 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 364 Day 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 364
Day Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the 364 Day 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 364 Day 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 364 Day Credit
Agreement, respectively, as specified on Schedule 1 hereto.
68888.6/NYL3
2
3. The Assignee (i) confirms that it has received a copy of
the 364 Day 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 364 Day 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 364 Day Credit Agreement; (iii) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the 364 Day 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 364 Day
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 364 Day 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 364 Day 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 364 Day 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 364 Day
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
- --------
* If the Assignee is organized under the laws of a jurisdiction outside
the United States.
68888.6/NYL3
3
in payments under the 364 Day 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.
68888.6/NYL3
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
and the Borrower.
68888.6/NYL3
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[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:
68888.6/NYL3
EXHIBIT D
January __, 1995
To each of the Lenders party
to the 364 Day 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 $330,000,000 364 Day 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 "364 Day Credit Agreement"). This opinion is being furnished to
you pursuant to Section 3.01(e) of the 364 Day Credit Agreement. Terms used in
this opinion which are defined in the 364 Day 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 364 Day 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 364 Day 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
364 Day Credit Agreement, the Notes and the Guaranties.
4. The 364 Day 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 364 Day
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
364 Day 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 364 Day Credit
Agreement dated as of January 8, 1995 (the "364 Day 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 364 Day Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) A counterpart of the 364 Day Credit Agreement, executed by
each of the parties thereto.
(2) The documents furnished by the Borrower pursuant to
Section 3.01 of the 364 Day 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
364 Day 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
68888.6/NYL3
2
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 364 Day 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 364 Day 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
364 Day 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
68888.6/NYL3
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 364 Day 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 364 Day 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
"364 Day 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
364 Day 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 364 Day Credit Agreement, so that
the Assignee may borrow and receive Advances under the 364 Day 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 364 Day 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 364 Day 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 364 Day Credit Agreement and the Notes but for
the fact that they are unenforceable or
68888.6/NYL3
2
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 364
Day 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 364 Day
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 364 Day
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.
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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 364 Day 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
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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 364 Day 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 364 Day 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
68888.6/NYL3
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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 364 Day 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
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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 364 Day
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 364 Day 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 364 Day 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:
68888.6/NYL3