EXHIBIT 4.11
EXECUTION COPY
U.S. $8,000,000,000
5-YEAR LOAN AND GUARANTY AGREEMENT
Dated as of October 26, 1995
among
PHILIP MORRIS COMPANIES INC.
and
THE BANKS NAMED HEREIN
and
CITIBANK, N.A.,
as Agent
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms................................................. 1
1.02. Additional Definitions................................................ 13
1.03. Computation of Time Periods........................................... 13
1.04. Accounting Terms...................................................... 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The A Advances........................................................ 13
2.02. Making the A Advances................................................. 14
2.03. The B Advances........................................................ 16
2.04. Fees.................................................................. 20
2.05. Reduction of the Commitments.......................................... 20
2.06. Repayment of A Advances............................................... 21
2.07. Interest on A Advances................................................ 21
2.08. Additional Interest on Eurodollar Rate Advances....................... 22
2.09. Interest Rate Determination........................................... 22
2.10. Prepayment of A Advances.............................................. 23
2.11. Increased Costs....................................................... 23
2.12. Payments and Computations............................................. 25
2.13. Taxes................................................................. 26
2.14. Sharing of Payments, Etc.............................................. 27
2.15. Evidence of Debt...................................................... 28
ARTICLE III
CONDITIONS OF LENDING
3.01. Condition Precedent to Initial Advances............................... 28
3.02. Conditions Precedent to Each A Borrowing.............................. 29
3.03. Condition Precedent to Certain A Borrowings........................... 30
3.04. Conditions Precedent to Each B Borrowing.............................. 30
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(ii)
3.05. Conditions Precedent to Effectiveness of this Agreement............... 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of PM Companies........................ 32
ARTICLE V
COVENANTS OF PM COMPANIES
5.01. Affirmative Covenants................................................. 33
5.02. Negative Covenants.................................................... 36
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default..................................................... 37
ARTICLE VII
THE AGENT
7.01. Authorization and Action.............................................. 40
7.02. Agent's Reliance, Etc................................................. 40
7.03. Citibank and Affiliates............................................... 41
7.04. Lender Credit Decision................................................ 41
7.05. Indemnification....................................................... 41
7.06. Successor Agent....................................................... 42
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ARTICLE VIII
GUARANTY
8.01. Guaranty............................................................. 42
8.02. Guaranty Absolute.................................................... 42
8.03. Waivers.............................................................. 43
8.04. Payments Free and Clear of Taxes, Etc................................ 44
8.05. No Waiver; Remedies.................................................. 44
8.06. Continuing Guaranty.................................................. 45
ARTICLE IX
SUBSIDIARY BORROWER
9.01. Subsidiary Borrower.................................................. 45
ARTICLE X
MISCELLANEOUS
10.01. Amendments, Etc...................................................... 46
10.02. Notices, Etc......................................................... 47
10.03. No Waiver; Remedies.................................................. 47
10.04. Costs, Expenses and Taxes............................................ 48
10.05. Right of Setoff...................................................... 49
10.06. Binding Effect....................................................... 49
10.07. Assignments and Participations....................................... 49
10.08. Governing Law........................................................ 52
10.09. Execution in Counterparts............................................ 52
Schedule I List of Applicable Lending Offices
Exhibit A Form of B Note
Exhibit B-1 Notice of A Borrowing
Exhibit B-2 Notice of B Borrowing
Exhibit C Assignment and Acceptance
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(iv)
Exhibit D Form of Opinion of Counsel for Philip Morris Companies Inc.
Exhibit E Form of Opinion of Special Counsel for the Agent
Exhibit F Notice of Acceptance
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5-YEAR LOAN AND GUARANTY AGREEMENT
Dated as of October 26, 1995
PHILIP MORRIS COMPANIES INC., a Virginia corporation ("PM
Companies"), the banks (the "Banks") listed on the signature pages hereof, and
CITIBANK, N.A. ("Citibank"), as agent (the "Agent") for the Lenders hereunder,
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 a Borrower as part of an
A Borrowing by such Borrower consisting of A Advances of the same Type from
each of the Lenders pursuant to Section 2.01 and refers to a Base Rate Advance,
an Adjusted CD 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 from each of the Lenders to a Borrower pursuant to Section
2.01.
"Adjusted CD Rate" means, for the Interest Period for each Adjusted
CD Rate Advance comprising part of the same A Borrowing, an interest rate per
annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the rate of interest
determined by the Agent to be the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the consensus bid rate determined by each of the Reference
Banks for the bid rates per annum, at 9:00 A.M. (New York City time) (or
as soon thereafter as practicable) on the first day of such Interest
Period, of New York certificate of deposit dealers of recognized standing
selected by such Reference Bank for the purchase at face value of
certificates of deposit of such Reference Bank in an amount approximately
equal to
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such Reference Bank's Adjusted CD Rate Advance comprising part of
such A Borrowing and with a maturity equal to such Interest Period, by
(ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such Interest Period, plus
(b) the Assessment Rate (as defined below) for such Interest Period.
"Adjusted CD Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(b).
The "Adjusted CD Rate Reserve Percentage" for the Interest Period for
each Adjusted CD Rate Advance comprising part of the same A Borrowing means the
reserve percentage applicable on the first day of such Interest Period 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, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion dollars with
respect to liabilities consisting of or including (among other liabilities)
U.S. dollar nonpersonal time deposits in the United States with a maturity
equal to such Interest Period. The "Assessment Rate" for the Interest Period
for such Adjusted CD Rate Advance comprising part of the same A Borrowing means
the annual assessment rate estimated by the Agent on the first day of such
Interest Period for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States. The Adjusted CD
Rate for the Interest Period for each Adjusted CD Rate Advance comprising part
of the same A Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks on the first day of such Interest Period, subject, however, to the
provisions of Section 2.09.
"Advance" means an A Advance or a B Advance.
"Applicable Facility Fee Rate" means for any period a percentage per
annum equal to the percentage set forth below determined by reference to the
higher of (i) the rating of PM Companies' long-term senior unsecured Debt from
Standard & Poor's Ratings Group and (ii) the rating of PM Companies' long-term
senior unsecured Debt from Moody's Investors Service, in each case in effect
from time to time during such period:
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Long-Term Applicable
Senior Unsecured Facility
Debt Rating Fee Rate
---------------- ----------
AA- and Aa3 (or higher) 0.0600%
A- and A3 or higher,
but lower than AA- and Aa3 0.0750%
BBB and Baa2 or higher,
but lower than A- and A3 0.1000%
Lower than BBB and Baa2 0.1750%;
provided that if no rating is available on any date of determination from
Moody's Investors Service and Standard & Poor's Ratings Group or any other
nationally recognized statistical rating organization designated by PM
Companies and approved in writing by the Majority Lenders, the Applicable
Facility Fee Rate shall be 0.175%.
"Applicable Interest Rate Margin" means for any Interest Period a
percentage per annum equal to the percentage set forth below determined by
reference to the higher of (i) the rating of PM Companies' long-term senior
unsecured Debt from Standard & Poor's Ratings Group and (ii) the rating of PM
Companies' long-term senior unsecured Debt from Moody's Investors Service, in
each case from time to time during such Interest Period:
Long-Term Applicable
Senior Unsecured Interest Rate
Debt Rating Margin
---------------- -------------
AA- and Aa3 (or higher) 0.0900%
A- and A3 or higher
but lower than AA- and Aa3 0.1750%
BBB and Baa2 or higher,
but lower than A- and A3 0.2750%
Lower than BBB and Baa2 0.3250%;
provided that if no rating is available on any date of determination from
Moody's Investors Service and Standard & Poor's Ratings Group or any other
nationally recognized statistical
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rating organization designated by PM Companies and approved in writing by the
Majority Lenders, the Applicable Interest Rate Margin shall be 0.325%.
"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 CD Lending Office in the case of an Adjusted CD Rate Advance, and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Lender notified by such
Lender to the Agent with respect to such B Advance.
"Applicable Usage Fee Rate" means for any period a percentage per
annum equal to 0.1250%.
"Asset Disposition" means any sale, lease, transfer, spin-off or
other disposition ("Disposition") to any Person (including any shareholder of
PM Companies), voluntarily or involuntarily, of any of the Tobacco Assets
(whether now owned or hereafter acquired) of PM Companies and its directly and
indirectly owned subsidiaries, provided that "Asset Disposition" shall not mean
(i) any Disposition of Tobacco Assets to PM Companies or any subsidiary
directly or indirectly wholly-owned by PM Companies, (ii) any sale and
lease-back of Tobacco Assets which, together with all such sale and lease-back
transactions occurring from and after June 30, 1995, does not exceed an
aggregate amount equal to $500,000,000, provided that the lease term related to
such sale and lease-back transaction has a duration approximately equal to the
useful life of such Tobacco Assets, (iii) any Disposition of Tobacco Assets in
the ordinary course of business and (iv) any Disposition which, together with
all such other Dispositions (excluding all Dispositions described in clauses
(i), (ii) and (iii) of this definition) occurring from and after June 30, 1995,
does not exceed an aggregate amount equal to $1,100,000,000 net after-tax
proceeds calculated in accordance with the provisions of Section 2.05(b).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent,
in substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to a Borrower as part of a
B Borrowing by such Borrower resulting from the auction bidding procedure
described in Section 2.03(a).
"B Borrowing" means a borrowing consisting of simultaneous B Advances
to a Borrower from each of the Lenders whose offer to make one or more B
Advances as part of such borrowing has been accepted by such Borrower under the
auction bidding procedure described in Section 2.03(a).
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"B Note" means a promissory note of a Borrower payable to the order
of any Lender, in substantially the form of Exhibit A hereto, evidencing the
indebtedness of such Borrower to such Lender resulting from a B Advance to such
Borrower, together with, if such Borrower is a subsidiary of PM Companies, a
guaranty of the Guarantor endorsed thereon, substantially in the form of
Exhibit A hereto.
"B Reduction" has the meaning assigned to that term in Section 2.01.
"Base Rate" means, for any Interest Period or any other period, 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 rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) 1/2 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 such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday by
Citibank 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
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank, in either case adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one
percent; or
(c) for any day 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a).
"Borrower" means PM Companies or any subsidiary of PM Companies with
respect to which a Notice of Acceptance has been given, and whenever in this
Agreement the term "Borrower" is used in the singular, it shall refer to the
appropriate Borrower, or to all Borrowers, as the context may require.
"Borrowing" means an A Borrowing or a B Borrowing.
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"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 Advance, on which dealings are
carried on in the London interbank market.
"CD Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "CD 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 PM Companies and the Agent.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated Tangible Assets" means all assets properly appearing on
a consolidated balance sheet of PM Companies and its subsidiaries after
deducting goodwill, trademarks, patents, other like intangibles, and the
minority interests of other Persons in such subsidiaries, all as determined in
accordance with generally accepted accounting principles, except that if there
has been a material change in an accounting principle as compared to that
applied in the preparation of the financial statements of PM Companies and its
subsidiaries as at and for the six months ended June 30, 1995, then such new
accounting principle shall not be used in the determination of Consolidated
Tangible Assets. A material change in an accounting principle is one that in
the year of its adoption changes Consolidated Tangible Assets at such year-end
by more than 10%.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services, or obligations evidenced by bonds,
debentures, notes or similar instruments, (ii) obligations as lessee under
leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, and (iii)
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 clause (i) or (ii) above.
"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 PM Companies and the Agent.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000; (ii) a commercial bank organized under the laws of
any other country which is a member of the OECD, or a political subdivision of
any such country, and having total assets in excess of
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$5,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is
also a member of the OECD or the Cayman Islands; (iii) the central bank of any
country which is a member of the OECD; (iv) a commercial finance company or
finance subsidiary of a corporation organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$3,000,000,000; (v) an insurance company organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$5,000,000,000; (vi) any Bank; and (vii) an affiliate of any Lender.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
ERISA is a member of any Borrower's or PM Companies' controlled group, or under
common control with such Borrower or PM Companies, within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended from time to time.
"ERISA Event" means (i) (A) the occurrence with respect to a Plan of
a reportable event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived by the PBGC, or
(B) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (ii) 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); (iii) the cessation of operations at
a facility of any Borrower or PM Companies or any of their ERISA Affiliates in
the circumstances described in Section 4062(e) of ERISA; (iv) the withdrawal by
any Borrower or PM Companies or any of their 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; (v) the conditions set forth in Section
302(f)(1)(A) and (B) of ERISA to the creation of a lien upon property or rights
to property of any Borrower or PM Companies or any of their ERISA Affiliates
for failure to make a required payment to a Plan are satisfied; (vi) the
adoption of an amendment to a Plan requiring the provision of security to such
Plan, pursuant to Section 307 of ERISA; or (vii) the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
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"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 PM Companies and the Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance comprising part of the same A 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 approximately equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such A Borrowing 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 A 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).
"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 reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended from time to time.
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"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 the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charges" means, for any accounting period, the sum of (i)
interest, whether expensed or capitalized, in respect of any Debt outstanding
during such period, plus (ii) amortization of debt expense and discount or
premium relating to any Debt outstanding during such period, whether expensed
or capitalized, plus (iii) such portion of rental expense as can be
demonstrated to be representative of the interest factor in the particular
case, all as to be applicable to continuing operations and determined in
accordance with generally accepted accounting principles, except that if there
has been a material change in an accounting principle as compared to that
applied in the preparation of the financial statements of PM Companies as at
and for the six months ended June 30, 1995, then such new accounting principle
shall not be used in the determination of Fixed Charges. A material change in
an accounting principle is one that, in the year of its adoption, changes Net
Income Before Tax or Fixed Charges for any quarter in such year by more than
10%.
"Guarantor" means PM Companies.
"Guaranty" has the meaning specified in Section 8.01.
"Insufficiency" means, with respect to any Plan, the amount of
"unfunded benefit liabilities" (as defined in Section 4001(a)(18) of ERISA), if
any, for such Plan.
"Interest Period" means, for each A Advance comprising part of the
same A Borrowing, the period commencing on the date of such A Advance and
ending on the last day of the period selected by PM Companies pursuant to the
provisions below. The duration of each such Interest Period shall be (a) in the
case of an Adjusted CD Rate Advance, 30, 60, 90 or 180 days, (b) in the case of
a Base Rate Advance, 1, 2, 3 or 6 months and (c) in the case of a Eurodollar
Rate Advance, 1, 2, 3 or 6 months, in each case as PM Companies may, upon
notice received by the Agent not later than 12:00 Noon (New York City time) on
the third Business Day with respect to a Eurodollar Rate Advance, on the second
Business Day with respect to an Adjusted CD Rate Advance and on the Business
Day with respect to a Base Rate Advance, prior to the first day of such
Interest Period, select; provided, however, that:
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(i) the duration of any Interest Period which commences before the
Termination Date and would otherwise end after the Termination Date shall
end on the Termination Date;
(ii) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same duration; and
(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.
"Lenders" means the Banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to Section
10.07.
"Major Plan" means, at any time, a Plan with an Insufficiency of
$25,000,000 or more.
"Major Subsidiary" means any subsidiary (a) more than 50% of the
voting securities of which is owned directly or indirectly by PM Companies, (b)
which is organized and existing under, or has its principal place of business
in, the United States or any political subdivision thereof, Canada or any
political subdivision thereof, any country which is a member of the European
Economic Community on the date hereof (other than Greece, Portugal or Spain) or
any political subdivision thereof, Sweden, Switzerland, Norway or Australia or
any of their respective political subdivisions, and (c) which has at any time
total assets (after intercompany eliminations) exceeding $500,000,000.
Notwithstanding the foregoing, Mission Viejo Company (a California corporation)
and any of its subsidiaries engaged in the business of community development,
commercial real estate development, real estate investment or related
activities shall not be a Major Subsidiary.
"Majority Lenders" means at any time Lenders holding at least 66-2/3%
of the aggregate unpaid principal amount of the A Advances then outstanding,
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 PM
Companies or any Borrower, nor any of their respective 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).
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Borrower or PM Companies or any ERISA
Affiliate is
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making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or more collective
bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any
Borrower or PM Companies or any ERISA Affiliate and at least one Person other
than any Borrower or PM Companies and its ERISA Affiliates or (ii) was so
maintained and in respect of which any Borrower or PM Companies or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Income Before Tax" means, for any accounting period, income or
loss from continuing operations for such period, as determined in accordance
with generally accepted accounting principles, plus total federal, state and
foreign income taxes which have been included in the determination of income or
loss from continuing operations for such period in accordance with generally
accepted accounting principles and amounts which, in the determination of
income or loss from continuing operations for such period, have been deducted
for the items referred to in the definition of Fixed Charges in this Section,
except that if there has been a material change in an accounting principle as
compared to that applied in the preparation of the financial statements of PM
Companies as at and for the six months ended June 30, 1995, then such new
accounting principle shall not be used in the determination of Net Income
Before Tax. A material change in an accounting principle is one that, in the
year of its adoption, changes Net Income Before Tax or Fixed Charges for any
quarter in such year by more than 10%.
"1993 Loan Agreement" has the meaning specified in Section 3.05(a).
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Acceptance" has the meaning specified in Section 9.01(a).
"Notice of B Borrowing" has the meaning assigned to that term in
Section 2.03(a).
"Notice of Borrowing" means either a Notice of A Borrowing or a
Notice of B Borrowing.
"Obligations" has the meaning specified in Section 8.01.
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Taxes" has the meaning specified in Section 2.13(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any
successor corporation 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.
"Philip Morris" means Philip Morris Incorporated, a Virginia
corporation wholly owned by PM Companies.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Reference Banks" means Citibank, Mellon Bank N.A., Barclays Bank PLC
and Dresdner Bank AG.
"Register" has the meaning specified in Section 10.07(c).
"Significant Plan" means a Plan whose assets have a current value in
excess of $100,000,000.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any
Borrower, PM Companies or an ERISA Affiliate and no Person other than such
Borrower or PM Companies or any of their ERISA Affiliates or (ii) was so
maintained and in respect of which any Borrower or PM Companies or an ERISA
Affiliate could have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
"Termination Date" means October 26, 2000, or the earlier date of
termination in whole of the Commitments pursuant to Section 2.05 or Section
6.01.
"Tobacco Assets" means all assets consisting of tobacco and tobacco
related assets, including, without limitation, all tobacco inventory, aging
warehouses, cigarette manufacturing facilities, distribution warehouses,
trademarks, tradenames and know-how and which relate to the domestic and United
States export business of PM Companies and its subsidiaries.
"Type" means, with reference to an A Advance, an Adjusted CD Rate
Advance, a Base Rate Advance or a Eurodollar Rate Advance.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.02. Additional Definitions. For purposes of this Agreement,
"subsidiary" means, with respect to any Person, any corporation of which more
than 50% of the outstanding capital stock having 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 such Person, by
such Person and one or more other subsidiaries, or by one or more other
subsidiaries.
SECTION 1.03. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.04. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles, except that if there has been a material change in an
accounting principle affecting the definition of an accounting term as compared
to that applied in the preparation of the financial statements of PM Companies
as at and for the six months ended June 30, 1995, then such new accounting
principle shall not be used in the determination of the amount associated with
that accounting term. A material change in an accounting principle is one that,
in the year of its adoption, changes the amount associated with the relevant
accounting term for such year by more than 10%.
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 any Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount for all of the Borrowers 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 one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 10.07(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 to be
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 (each 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 $50,000,000 and shall consist of A Advances of the same Type made to
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the same Borrower on the same day by the Lenders ratably according to their
respective Commitments and one or more A Borrowings may be made on the same
day. Within the limits of each Lender's Commitment, the Borrowers may borrow,
repay pursuant to Section 2.06, prepay pursuant to Section 2.10(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 not later than 12:00 Noon (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, on the second Business Day prior to the date of the
proposed A Borrowing in the case of Adjusted CD Rate Advances, and on the
Business Day prior to the date of the proposed A Borrowing in the case of Base
Rate Advances, by PM Companies to the Agent, which shall give to each Lender
prompt notice thereof by telex or cable. Each such notice of an A Borrowing (a
"Notice of A Borrowing") shall be by telex or cable, confirmed immediately in
writing, 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, (iv) Interest
Period for each such A Advance, and (v) name of the Borrower. In the case of a
proposed A Borrowing comprised of Adjusted CD Rate Advances or Eurodollar Rate
Advances, the Agent shall promptly notify each Lender of the applicable
interest rate under Section 2.07(b) or (c). Each Lender shall, before 11:00
A.M. (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 its address
referred to in Section 10.02, in same day 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 make such funds available to the applicable Borrower at the Agent's
aforesaid address.
(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 A 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 right of PM
Companies to select Eurodollar Rate Advances for such A Borrowing or any
subsequent A Borrowing shall be suspended until such Lender shall notify
the Agent that the circumstances causing such suspension no longer exist,
and each A Advance comprising such requested A Borrowing shall be a Base
Rate Advance. Each Lender agrees that it shall notify the Agent and PM
Companies of any such introduction, change, interpretation or assertion
referred to above promptly after such Lender becomes aware of the
occurrence thereof;
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(ii) if less than two Reference Banks furnish timely information to
the Agent for determining the Adjusted CD Rate for Adjusted CD Rate
Advances, or the Eurodollar Rate for Eurodollar Rate Advances, comprising
any requested A Borrowing, the right of any Borrower to select Adjusted CD
Rate Advances or Eurodollar Rate Advances, as the case may be, for such A
Borrowing or any subsequent A Borrowing shall be suspended until the Agent
shall notify PM Companies and the Lenders that the circumstances causing
such suspension no longer exist, and each A Advance comprising such A
Borrowing shall be a Base Rate Advance; and
(iii) if the Majority Lenders shall, at least one Business Day before
the date of any requested A Borrowing, notify the Agent that the
Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing
will not adequately reflect the cost to such Majority Lenders of making or
funding their respective Eurodollar Rate Advances for such A Borrowing,
the right of PM Companies to select Eurodollar Rate Advances for such A
Borrowing or any subsequent A Borrowing shall be suspended until the
Agent, after its receipt of notice from such Majority Lenders that the
circumstances causing such suspension no longer exist, shall notify PM
Companies and the Lenders to such effect, and each A Advance comprising
such A Borrowing shall be a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on PM
Companies and, if the Borrower named therein is not PM Companies, such
Borrower. In the case of any A Borrowing which the related Notice of A
Borrowing specifies is to be comprised of Adjusted CD Rate Advances or
Eurodollar Rate Advances, PM Companies and, if the Borrower named therein is
not PM Companies, such Borrower severally agree to 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 (including 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 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
thereof 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 such Borrower severally agree to repay to the Agent forthwith
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on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to such Borrower until the date
such amount is repaid to the Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to the 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
any Borrower may make 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 7 days prior to the Termination Date in the manner set forth below;
provided that, following the making of each B Borrowing the aggregate amount of
the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any B Reduction).
(i) PM Companies may request a B Borrowing under this Section 2.03 by
delivering to the Agent, by telex or cable, confirmed immediately in
writing, a notice of a B Borrowing (a "Notice of B Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying the name of the
Borrower, the date and aggregate amount of the proposed B Borrowing, the
maturity date for repayment of each B Advance to be made as part of such B
Borrowing (which maturity date, in the case of a Notice of B Borrowing
delivered pursuant to clause (A) of this paragraph (i), may not be earlier
than the date occurring 7 days after the date of such B Borrowing or later
than the date occurring 180 days after the date of such B Borrowing and,
in the case of a Notice of B Borrowing delivered pursuant to clause (B) of
this paragraph (i), may not be earlier than the date occurring 14 days
after the date of such B Borrowing or later than the date occurring 180
days after the date of such B Borrowing, and in no event may the maturity
date for any B Borrowing be later than the Termination Date), the interest
payment date or dates relating thereto, the interest rate basis on which
the Lenders may make offers to make B Advances to such Borrower (which
basis may be a fixed or floating rate) and any other terms to be
applicable to such B Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least two Business Days prior to the date of the proposed
B Borrowing, if PM Companies shall specify in the Notice of B Borrowing
that the rates of interest to be offered by the Lenders shall be fixed
rates per annum and (B) at least four Business Days prior to the date of
the proposed
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B Borrowing, if PM Companies shall instead specify in the Notice of B Borrowing
the basis to be used by the Lenders in determining the rates of interest to be
offered by them. The Agent shall in turn promptly notify each Lender of each
request for a B Borrowing received by it by sending such Lender a copy of the
related Notice of B Borrowing.
(ii) 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 named in
any such Notice of B Borrowing as part of the proposed B Borrowing at a
rate or rates of interest specified by such Lender in its sole discretion,
by notifying the Agent (which shall give prompt notice thereof to the
Borrower), before 10:00 A.M. (New York City time) (A) on the Business Day
prior to the date of such proposed B Borrowing, in the case of a Notice of
B Borrowing delivered pursuant to clause (A) of paragraph (i) above, and
(B) three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of 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 the
first sentence of this Section 2.03(a), exceed such Lender's Commitment),
the rate or rates of interest therefor and 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 before 9:00
A.M. (New York City time) on the Business Day prior to the date of such
proposed B Borrowing, in the case referred to in clause (A) of this
paragraph (ii), and three Business Days before the date of such proposed B
Borrowing, in the case referred to in clause (B) of this paragraph (ii).
If any Lender shall elect not to make such an offer, such Lender shall so
notify the Agent before 10:00 A.M. (New York City time) on the Business
Day prior to the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i)
above, and three Business Days before the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant to
clause (B) of paragraph (i) above, 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 of 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.
(iii) The Borrower named in any such Notice of B Borrowing shall, in
turn, (A) before 12:00 Noon (New York City time) on the Business Day prior
to the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (A) of paragraph (i) above and (B)
before 12:00 Noon (New York City time) three Business Days before the date
of such proposed B Borrowing, in the
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case of a Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, either
(A) cancel such B Borrowing by giving the Agent notice to that
effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above by giving notice to the
Agent of the amount of each B Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on behalf of
such Lender for such B Advance pursuant to paragraph (ii) above) to
be made by each Lender as part of such B Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above by
giving the Agent notice to that effect.
The acceptance of offers by such Borrower pursuant to this clause (B)
shall be on the basis of ascending rates of interest contained in the
offers made by Lenders pursuant to paragraph (ii) above; provided that, in
the event that two or more of such offers contain the same rate of
interest for a greater aggregate principal amount than the amount
specified in such Notice of B Borrowing less the aggregate principal
amount of all such offers containing lower rates of interest that have
been accepted by such Borrower pursuant to this clause (B), such Borrower
shall have sole discretion (subject to any minimum and maximum amount
specified in any such offer) to accept one or more of the offers at such
rate of interest and to reject any remaining offers at such rate of
interest.
(iv) If the Borrower named in any such Notice of B Borrowing notifies
the Agent that such B Borrowing is cancelled pursuant to paragraph
(iii)(A) above, the Agent shall give prompt notice thereof to the Lenders
and such B Borrowing shall not be made.
(v) If the Borrower named in any such Notice of B Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(B) above, the Agent shall in turn promptly notify (A) each
Lender which has made an offer as described in paragraph (ii) above, of
the date and aggregate amount of such B Borrowing and whether or not any
offer or offers made by such Lender pursuant to paragraph (ii) above have
been accepted by such 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
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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 its address set forth in Section 10.02 such
Lender's portion of such B Borrowing, in same day funds. 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 available to such
Borrower as soon as practicable on such date at the Agent's aforesaid
address. 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.
(b) Each B Borrowing shall be in an aggregate amount not less than
$100,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrower thereof shall be in
compliance with the limitation set forth in the proviso to the first sentence
of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, each Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) 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.
(d) Each Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance to such Borrower, or each other holder of a B
Note, on the maturity date of each B Advance made to it (such maturity date
being that specified for repayment of such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above or as provided in the B
Note evidencing such B Advance) the then unpaid principal amount of such B
Advance. No Borrower shall have the right to prepay any principal amount of any
B Advance unless, and then only on the terms, specified by PM Companies for
such B Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i) above and provided in the B Note evidencing such B Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount
of each B Advance made to it from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of interest
for such B Advance specified by the Lender making such B Advance in its notice
with respect thereto delivered pursuant to subsection (a)(ii) above, payable on
the interest payment date or dates specified by PM Companies for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the B Note evidencing such B Advance.
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(f) The indebtedness of each Borrower resulting from each B Advance
made to such Borrower as part of a B Borrowing shall be evidenced by a separate
B Note of such Borrower payable to the order of the Lender making such B
Advance.
(g) Any notice given to any party under this Section 2.03 shall be in
writing, or may be by telephone or telex, in each case confirmed immediately in
writing.
SECTION 2.04. Fees. (a) PM Companies agrees to pay to each Lender a
facility fee on the principal amount of such Lender's Commitment (whether or
not unused and without giving effect to any B Reduction) from the date hereof
in the case of each Bank (unless otherwise agreed to by PM Companies with such
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 at the Applicable Facility Fee Rate, in each case payable on
the last day of each March, June, September and December until the Termination
Date and on the Termination Date.
(b) For any period in which the aggregate principal amount of
Advances exceeds an amount equal to 50% of the total Commitments, PM Companies
agrees to pay to each Lender a usage fee on the excess of (i) the average daily
aggregate amount of Advances made by such Lender outstanding during such period
over (ii) 50% of such Lender's Commitment at the Applicable Usage Fee Rate, in
each case payable in arrears on the last day of each March, June, September and
December occurring during such period and on the Termination Date, if
applicable.
(c) PM Companies agrees to pay to the Agent the agency fee,
arrangement fee and competitive bid fee in the amounts and at the times set
forth in the engagement letter dated September 25, 1995 from the Agent to PM
Companies, as amended from time to time.
SECTION 2.05. Reduction of the Commitments. (a) PM Companies shall
have the right, upon five Business Days' notice to the Agent, to terminate in
whole 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 B Advances then outstanding and provided
further that each partial reduction shall be in the aggregate amount of at
least $50,000,000.
(b) In the event that there shall be an Asset Disposition, the
respective Commitments of the Lenders shall be reduced ratably by an aggregate
amount equal to 100% of the net after-tax proceeds of such Asset Disposition.
For the purpose of this subsection (b) any net after-tax non-cash proceeds or
spin-off shall be valued at (i) the greater of (x) the book value and (y) the
fair market value (as determined in good faith by the Board of Directors of PM
Companies) of the assets subject to such Asset Disposition, less (ii) the cash
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proceeds, if any, received as a result of such Asset Disposition. In the event
that the purchase price of assets subject to an Asset Disposition is subject to
adjustment, as a result of which PM Companies reasonably believes that the
proceeds ultimately to be received therefrom will be reduced, then until such
time as such adjustment is finalized, for purposes of this subsection (b) the
"net after-tax proceeds" shall include only the amount of those proceeds
actually received by PM Companies or any affiliate of PM Companies, less an
adjustment reserve in an amount reasonably determined by PM Companies to be
equivalent to such adjustment therein. As soon as such adjustment is finalized,
any further reduction in the Commitments shall be made as above provided in
this subsection (b). Any reduction pursuant to this subsection (b) shall be
effective on a date selected by PM Companies but in any event no later than the
last day of the calendar quarter during which the Asset Disposition occurs;
provided that any reduction which would be in amount less than $50,000,000
shall not be made but shall be included in the calculation of the subsequent
reduction or reductions provided for in this subsection (b) until the aggregate
amount of any such subsequent reduction shall be at least equal to $50,000,000,
and such reduction shall then be made as above provided in this subsection (b).
SECTION 2.06. Repayment of A Advances. Each Borrower shall repay the
principal amount of each A Advance made to it by each Lender on the last day of
the Interest Period for such A Advance.
SECTION 2.07. Interest on A Advances. Each Borrower shall pay
interest on the unpaid principal amount of each A Advance made to it by each
Lender 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 monthly on the 20th day of each month, 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 plus the Base Rate
in effect from time to time.
(b) Adjusted CD Rate Advances. If such A Advance is an Adjusted CD
Rate Advance, a rate per annum equal at all times during the Interest
Period for such A Advance to the sum of the Adjusted CD Rate for such
Interest Period plus the Applicable Interest Rate Margin, payable on the
last day of such Interest Period and, if such Interest Period has a
duration of 180 days, on the 90th 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
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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 plus the
Base Rate in effect from time to time.
(c) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during the Interest Period
for such A Advance to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Interest Rate Margin, payable on the last day
of such Interest Period and, if such Interest Period has a duration of six
months, on the last day of the third month 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 at all times to 1% per
annum plus the Base Rate in effect from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances. Each
Borrower 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 such Borrower, from
the date of such Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Lender and
notified to PM Companies through the Agent.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of
determining each Adjusted CD Rate or Eurodollar Rate, as applicable. If any one
or more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by
the remaining Reference Banks.
(b) The Agent shall give prompt notice to PM Companies and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a), (b) or (c), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable interest rate
under Section 2.07(b) or (c).
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SECTION 2.10. Prepayment of A Advances. (a) No Borrower shall have
the right to prepay any principal amount of any A Advances other than as
provided in subsection (b) below.
(b) Any Borrower may, upon at least four Business Days' notice to the
Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of A Advances comprising part of the same A
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however,
that (i) each partial prepayment shall be in an aggregate principal amount not
less than $50,000,000 and (ii) in the event of any such prepayment of an
Adjusted CD Rate Advance or a Eurodollar Rate Advance, such Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
10.04(b) hereof.
(c) If any Lender shall notify the Agent of any introduction, change,
interpretation or assertion referred to in Section 2.02(b)(i), or shall claim
payment of increased costs pursuant to Section 2.11(a) or (c) or payment of any
additional amounts payable pursuant to Section 2.13, PM Companies may, upon at
least five Business Days' notice to the Agent stating that the Borrowers intend
to repay the A Advances made by such Lender and terminate such Lender's
Commitment, and if such notice is given the Borrowers shall forthwith, on the
date specified in such notice, prepay in full all A Advances made by such
Lender with accrued interest thereon to the date of such prepayment and all
other amounts payable to such Lender by PM Companies and the other Borrowers
hereunder (including, without limitation, any amounts payable pursuant to
Section 10.04(b)), and upon such notice from PM Companies the Commitment of
such Lender to make further A Advances, and the obligation of PM Companies to
pay facility fees to such Lender, shall terminate.
(d) In the event that there shall be a reduction of the Commitments
pursuant to Section 2.05(b), the Borrowers shall on the date of such reduction
(or as soon thereafter as the Borrowers can do so without incurring liability
to any Lender pursuant to Section 10.04(b)) repay or prepay ratably A Advances
made as part of the same A Borrowings (together with interest accrued thereon
to such date) to the extent necessary so that the aggregate principal amount of
outstanding A Advances made by each Lender shall not exceed such Lender's
Commitment, as reduced on such date.
SECTION 2.11. Increased Costs. (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 Adjusted CD Rate Advances,
included in the Adjusted CD Rate Reserve Percentage or, 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
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authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or making, funding or maintaining
Adjusted CD Rate Advances or Eurodollar Rate Advances, then the Borrower of the
affected Advances 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 cost, provided that before making any such demand, such Lender shall
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such increased cost and will not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost, submitted to PM
Companies, such Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, in the case of any Adjusted CD Rate Advance, the Assessment
Rate for the Interest Period for such Adjusted CD Rate Advance shall be less
than the annual assessment for such Interest Period actually paid by such
Lender to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of such Lender in the United States, then the
Borrower of the affected Advance shall, upon demand of 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
assessment. A certificate as to the amounts of such increased assessment,
submitted to PM Companies, such Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(c) In the event that after the date hereof the implementation of or
any change in any law or regulation, or any guideline or directive (whether or
not having the force of law) or the interpretation or administration thereof by
any central bank or other authority charged with the administration thereof,
imposes, modifies or deems applicable any capital adequacy or similar
requirement (including, without limitation, a request or requirement which
affects the manner in which any Lender allocates capital resources to its
commitments, including its obligations hereunder) and as a result thereof, in
the sole opinion of such Lender, the rate of return on such Lender's capital as
a consequence of its obligations hereunder is reduced to a level below that
which such Lender could have achieved but for such circumstances, but reduced
to the extent that Borrowings are outstanding from time to time, then in each
such case upon demand from time to time PM Companies shall pay to such Lender
such additional amount or amounts as shall compensate such Lender for such
reduction in rate of return, provided that, in the case of each Lender, such
additional amount or amounts shall not exceed 0.15 of 1% per annum on such
Lender's Commitment. A certificate of such Lender as to any such additional
amount or amounts shall be conclusive and binding for all purposes, absent
manifest error. Except as provided below, in determining any such amount or
amounts each Lender may use any reasonable averaging and attribution methods.
Notwithstanding the foregoing, each Lender shall take all
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reasonable actions to avoid the imposition of, or reduce the amounts of, such
increased costs, provided that such actions, in the reasonable judgment of such
Lender, will not be otherwise disadvantageous to such Lender, and, to the
extent possible, each Lender will calculate such increased costs based upon the
capital requirements for its commitment hereunder and not upon the average or
general capital requirements imposed upon such Lender.
SECTION 2.12. Payments and Computations. (a) PM Companies and each
Borrower shall make each payment hereunder not later than 11:00 A.M. (New York
City time) on the day when due in U.S. dollars to the Agent at its address
referred to in Section 10.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.02(c), 2.03, 2.08, 2.10(b)(ii) or (c), 2.11, 2.13 or 10.04(b)) to the
Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the 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 in accordance with 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 10.07(d), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder and under the B Notes in respect of the interest
assigned thereby to the Lender 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 Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made to the Agent for the account of such
Lender when due hereunder, to charge from time to time against any or all of
such Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the 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 Adjusted CD Rate, the Eurodollar Rate
or the Federal Funds Rate and of fees shall be made by the Agent, and all
computations of interest pursuant to Section 2.08 shall be made by a Lender, 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
(or, in the case of Section 2.08, by a Lender) of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder 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 or fees, as the case may be; provided,
however, if such extension would
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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 any Borrower
prior to the date on which any payment is due from such Borrower to the Lenders
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such 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 date an amount equal to the amount then due
such Lender. If and to the extent that such 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.
SECTION 2.13. Taxes. (a) Any and all payments by each Borrower and PM
Companies hereunder shall be made, in accordance with Section 2.12, free and
clear of and without deductions for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, (i) in the case of each Lender and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof, (ii) in the case of each
Lender, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof, and (iii) in the case of each Lender and the Agent, taxes
imposed by the United States by means of withholding tax if and to the extent
that such taxes shall be in effect and shall be applicable on the date hereof,
to payments to be made to such Lender's Applicable Lending Office or to the
Agent (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower or PM Companies shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender or the Agent, (A) 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, (B) such Borrower and PM Companies shall make such deductions and (C)
such Borrower and PM Companies shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Borrower and PM Companies agrees to 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
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
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(c) Each Borrower and PM Companies 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) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be made within
30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower and PM Companies will furnish to the Agent, at its address referred to
in Section 10.02, the original or a certified copy of a receipt evidencing
payment thereof by such Borrower or PM Companies.
(e) Without prejudice to the survival of any other agreement of any
Borrower or PM Companies hereunder, the agreements and obligations of each
Borrower and PM Companies contained in this Section 2.13 shall survive the
payment in full of principal and interest hereunder.
(f) Prior to the date of the initial Borrowing hereunder, and from
time to time thereafter if requested by any Borrower, PM Companies or the
Agent, each Lender organized under the laws of a jurisdiction outside the
United States shall provide the Agent, PM Companies and such Borrower with the
forms prescribed by the Internal Revenue Service of the United States
certifying such Lender's exemption from United States withholding taxes with
respect to all payments to be made to such Lender hereunder. Unless the
Borrower, PM Companies and the Agent have received forms or other documents
satisfactory to them indicating that payments hereunder are not subject to
United States withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty, such Borrower, PM Companies or the Agent shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender organized under the laws of a jurisdiction
outside the United States.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.13 shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office so as to eliminate the amount of any such costs or
additional amounts which may thereafter accrue; provided that no such change
shall be made if, in the reasonable judgment of such Lender, such change would
be disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.02(c),
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2.08, 2.10(b)(ii) or (c), 2.11, 2.13 or 10.04(b)) 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 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 Borrower
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 setoff) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each A Advance made
to such Borrower owing to such Lender from time to time, including the amounts
of principal thereof and interest thereon payable and paid to such Lender from
time to time hereunder.
(b) The Register maintained by the Agent pursuant to Section 10.07(c)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each A Borrowing made hereunder, the Type of Advances comprising such Borrowing
and the Interest Period applicable thereto, (ii) the terms of each Assignment
and Acceptance delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder, and (iv) the amount of any sum received by
the Agent from such Borrower hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be conclusive and binding
for all purposes, absent manifest error.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances. The obligation
of each Lender to make an Advance on the occasion of the initial Borrowing by
each Borrower is subject to the condition precedent that the Agent shall have
received on or before the day
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of such initial Borrowing the following, each dated such day, in form and
substance satisfactory to the Agent and in sufficient copies for each Lender:
(a) Certified copies of the resolutions of each of the Board of
Directors of such Borrower and (unless PM Companies is the Borrower) the
Guarantor approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, on behalf
of such company or companies with respect to this Agreement.
(b) A certificate of the Secretary or an Assistant Secretary of each
of such Borrower and (unless PM Companies is the Borrower) the Guarantor
certifying the names and true signatures of the officers of such company
or companies authorized to sign this Agreement and the other documents to
be delivered on behalf of such company or companies hereunder.
(c) A favorable opinion of Hunton & Williams, counsel for PM
Companies, substantially in the form of Exhibit D hereto and as to such
other matters as any Lender through the Agent may reasonably request.
(d) A favorable opinion of Shearman & Sterling, special counsel for
the Agent, substantially in the form of Exhibit E hereto.
(e) A certificate of the chief financial officer of PM Companies
certifying that as of June 30, 1995 (i) the aggregate amount of Debt,
payment of which is secured by any lien, security interest or other charge
or encumbrance referred to in clause (iii) of Section 5.02(a) hereof, does
not exceed $400,000,000 and (ii) the aggregate amount of Debt included in
clause (i) of this subsection (e), payment of which is secured by any
lien, security interest or other charge or encumbrance referred to in
clause (iv) of Section 5.02(a), does not exceed $200,000,000.
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, before and after
giving effect thereto and to the application of the proceeds therefrom (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 named therein of the
proceeds of such A Borrowing shall constitute a representation and warranty by
such Borrower and (unless PM Companies is the Borrower) the Guarantor that on
the date of such A Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom, such statements are true):
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(i) The representations and warranties contained in Section 4.01
(excluding those contained in subsections (e) and (f) thereof) are correct
on and as of the date of such Borrowing as though made on and as of such
date;
(ii) No event has occurred and is continuing, or would result from
such A Borrowing, which constitutes an Event of Default; and
(iii) If such A Borrowing is in an aggregate principal amount equal
to or greater than $500,000,000 and is being made in connection with any
purchase of shares of such Borrower's or the Guarantor's capital stock or
the capital stock of any other Person, or any purchase of all or
substantially all of the assets of any Person (whether in one transaction
or a series of transactions) or any transaction of the type referred to in
Section 5.02(b), the statements in (i) and (ii) above shall also be true
on a pro forma basis as if such transaction or purchase shall have been
completed;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Condition Precedent to Certain A Borrowings. The
obligation of each Lender to make that portion of an A Advance on the occasion
of any A Borrowing (including the initial A Borrowing) which would increase the
aggregate outstanding amount of A Advances owing to such Lender over the
aggregate amount of such A Advances outstanding immediately prior to the making
of such A Advance shall be subject to the further condition precedent that on
the date of such A Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom, the following statement shall be true
(and each of the giving of the applicable Notice of A Borrowing and the
acceptance by the Borrower named therein of the proceeds of such A Borrowing
shall constitute a representation and warranty by such Borrower and (unless PM
Companies is the Borrower) the Guarantor that on the date of such A Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom, such statement is true): no event has occurred and is continuing, or
would result from such A Borrowing, which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
SECTION 3.04. 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) at least two
Business Days before the date of such B Borrowing in the case of a B Borrowing
under subsection (a)(i)(A) of Section 2.03 and at least four Business Days
before the date of such B Borrowing in the case of a B Borrowing under
subsection (a)(i)(B) of Section 2.03, the Agent shall have received the written
confirmatory Notice of B Borrowing with respect thereto, (ii) on or before the
date of such B
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Borrowing, but prior to such B Borrowing, the Agent shall have received a B
Note of the Borrower thereof 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, in a principal amount equal to the principal amount to be evidenced
thereby and otherwise on such terms as were agreed to for such B Advance by
such Borrower and such Lender in accordance with Section 2.03, and (iii) on the
date of such B Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom, the following statements shall be true
(and each of the giving of the applicable Notice of B Borrowing and the
acceptance by such Borrower of the proceeds of such B Borrowing shall
constitute a representation and warranty by such Borrower and (unless PM
Companies is the Borrower) the Guarantor that on the date of such B Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom, 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 as though made on and as
of such date; and
(b) No event has occurred and is continuing, or would result from
such B Borrowing, 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.
SECTION 3.05. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall not become effective until:
(a) The Agent shall have received on or before the date of
effectiveness a letter from PM Companies dated on or before such day,
terminating in whole the commitments of the banks parties to the Loan and
Guaranty Agreement dated as of December 17, 1993 (the "1993 Loan
Agreement") among PM Companies, the banks named therein and Citibank, as
agent, and each of the Banks that is a party to the 1993 Loan Agreement
hereby waives, upon execution of this Agreement, the five Business Days'
notice required by Section 2.05(a) of the 1993 Loan Agreement relating to
the termination of the commitments under the 1993 Loan Agreement; and
(b) PM Companies and its subsidiaries shall have satisfied all of
their respective obligations under the 1993 Loan Agreement including,
without limitation, the payment of all fees under such agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of PM Companies. PM
Companies represents and warrants as follows:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of Virginia.
(b) The execution, delivery and performance of this Agreement and the
B Notes (including the guaranties hereunder and under the B Notes) are
within its corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) its charter or by-laws or (ii)
any law, rule, regulation or order of any court or governmental agency or
any contractual restriction binding on or affecting it.
(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 it of this Agreement or
the B Notes (including the guaranties hereunder and under the B Notes).
(d) This Agreement (including the guaranty hereunder) is, and each of
the B Notes (including the guaranties under the B Notes) when delivered
hereunder will be, a legal, valid and binding obligation of PM Companies
enforceable against PM Companies in accordance with its terms, 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 in equity or at law).
(e) The consolidated balance sheet of PM Companies and its
consolidated subsidiaries as at June 30, 1995 and the consolidated
statements of earnings of PM Companies and its consolidated subsidiaries
for the six months then ended fairly present, subject to year-end audit
adjustments, the consolidated financial condition of PM Companies and its
consolidated subsidiaries as at such date and the consolidated results of
the operations of PM Companies and its consolidated subsidiaries for the
period ended on such date, all in accordance with generally accepted
accounting principles consistently applied, and, except as disclosed in PM
Companies' quarterly report on Form 10-Q for the quarter ended June 30,
1995, since June 30, 1995, there has been no material adverse change in
such condition or operations.
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(f) Except as disclosed in PM Companies' quarterly report on Form
10-Q for the quarter ended June 30, 1995, and its annual report on Form
10-K for the year ended December 31, 1994, there is no pending or
threatened action or proceeding affecting it or any of its subsidiaries
before any court, governmental agency or arbitrator, which may materially
adversely affect the financial condition or operations of PM Companies and
its subsidiaries taken as a whole or which purports to affect the
legality, validity or enforceability of this Agreement (including the
guaranties hereunder and under the B Notes).
(g) It owns directly or indirectly 100% of the capital stock of each
other Borrower and 100% of the capital stock of Philip Morris.
(h) No ERISA Event has occurred nor is any ERISA Event reasonably
expected to occur with respect to any Major Plan.
(i) Schedule B (Actuarial Information) to the most recently completed
annual report (Form 5500 Series) with respect to each Plan which is a
Major Plan or a Significant Plan, copies of which have been filed with the
Internal Revenue Service and furnished to each Bank, is complete and
accurate and fairly presents the funding status of such Plan, and since
the date of such Schedule B there has been no material adverse change in
such funding status; provided that no change in the funding status of any
such Plan shall be deemed to be materially adverse from that disclosed on
such Schedule B unless there is an Insufficiency which, when aggregated
with the Insufficiency of each other Plan, exceeds $100,000,000.
(j) Neither any Borrower nor PM Companies nor any of their ERISA
Affiliates has incurred or reasonably expects to incur any Withdrawal
Liability under ERISA to any Multiemployer Plan requiring payments to such
Multiemployer Plan in an annual amount which, when aggregated together
with all other payments required to be made to Multiemployer Plans as a
result of Withdrawal Liabilities incurred or reasonably expected to be
incurred by the Borrowers, PM Companies and their ERISA Affiliates,
exceeds $25,000,000.
ARTICLE V
COVENANTS OF PM COMPANIES
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, PM Companies
will, unless the Majority Lenders shall otherwise consent in writing:
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(a) Compliance with Laws, Etc. Comply, and cause each Major
Subsidiary to comply, in all material respects with all applicable laws,
rules, regulations and orders (such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent contested in good faith), noncompliance with which
would materially adversely affect its business or credit.
(b) Maintenance of Ratio of Net Income Before Tax to Fixed Charges.
Maintain a ratio of aggregate consolidated Net Income Before Tax for the
four most recent fiscal quarters for which consolidated statements of
earnings have been delivered pursuant to Section 5.01(c)(i) or (ii) hereof
to consolidated Fixed Charges for such four most recent fiscal quarters of
not less than 2.5 to 1.0.
(c) Reporting Requirements. Furnish to the Lenders:
(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 PM
Companies, a consolidated balance sheet of PM Companies and its
consolidated subsidiaries as of the end of such quarter and
consolidated statements of earnings of PM Companies and its
consolidated subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
certified by the chief financial officer of PM Companies;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of PM Companies, a copy of the financial
statements for such year for PM Companies and its consolidated
subsidiaries, audited by Coopers & Lybrand L.L.P. (or other
independent accountants which, as of the date of this Agreement, are
one of the "big six" accounting firms);
(iii) 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 PM Companies setting
forth details of such Event of Default or event and the action which
PM Companies has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports which PM Companies sends to any of its shareholders, and
copies of all periodic reports on Forms 10-K, 10-Q and 8-K (or any
successor forms adopted by the Securities and Exchange Commission)
which PM Companies files with the Securities and Exchange Commission;
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(v) as soon as possible and in any event (A) within 30 days
after any Borrower or PM Companies or any of their ERISA Affiliates
knows or has reason to know that any ERISA Event described in clause
(i) of the definition of ERISA Event with respect to any Major Plan
or any Significant Plan (other than a Significant Plan that has no
Insufficiency) has occurred and (B) within 10 days after any Borrower
or PM Companies or any of their ERISA Affiliates knows or has reason
to know that any other ERISA Event with respect to any Major Plan or
any Significant Plan has occurred, a statement of the chief financial
officer of PM Companies describing such ERISA Event and the action,
if any, which such Borrower or PM Companies or such ERISA Affiliate
proposes to take with respect thereto;
(vi) promptly and in any event within two Business Days after
receipt thereof by any Borrower or PM Companies or any of their ERISA
Affiliates from the PBGC, copies of each notice received by such
Borrower or PM Companies or any such ERISA Affiliate of the PBGC's
intention to terminate any Plan or to have a trustee appointed to
administer any Plan;
(vii) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Major Plan and each Significant Plan;
(viii) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and
information (to the extent they have not previously been furnished to
the Lenders).
(ix) promptly and in any event within five Business Days after
receipt thereof by any Borrower or PM Companies or any of their ERISA
Affiliates from a Multiemployer Plan sponsor, a copy of each notice
received by such Borrower or PM Companies or any of their ERISA
Affiliates concerning the imposition of Withdrawal Liability where
the aggregate annual payments for such Withdrawal Liability exceeds
$10,000,000;
(x) promptly and in any event within 60 days after the date on
which a Plan which is not a Major Plan or a Significant Plan on the
date hereof becomes a Major Plan or Significant Plan, copies of each
Schedule B (Actuarial Information) to the most recent Annual Report
(Form 5500 Series) filed with the Internal Revenue Service with
respect to such Plan, together with a statement of the chief
financial officer of PM Companies describing any
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material adverse change in the funding status of such Plan since
the date of such Schedule B; and
(xi) such other information respecting the condition or
operations, financial or otherwise, of PM Companies or any Major
Subsidiary as any Lender through the Agent may from time to time
reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, PM Companies will
not, without the written consent of the Majority Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any Major
Subsidiary to create or suffer to exist, any lien, security interest or
other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any Major Subsidiary to
assign, any right to receive income, in each case to secure or provide for
the payment of any Debt of any Person, other than (i) purchase money liens
or purchase money security interests upon or in any property acquired or
held by it or any Major Subsidiary in the ordinary course of business to
secure the purchase price of such property or to secure indebtedness
incurred solely for the purpose of financing the acquisition of such
property, (ii) liens or security interests existing on such property at
the time of its acquisition (other than any such lien or security interest
created in contemplation of such acquisition), (iii) liens or security
interests existing on the date hereof securing Debt, (iv) liens or
security interests on property financed through the issuance of industrial
revenue bonds in favor of the holders of such bonds or any agent or
trustee therefor, (v) liens or security interests existing on property of
any Person acquired by it or any Major Subsidiary, (vi) liens or security
interests securing Debt in an aggregate amount not in excess of 5% of PM
Companies' Consolidated Tangible Assets, or (vii) liens or security
interests upon or with respect to "margin stock" as that term is defined
in Regulation U issued by the Board of Governors of the Federal Reserve
System.
(b) 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, or acquire all or substantially all
of the assets of, any Person, or permit any subsidiary directly or
indirectly owned by it to do so, unless, immediately after giving effect
thereto, no Event of Default or event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default would exist
and, in the case of any merger or consolidation to which it is a party, it
is the surviving corporation and, in the case of any merger or
consolidation to which a Borrower other than PM Companies is a party, the
corporation formed by such consolidation or into which
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such Borrower shall be merged shall be a corporation organized and
existing under the laws of the United States of America or any State
thereof, or the District of Columbia, and shall assume such Borrower's
obligations under this Agreement by the execution and delivery of an
instrument in form and substance satisfactory to the Majority Lenders and
a Notice of Acceptance.
(c) Compliance with ERISA. Permit to exist any occurrence of any
Reportable Event (as defined in Title IV of ERISA), or any other event or
condition, which presents a material risk of termination by the PBGC of
any Major Plan.
(d) Maintenance of Ownership of Philip Morris. Sell or otherwise
dispose of any shares of capital stock of Philip Morris.
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) Any Borrower or PM Companies shall fail to pay any principal of,
or interest on, any Advance, or PM Companies shall fail to pay any fees
payable under Section 2.04, when the same become due and payable; or
(b) Any representation or warranty made or deemed to have been made
by any Borrower or PM Companies herein or by any Borrower or PM Companies
(or any of their respective officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made or
deemed to have been made; or
(c) Any Borrower or PM Companies shall fail to perform or observe (i)
any term, covenant or agreement contained in Section 5.01(b) or 5.02, or
(ii) any other term, covenant or agreement contained in this Agreement on
its part to be performed or observed if such failure shall remain
unremedied for 10 days after written notice thereof shall have been given
to PM Companies by the Agent or any Lender; or
(d) Any Borrower or PM Companies or any Major Subsidiary 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 arising under this Agreement) of such Borrower or PM
Companies or such Major Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled
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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 unless
adequate provision for any such payment has been made in form and
substance satisfactory to the Majority Lenders; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt which is outstanding in a principal amount of at least
$100,000,000 in the aggregate 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 to accelerate, or to permit the
acceleration of, the maturity of such Debt (other than any such Debt owed
to a Lender or an affiliate of a Lender if such event or condition shall
relate solely to a restriction on margin stock, as that term is defined in
Regulation U issued by the Board of Governors of the Federal Reserve
System) unless adequate provision for the payment of such Debt has been
made in form and substance satisfactory to the Majority Lenders; or any
Debt of any Borrower or PM Companies or any Major Subsidiary which is
outstanding in a principal amount of at least $50,000,000 in the aggregate
(but excluding Debt arising under this Agreement) shall be declared to be
due and payable, or required to be prepaid (other than by a scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof unless adequate
provision for the payment of such Debt has been made in form and substance
satisfactory to the Majority Lenders; or
(e) Any Borrower or PM Companies or any Major Subsidiary 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 any Borrower or PM Companies or any Major
Subsidiary 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, 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 or unstayed for a period of 45 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against it 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 any Borrower or PM Companies or any Major
Subsidiary shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
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(f) Any judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against any Borrower or PM Companies or any
Major Subsidiary 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 10 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) Any ERISA Event with respect to Plan (a "Subject ERISA Event")
shall have occurred and the Insufficiency of any such Plan, when
aggregated with the Insufficiencies (determined as of the date of the
Subject ERISA Event) of all other Plans, if any, which were Plans on or
after the date hereof and with respect to which an ERISA Event has
occurred, exceeds $500,000,000; or
(h) Any Borrower or PM Companies or any of their ERISA Affiliates
shall have made a complete or partial withdrawal from a Multiemployer Plan
and the plan sponsor of such Multiemployer Plan shall have notified such
withdrawing employer that such employer has incurred a Withdrawal
Liability in an annual amount which, when aggregated together with all
other payments required to be made to Multiemployer Plans whose plan
sponsors have notified such Borrower, PM Companies or any of their ERISA
Affiliates that a Withdrawal Liability has been incurred by such Borrower,
PM Companies or any of their ERISA Affiliates under such Multiemployer
Plans, exceeds $25,000,000; or
(i) The guaranty provided by PM Companies under Article VIII hereof
or any guaranty endorsed by PM Companies on any B Note after delivery
thereof under Section 3.04 shall for any reason cease to be valid and
binding on PM Companies or PM Companies 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 Majority Lenders, by notice to PM Companies and the
Borrowers, 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 Majority Lenders, by notice to PM
Companies and the Borrowers, declare all the Advances then outstanding, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances then outstanding, 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 Borrowers; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
any Borrower, PM Companies or any Major Subsidiary under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances then outstanding, all such interest and all
such amounts
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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 Borrowers.
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 under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Debt resulting from the
Advances), 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 Majority Lenders, and such instructions shall be binding
upon all Lenders; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which 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 PM Companies or any Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. 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 wilful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 10.07; (ii) may consult with legal counsel (including counsel for
the Borrowers and PM Companies), independent 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 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 any
Borrower or PM Companies or to inspect the property (including the books and
records) of any Borrower or PM Companies; (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
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(which may be by telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to any Commitment
of, or any Advance made by, Citibank or any of its affiliates, Citibank 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 in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, any Borrower, PM Companies, any of their respective
subsidiaries and any Person who may do business with or own securities of any
Borrower or PM Companies or any such subsidiary, all as if Citibank 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 PM Companies or any Borrower), ratably
according to the respective principal amounts of Advances then owing to each of
them (or if no such Advances are at the time outstanding or if any such
Advances are then owing to Persons which 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 which
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 wilful 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 and expenses)
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 PM Companies or any Borrower.
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SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and PM Companies and may be
removed at any time with or without cause by the Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a Lender having and
acting through a New York office, or 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 $500,000,000 which is not a Lender. 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, 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
GUARANTY
SECTION 8.01. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees (the undertaking of the Guarantor contained in this
Article VIII being the "Guaranty") the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of each
Borrower now or hereafter existing under this Agreement (other than such
obligations under Section 2.03(d) and (e) which are covered by the guaranty
under the B Notes), whether for principal, interest, fees, expenses or
otherwise (such obligations being the "Obligations"), and any and all expenses
(including counsel fees and expenses) incurred by the Agent or the Lenders in
enforcing any rights under the Guaranty.
SECTION 8.02. Guaranty Absolute. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, 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
Agent or the Lenders with respect thereto. The liability of the Guarantor under
this Guaranty shall be absolute and unconditional irrespective of:
(i) any lack of validity, enforceability or genuineness of any
provision of this Agreement or any other agreement or instrument relating
thereto;
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(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 this Agreement;
(iii) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, a Borrower or the 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 a Borrower or otherwise, all as though such
payment had not been made.
SECTION 8.03. Waivers. (a) The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and 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 a
Borrower or any other Person or any collateral.
(b) The Guarantor hereby irrevocably waives any claims or other
rights that it may now or hereafter acquire against any Borrower that arise
from the existence, payment, performance or enforcement of the Guarantor's
obligations under this Guaranty or this Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Agent or any Lender against such Borrower or any collateral, 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
such Borrower, 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, remedy or
right. If any amount shall be paid to the Guarantor in violation of the
preceding sentence at any time prior to the later of the cash payment in full
of the Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be 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 to the Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of this
Agreement and this Guaranty, or to be held as collateral for any Obligations or
other amounts payable under this Guaranty thereafter arising. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and this Guaranty and
that the waiver set forth in this subsection is knowingly made in contemplation
of such benefits.
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SECTION 8.04. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by the Guarantor hereunder shall be made in accordance with
Section 2.12 (concerning payments) of this Agreement free and clear of and
without deduction for any and all present or future Taxes. If the Guarantor
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder 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)
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 Guarantor
shall make such deductions and (iii) the Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Guarantor agrees to pay any present or future
Other Taxes which arise from any payment made under this Guaranty or from the
execution, delivery or registration of, or otherwise with respect to, this
Guaranty.
(c) The Guarantor 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) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor will furnish to the Agent, at its address referred to in Section
10.02, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Without prejudice to the survival of any other agreement of the
Guarantor hereunder, the agreements and obligations of the Guarantor contained
in this Section 8.04 shall survive the payment in full of the principal of and
interest on the Advances.
(f) Unless in accordance with Section 2.13(f) a Borrower, PM
Companies and the Agent have received forms and other documents satisfactory to
them indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Guarantor or the Agent shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United States.
SECTION 8.05. No Waiver; Remedies. No failure on the part of the
Agent or any Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
45
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 8.06. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until payment in full
(after the Termination Date) of the Obligations and all other amounts payable
under this Guaranty, (ii) be binding upon the Guarantor, its successors and
assigns, and (iii) inure to the benefit of and be enforceable by the Lenders,
the Agents and their respective successors, transferees and assigns.
ARTICLE IX
SUBSIDIARY BORROWER
SECTION 9.01. Subsidiary Borrower. Any domestic or foreign subsidiary
of the Guarantor shall have the right to become a "Borrower" hereunder, and to
borrow any unused Commitments under this Agreement subject to the terms and
conditions hereof applicable to a Borrower and to the following additional
conditions:
(a) PM Companies shall deliver a notice in the form of Exhibit F
hereto (a "Notice of Acceptance") signed by such subsidiary and
countersigned by the Guarantor to the Agent stating that such subsidiary
desires to become a "Borrower" under this Agreement and agrees to be bound
by the terms hereof. From the time of receipt of such Notice of Acceptance
by the Agent, such subsidiary shall be a "Borrower" hereunder with all of
the rights and obligations of a Borrower hereunder. No Notice of
Acceptance relating to a subsidiary may be revoked as to amounts owed by
such subsidiary to the Lenders under this Agreement or when a Notice of
Borrowing naming such subsidiary has been given by PM Companies and is
effective.
(b) Each Notice of Acceptance shall be accompanied by an opinion of
counsel for PM Companies to the effect of clause (iv) below and shall
contain the following representations and warranties with respect to such
subsidiary:
(i) The subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation.
(ii) The execution, delivery and performance by the subsidiary
of any B Notes executed and delivered and to be executed and
delivered by it, this Agreement and such Notice of Acceptance are
within the subsidiary's corporate powers, have been duly authorized
by all necessary corporate action,
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
46
and do not contravene (i) the subsidiary's charter or by-laws or
(ii) any law, rule, regulation or order of any court or governmental
agency or any contractual restriction binding on or affecting the
subsidiary.
(iii) 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 subsidiary of any B Notes executed and delivered and to be
executed and delivered by it, this Agreement or such Notice of
Acceptance.
(iv) This Agreement is, and any B Notes of such subsidiary when
delivered under this Agreement will be, the legal, valid and binding
obligation of the subsidiary enforceable against the subsidiary in
accordance with their respective terms, 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 in equity or at law).
(v) There is no pending or threatened action or proceeding
affecting the subsidiary or any of its subsidiaries before any court,
governmental agency or arbitrator which purports to affect the
legality, validity or enforceability of this Agreement or any B Note.
(vi) PM Companies owns directly or indirectly 100% of the
capital stock of the subsidiary.
(c) For the purposes of Sections 3.02, 3.03 and 3.04, each of
the representations and warranties in the foregoing Section 9.01(b)
shall be deemed to be a representation and warranty contained in
Section 4.01.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any Borrower or
the Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Majority 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 (if
and to
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
47
the extent that the Borrowing which is the subject of such waiver would involve
an increase in the aggregate outstanding amount of Advances over the aggregate
amount of Advances outstanding immediately prior to such Borrowing) or 3.03,
(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
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the A Advances or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of A Advances, or the
number of Lenders which shall be required for the Lenders or any of them to
take any action hereunder, (f) release the Guarantor from any of its
obligations under Article VIII or (g) amend this Section 10.01; provided
further that no waiver of the conditions specified in Section 3.04 in
connection with any B Borrowing shall be effective unless consented to by all
Lenders making B Advances as part of such B Borrowing; and 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 A Advance.
SECTION 10.02. Notices, Etc. Except as provided in Section 2.03(a) or
(g), all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telecopy, telex or cable communication) and
mailed, telegraphed, telecopied, telexed, cabled or delivered, if to any
Borrower, at its address at c/o Philip Morris Companies Inc., 120 Park Avenue,
New York, New York 10017, Attention: Treasurer; if to the Guarantor, at its
address at 120 Park Avenue, New York, New York 10017, Attention: Secretary; if
to any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; 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 One Court Square, Long Island
City, New York 11120, Attention: John Sahr; or, as to each party, at such other
address as shall be designated by such party in a written notice to PM
Companies or the Agent and, in the case of any such notice by any Borrower, PM
Companies or the Agent, to each other party hereto. All such notices and
communications shall, when mailed, telegraphed, telecopied, telexed or cabled,
be effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to the
Agent pursuant to Article II or VII shall not be effective until received by
the Agent.
SECTION 10.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right
hereunder 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.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
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SECTION 10.04. Costs, Expenses and Taxes. (a) PM Companies agrees to
pay on demand all costs and expenses in connection with the preparation,
execution, delivery, administration (excluding any cost or expenses for
administration related to the Agent's overhead), modification and amendment of
this Agreement and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under this Agreement, and all costs and
expenses of the Lenders and the Agent, if any (including, without limitation,
reasonable counsel fees and expenses of the Lenders and the Agent), in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder.
(b) If any payment of principal of any Adjusted CD Rate Advance or
Eurodollar Rate Advance is made other than on the last day of the Interest
Period for such Advance, as a result of a payment pursuant to Section 2.10,
acceleration of the maturity of the Advances pursuant to Section 6.01, an
assignment made as a result of a demand by PM Companies pursuant to Section
10.07(a) or for any other reason, PM Companies 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 (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender to fund or maintain such
Advance. Without prejudice to the survival of any other agreement of any
Borrower or PM Companies hereunder, the agreements and obligations of each
Borrower and PM Companies contained in Section 2.02(c), 2.08, 2.10(b)(ii) or
(c), 2.11 or this Section 10.04(b) shall survive the payment in full of
principal and interest hereunder.
(c) Each Borrower and the Guarantor jointly and severally agree to
indemnify and hold harmless the Agent and each Lender and each of their
respective affiliates, control persons, directors, officers, employees,
attorneys and agents (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel) which may be incurred
by or asserted against any Indemnified Party, in each case in connection with
or arising out of, or in connection with the preparation for or defense of, any
investigation, litigation, or proceeding (i) related to any transaction or
proposed transaction (whether or not consummated) in which any proceeds of any
Borrowing are applied or proposed to be applied, directly or indirectly, by any
Borrower, whether or not such Indemnified Party is a party to such transaction
or (ii) related to any Borrower's or the Guarantor's entering into this
Agreement, or to any actions or omissions of any Borrower or the Guarantor, any
of their respective subsidiaries or affiliates or any of its or their
respective officers, directors, employees or agents in connection therewith, in
each case
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
49
whether or not an Indemnified Party is a party thereto and whether or not such
investigation, litigation or proceeding is brought by the Guarantor or any
Borrower or any other Person; provided, however, that neither any Borrower nor
the Guarantor shall be required to indemnify any such Indemnified Party from or
against any portion of such claims, damages, losses, liabilities or expenses
that is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or wilful misconduct of
such Indemnified Party.
SECTION 10.05. Right of Setoff. 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 Advances due and payable pursuant to the provisions of Section
6.01, 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 any Borrower or the Guarantor against any and all of the obligations
of such Borrower or the Guarantor now or hereafter existing under this
Agreement, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
Each Lender agrees promptly to notify the appropriate Borrower or the
Guarantor, as the case may be, after any such setoff and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which such Lender may have.
SECTION 10.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by PM Companies 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 each Borrower, the
Guarantor, the Agent and each Lender and their respective successors and
assigns, except that neither any Borrower nor the Guarantor shall have the
right to assign its rights hereunder or any interest herein without prior
written consent of the Lenders.
SECTION 10.07. Assignments and Participations. (a) Each Lender may
and, if demanded by PM Companies upon at least 5 Business Days' notice to such
Lender and the Agent, will 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 and the A Advances owing
to it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's rights
and obligations under this Agreement (other than, except in the case of an
assignment made as a result of a demand by PM Companies pursuant to this
Section 10.07(a), any B Advances owing to such Bank or any B Notes held by it),
(ii) the amount of
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107900.5/NYL3
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the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $25,000,000 (subject
to reduction at the sole discretion of PM Companies ) and shall be an integral
multiple of $1,000,000, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by PM
Companies pursuant to this Section 10.07(a) shall be arranged by PM Companies
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments which together cover all of
the rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand
by PM Companies pursuant to this Section 10.07(a) unless and until such Lender
shall have received one or more payments from either the Borrowers to which it
has outstanding Advances or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the
Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) 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, together with a processing and
recordation fee of $3,000, provided that, if such assignment is made as a
result of a demand by PM Companies under this Section 10.07(a), PM Companies
shall pay or cause to be paid such $3,000 fee; provided further that nothing in
this Section 10.07 shall prevent or prohibit any Lender from pledging its
Advances hereunder or any B Notes held by it to a Federal Reserve Bank in
support of borrowings by such Lender from such Federal Reserve Bank. 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 (other than those provided under Section 10.04) 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
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
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furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or PM Companies or the performance or observance by
any Borrower or PM Companies of any of their respective 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 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section
10.02 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 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, and PM
Companies, the Borrowers, 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 by PM Companies or
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 representing that it is an Eligible Assignee,
the Agent shall, if such Assignment and Acceptance has been completed 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 PM Companies.
(e) 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
and the Advances owing to it and any B Note or Notes held by it); provided,
however, that (i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment to PM Companies 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 B Note for all purposes of this Agreement, and
(iv) PM Companies, the other Borrowers, the
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107900.5/NYL3
52
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to PM Companies or any Borrower furnished
to such Lender by or on behalf of PM Companies or any 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 PM Companies received by it from such Lender.
SECTION 10.08. Governing Law. This Agreement and any B Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 10.09. 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.
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.
PHILIP MORRIS COMPANIES INC.
By:
-------------------------
George R. Lewis
Vice President and
Treasurer
CITIBANK, N.A., as Agent
By:
-------------------------
Paolo de Alessandrini
Managing Director
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
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THE BANKS
Commitment:
U.S. $416,666,666.67 CITIBANK, N.A.
By:
-------------------------
Paolo de Alessandrini
Managing Director
U.S. $290,000,000.00 ABN AMRO BANK NV, NEW YORK
BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $290,000,000.00 CHEMICAL BANK
By:
-------------------------
Title:
U.S. $290,000,000.00 CREDIT SUISSE
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
54
U.S. $290,000,000.00 THE DAI-ICHI KANGYO BANK,
LTD. - NEW YORK BRANCH
By:
-------------------------
Title:
U.S. $290,000,000.00 DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN
ISLAND BRANCHES
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $290,000,000.00 THE FUJI BANK, LIMITED
By:
-------------------------
Title:
U.S. $290,000,000.00 SANWA BANK LIMITED
By:
-------------------------
Title:
U.S. $290,000,000.00 SOCIETE GENERALE
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
55
U.S. $193,333,333.33 BANQUE NATIONALE DE PARIS
NEW YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
BANQUE NATIONALE DE PARIS
GEORGETOWN BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $193,333,333.33 MIDLAND BANK PLC
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
56
U.S. $193,333,333.33 THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
By:
-------------------------
Title:
U.S. $193,333,333.33 NATIONSBANK, N.A.
By:
-------------------------
Title:
U.S. $193,333,333.33 THE SAKURA BANK, LTD.
By:
-------------------------
Title:
U.S. $193,333,333.33 THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By:
-------------------------
Title:
U.S. $193,333,333.33 THE TOKAI BANK, LIMITED
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
57
U.S. $193,333,333.33 UNION BANK OF SWITZERLAND
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $176,666,666.67 DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $140,000,000.00 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By:
-------------------------
Title:
U.S. $116,666,666.67 THE BANK OF TOKYO TRUST
CO.
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
58
U.S. $110,000,000.00 ROYAL BANK OF CANADA
By:
-------------------------
Title:
U.S. $110,000,000.00 THE TORONTO-DOMINION BANK
By:
-------------------------
Title:
U.S. $100,000,000.00 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND"
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 96,666,666.67 SWISS BANK CORPORATION,
NEW YORK AND CAYMAN
ISLANDS BRANCHES
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
59
U.S. $ 93,333,333.33 BANK OF AMERICA NT & SA
By:
-------------------------
Title:
U.S. $ 86,666,666.67 THE BANK OF NEW YORK
By:
-------------------------
Title:
U.S. $ 83,333,333.33 CANADIAN IMPERIAL BANK OF
COMMERCE
By:
-------------------------
Title:
U.S. $ 83,333,333.33 BAYERISCHE HYPOTHEKEN - UND
WECHSEL-BANK,
AKTIENGESSELSCHAFT NEW
YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
60
U.S. $ 76,666,666.67 BANCO BILBAO VIZCAYA, S.A.
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 73,333,333.33 DAIWA BANK LIMITED
By:
-------------------------
Title:
U.S. $ 70,000,000.00 BANCA COMMERCIALE
ITALIANA-NEW YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 70,000,000.00 BANCA NAZIONALE DEL LAVORO
S.P.A. - NEW YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
61
U.S. $ 70,000,000.00 BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN
ISLANDS BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 70,000,000.00 DEUTSCHE
GENOSSENSCHAFTSBANK
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 70,000,000.00 FIRST INTERSTATE BANK OF
CALIFORNIA
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
62
U.S. $ 70,000,000.00 ISTITUTO BANCARIO SAN
PAOLO DI TORINO S.P.A.
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 70,000,000.00 WACHOVIA BANK OF GEORGIA,
N.A.
By:
-------------------------
Title:
U.S. $ 66,666,666.67 NATIONAL AUSTRALIA BANK
LIMITED
By:
-------------------------
Title:
U.S. $ 63,333,333.33 BANQUE PARIBAS
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
63
U.S. $ 63,333,333.33 NORDDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK
BRANCH AND/OR CAYMAN
ISLAND BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 60,000,000.00 THE CHASE MANHATTAN BANK,
N.A.
By:
-------------------------
Title:
U.S. $ 53,333,333.33 BANCA DI ROMA, NEW YORK
BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
64
U.S. $ 53,333,333.33 BANCA POPOLARE DI MILANO,
NEW YORK BRANCH
By:
-------------------------
Title: Anthony Franco
By:
-------------------------
Title: Fulvio Montanari
U.S. $ 53,333,333.33 BANK BRUSSELS LAMBERT,
NEW YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 53,333,333.33 BERLINER BANK AG
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 53,333,333.33 CARIPLO - CASSA DI
RISPARMIO DELLE PROVINCIE
LOMBARDE S.P.A.
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
65
U.S. $ 53,333,333.33 DEN DANSKE BANK
AKTIESELSKAB
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 53,333,333.33 THE FIRST NATIONAL BANK OF
CHICAGO
By:
-------------------------
Title:
U.S. $ 53,333,333.33 LLOYDS BANK PLC.
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 53,333,333.33 MELLON BANK N.A.
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
66
U.S. $ 53,333,333.33 THE MITSUBISHI BANK, LIMITED
NEW YORK BRANCH
By:
-------------------------
Title:
U.S. $ 53,333,333.33 THE NORINCHUKIN BANK, NEW
YORK BRANCH
By:
-------------------------
Title:
U.S. $ 53,333,333.33 SHAWMUT BANK CONNECTICUT,
N.A.
By:
-------------------------
Title:
U.S. $ 53,333,333.33 SKANDINAVISKA ENSKILDA
BANKEN CORPORATION
By:
-------------------------
Title:
U.S. $ 53,333,333.33 SUNTRUST BANK, ATLANTA
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
67
U.S. $ 53,333,333.33 THE YASUDA TRUST AND
BANKING COMPANY, LIMITED
NEW YORK BRANCH
By:
-------------------------
Title:
U.S. $ 49,333,333.33 PNC BANK, NATIONAL
ASSOCIATION
By:
-------------------------
Title:
U.S. $ 40,000,000.00 CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By:
-------------------------
Title:
CREDIT LYONNAIS
NEW YORK BRANCH
By:
-------------------------
Title:
U.S. $ 40,000,000.00 THE FIRST NATIONAL BANK OF
BOSTON
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
68
U.S. $ 36,666,666.67 COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 36,666,666.67 INTERNATIONALE NEDERLANDEN
BANK N.V., DUBLIN BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 33,333,333.33 BANKERS TRUST COMPANY
By:
-------------------------
Title:
U.S. $ 33,333,333.33 FIRST BANK NATIONAL
ASSOCIATION
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
69
U.S. $ 33,333,333.33 FIRST HAWAIIAN BANK
By:
-------------------------
Title:
U.S. $ 33,333,333.33 GENERALE BANK, NEW YORK
BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 33,333,333.33 THE INDUSTRIAL BANK OF
JAPAN, LIMITED, NEW YORK
BRANCH
By:
-------------------------
Title:
U.S. $ 33,333,333.33 THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
70
U.S. $ 33,333,333.33 BANCA MONTE DEI PASCHI DI
SIENA, NEW YORK BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 33,333,333.33 THE SUMITOMO TRUST &
BANKING CO., LTD., LOS
ANGELES AGENCY
By:
-------------------------
Title:
U.S. $ 33,333,333.33 UNIBANK A/S, NEW YORK
BRANCH
By:
-------------------------
Title:
U.S. $ 33,333,333.33 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
By:
-------------------------
Title:
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
71
U.S. $ 26,666,666.67 THE BANK OF NOVA SCOTIA
By:
-------------------------
Title:
U.S. $ 23,333,333.33 THE MITSUI TRUST & BANKING
COMPANY LIMITED, NEW YORK
BRANCH
By:
-------------------------
Title:
U.S. $ 20,000,000.00 SVENSKA HANDELSBANKEN
By:
-------------------------
Title:
By:
-------------------------
Title:
U.S. $ 16,666,666.67 BANCO EXTERIOR DE ESPANA
By:
-------------------------
Title:
U.S. $ 16,666,666.67 BANK AUSTRIA
AKTIENGESELLSCHAFT
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
72
U.S. $ 16,666,666.67 CHRISTIANIA BANK NEW YORK
BRANCH
By:
-------------------------
Title:
U.S. $ 16,666,666.67 CREDIT COMMERCIAL DE FRANCE
By:
-------------------------
Title:
U.S. $ 16,666,666.67 CREDITANSTALT CORPORATE
FINANCE, INC.
By:
-------------------------
Title:
U.S. $ 16,666,666.67 DEN NORSKE BANK AS
By:
-------------------------
Title:
U.S. $ 16,666,666.67 THE NORTHERN TRUST COMPANY
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
73
U.S. $ 16,666,666.67 RAIFFEISEN ZENTRALBANK
OSTERREICH
AKTIENGESELLSCHAFT
By:
-------------------------
Title:
U.S. $ 16,666,666.67 STANDARD CHARTERED BANK
By:
-------------------------
Title:
U.S. $ 16,666,666.67 THE TOYO TRUST & BANKING CO.,
LTD.
By:
-------------------------
Title:
U.S. $ 16,000,000.00 CRESTAR BANK
By:
-------------------------
Title:
U.S. $ 13,333,333.33 STATE STREET BANK & TRUST CO.
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
74
U.S. $ 10,000,000.00 FIRSTAR BANK MILWAUKEE, N.A.
By:
-------------------------
Title:
U.S. $ 7,333,333.33 CENTRAL FIDELITY NATIONAL
BANK
By:
-------------------------
Title:
U.S. $ 7,333,333.33 M&I MARSHALL & ILSLEY BANK
By:
-------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
EXHIBIT A
FORM OF B NOTE
$_____________ Dated: ____________, 19__
FOR VALUE RECEIVED, the undersigned, [Name of Borrower] (the
"Borrower"), HEREBY PROMISES TO PAY to the order of [Name of Lender] (the
Lender"), on __________, 19__ the principal amount of ________________________
Dollars ($________________).
The Borrower promises to pay interest on the unpaid principal amount
thereof from the date hereof until such principal amount is repaid 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 Citibank, N.A. for the account of the Lender at the office
of Citibank, N.A. at One Court Square, Long Island City, New York 11120, United
States of America, in same day funds, free and clear of and without any
deduction, with respect to the payee named above, for any and all present and
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding any taxes imposed by the United
States by means of withholding tax if and to the extent that such taxes shall
be in effect and shall be applicable, on the date hereof, to payments to be
made by the Borrower hereon.
This Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the 5-Year Loan and Guaranty Agreement dated as of
October 26, 1995 (the "5-Year Agreement") among PM Companies, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Agent for the
Lender and such other lenders. The 5-Year 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.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
[Name of Borrower]
By:
--------------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
GUARANTY
(Only for B Notes issues by a Borrower other than
PM Companies)
SECTION 1. Guaranty. The undersigned, PHILIP MORRIS COMPANIES INC., a
Virginia corporation (the "Guarantor"), hereby unconditionally and irrevocably
guarantees the punctual payment when due of all obligations of the Borrower
under the above Promissory Note (the "Note") (such obligations being the
"Obligations"), and any and all expenses (including counsel fees and expenses)
incurred by the holder of the Note in enforcing any rights under the Note or
this Guaranty.
SECTION 2. Guaranty Absolute. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Note,
regardless of any law, rule, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of the holder of the
Note with respect thereto. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of (i) any law of validity,
enforceability or genuineness of the Note 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 Note; (iii) any exchange,
release or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any other guaranty, for all or any of
the Obligations; or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower 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 Lender upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment has not
been made.
SECTION 3. Waiver. (a) The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that the holder of the Note
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
Borrower or any other person or entity or any collateral.
(b) The Guarantor hereby irrevocably waives any claims or other
rights that it may now or hereafter acquire against the Borrower that arise
from the existence, payment, performance or enforcement of the Guarantor's
obligations under this Guaranty or this Note; including, without limitation,
the right to take or receive from the Borrower, 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, remedy or right. If any amount shall be paid to the
Guarantor in violation of the preceding sentence at any time prior to the cash
payment
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
in full of the Obligations, such amount shall be held in trust for the benefit
of the holder of this Note and shall forthwith be paid to the holder of this
Note to be credited and applied to the Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of this Note and this Guaranty, or to be held as collateral for any
Obligations or other amounts payable under this Guaranty thereafter arising.
The Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Note and this Guaranty and
that the waiver set forth in this subsection is knowingly made in contemplation
of such benefits.
SECTION 4. Payments Free and Clear of Taxes, Etc. Any and all
payments made by the Guarantor hereunder to the payee named in the Note shall
be made in accordance with the Note free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
by the United States by means of withholding tax if and to the extent that such
taxes shall be in effect and shall be applicable, on the date hereof, to
payments to be made by the Guarantor herein.
SECTION 5. No Waiver. No failure to exercise, and no delay in
exercising, any right hereunder on the part of the holder of the Note shall
operate as a waiver of such rights; 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 6. Continuous Guaranty; Transfer of Note. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect until payment
in full of the Obligations and all other amounts payable under this Guaranty,
(ii) be binding upon the Guarantor, its successors and assigns, and (iii) inure
to the benefit of and be enforceable by the Lender and its successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (iii), the Lender may assign or otherwise transfer the Note to any other
person or entity, and such other person or entity shall thereupon become vested
with all the rights in respect thereof granted to the Lender herein or
otherwise.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
3
This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York, United States.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by its officer thereunto duly authorized on the date first above
written.
PHILIP MORRIS COMPANIES INC.
By:
--------------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
EXHIBIT B-1
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the 5-Year Agreement
referred to below
One Court Square
Long Island City, New York 11120
[Date]
Attention:
Gentlemen:
The undersigned, Philip Morris Companies Inc., refers to the 5-Year
Loan and Guaranty Agreement, dated as of October 26, 1995 (the "5-Year
Agreement", the terms defined therein being used herein as therein defined),
among Philip Morris Companies Inc., certain lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the 5-Year Agreement that the
undersigned hereby requests an A Borrowing under the 5-Year 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 5-Year
Agreement:
(i) The Business Day of the Proposed A Borrowing is ________________,
199__.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Adjusted CD Rate Advances] [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 [________ days] [______ month[s]].
(v) The name of the Borrower is _________________.
The undersigned hereby certifies that the following statements will
be true on the date of the Proposed A Borrowing, before and after giving effect
thereto and to the
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
application of the proceeds therefrom: (a) the representations and warranties
contained in Section 4.01 of the 5-Year Agreement (excluding those contained in
subsections (e) and (f) thereof) and, if the Borrower is a subsidiary of PM
Companies, Section 9.01(b) of the 5-Year Agreement are correct on and as of
such date as though made on and as of such date, (b) no event has occurred and
is continuing, or would result from the Proposed A Borrowing, 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) if such Proposed A
Borrowing is in an aggregate principal amount equal to or greater than
$500,000,000 and is being made in connection with any purchase of shares of the
Borrower's or the Guarantor's capital stock or the capital stock of any other
Person, or any purchase of all or substantially all of the assets of any Person
(whether in one transaction or a series of transactions) or any transaction of
the type referred to in Section 5.02(b) of the 5-Year Agreement, the statements
in (a) and (b) above will be true and correct after giving effect to such
transaction or purchase, and (d) the aggregate principal amount of the Proposed
A Borrowing and all other Borrowings to be made on the same day under the
5-Year Agreement is within the applicable unused Commitments of the Lenders.
Very truly yours,
PHILIP MORRIS COMPANIES INC.
By:
--------------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
EXHIBIT B-2
FORM OF NOTICE OF B BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the 5-Year Agreement
referred to below
One Court Square
Long Island City, New York 11120
Attention:
Gentlemen:
The undersigned, Philip Morris Companies Inc., refers to the 5-Year
Loan and Guaranty Agreement, dated as of October 26, 1995 (the "5-Year
Agreement"; the terms defined therein being used herein as therein defined),
among PM Companies, certain lenders parties thereto (the "Lenders") and
Citibank, N.A., as Agent for the Lenders, and hereby gives you notice pursuant
to Section 2.03 of the 5-Year Agreement that the undersigned hereby requests a
B Borrowing under the 5-Year 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 B Borrowing __________________
(B) Amount of B Borrowing __________________
(C) Maturity Date __________________
(D) Interest Rate Basis __________________
(E) Interest Payment Date(s) __________________
(F) Name of Borrower __________________
The undersigned hereby certifies that the following statements will
be true on the date of the Proposed B Borrowing, before and after giving effect
thereto and to the application of the proceeds therefrom: (a) the
representations and warranties contained in Section 4.01 of the 5-Year
Agreement and, if the Borrower is a subsidiary of PM Companies, Section 9.01(b)
of the 5-Year Agreement are correct on and as of such date 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, 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, and (c) the aggregate principal amount of the
Proposed B Borrowing and all other Borrowings to be made on the same day under
the 5-Year Agreement is within the applicable unused Commitments of the
Lenders.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
The undersigned hereby confirms that you are to make the Proposed B
Borrowing available to us in accordance with Section 2.03(a)(v) of the 5-Year
Agreement by crediting the amount of the Proposed B Borrowing to [be provided].
Dated: ___________________, 19__
Very truly yours,
PHILIP MORRIS COMPANIES INC.
By:
--------------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated ________, 199
Reference is made to the 5-Year Loan and Guaranty Agreement dated as
of October 26, 1995 (the "5-Year Agreement") among Philip Morris Companies
Inc., a Virginia corporation, the Lenders (as defined in the 5-Year Agreement)
and Citibank, N.A., as Agent for the Lenders (the "Agent"). Terms defined in
the 5-Year 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, the percentage
interest specified on Schedule 1 hereto in and to all (other than any B
Advances owing to the Assignor or any B Notes held by it) of the
Assignor's rights and obligations under the 5-Year Agreement as of the
date hereof (after giving effect to any other assignments thereof made
prior to the date hereof, whether or not such assignments have become
effective, but without giving effect to any other assignments thereof also
made on the date hereof), including, without limitation, such percentage
interest in the Assignor's Commitment and the A Advances owing to the
Assignor.
2. The Assignor (i) represents and warrants that as of the date
hereof its Commitment (after giving effect to other assignments thereof
made prior to the date hereof, whether or not such assignments have become
effective, but without giving effect to any other assignments thereof also
made on the date hereof) is in the dollar amount specified as the
Assignor's Commitment on Schedule 1 hereto and the aggregate outstanding
principal amount of Advances owing to it (after giving effect to any other
assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, but without giving effect to any other
assignments thereof also made on the date hereof) is in the dollar amount
specified as the aggregate outstanding principal amount of Advances owing
to the Assignor on Schedule 1 hereto; (ii) 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;
(iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with the 5-Year Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the 5-Year
Agreement or any other instrument or document furnished pursuant thereto;
and (iv) makes no representation or warranty and assumes no responsibility
with respect to the financial
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
condition of PM Companies or any Borrower or the performance or
observance by PM Companies or any Borrower of any of their obligations
under the 5-Year Agreement or any other instrument or document furnished
pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
5-Year Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement and Acceptance; (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor
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 5-Year Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such
powers under the 5-Year Agreement as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the 5-Year Agreement are
required to be performed by it as a Lender; [and] (vi) specifies as its CD
Lending Office, Domestic Lending Office (and address for notices) and
Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof [and (vii) 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 5-Year Agreement 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 for 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 5-Year 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 5-Year Agreement.
- --------
* If the Assignee is organized under the laws of a jurisdiction outside the
United States.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
3
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the 5-Year
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect
thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the 5-Year Agreement 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.
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.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
Schedule I
to
Assignment and Acceptance
Dated ____________ 19__
Section 1.
Percentage Interest ________%
Section 2.
Assignor's Commitment: $________
Aggregate Outstanding Principal
Amount of Advances owing to the Assignor: $________
Section 3.
Effective Date*: ____________, 19__
[NAME OF ASSIGNOR]
By:
--------------------------------
Title:
[NAME OF ASSIGNEE]
By:
--------------------------------
Title:
CD Lending Office:
[Address]
Domestic Lending Office
(and address for notices):
[Address]
- --------
* This date should be no earlier than the date of acceptance by the Agent.
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
2
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of __________________________, 19__
CITIBANK, N.A.
By:
---------------------------------
Title:
Philip Morris $8 billion, 5 year Facility
107900.5/NYL3
EXHIBIT D
[Form of Opinion of Counsel for Philip Morris Companies Inc.]
[Date of initial Borrowing]
To each of the Lenders parties
to the 5-Year Loan and Guaranty
Agreement dated as of
October 26, 1995 among
Philip Morris Companies Inc.,
said Lenders and Citibank, N.A.,
as Agent, and to Citibank, N.A.,
as Agent
Philip Morris Companies Inc.
Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(c) of the
5-Year Loan and Guaranty Agreement dated as of October 26, 1995 (the "5-Year
Agreement") among Philip Morris Companies Inc. ("PM Companies"), the Lenders
parties thereto and Citibank, N.A., as Agent for said Lenders. Unless otherwise
defined herein, terms defined in the 5-Year Agreement are used herein as
therein defined.
We have acted as counsel for PM Companies and its subsidiaries [,
including ________ (the "Borrower"),] in connection with the preparation,
execution and delivery of, and the initial Borrowing made under, the 5-Year
Agreement.
In that connection we have examined:
(1) The 5-Year Agreement.
(2) The documents furnished by PM Companies [and the Borrower]
pursuant to Article III of the 5-Year Agreement.
(3) The [Articles] [Certificate] of Incorporation of PM Companies
[and the Borrower] and all amendments thereto (the "Charter[s]").
(4) The by-laws of PM Companies [and the Borrower] and all amendments
thereto (the "By-laws").
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We have also examined the originals, or copies certified to our satisfaction,
of such corporate records of PM Companies [and the Borrower], certificates of
public officials and of officers of PM Companies [and the Borrower], and
agreements, instruments and documents, as we have deemed necessary as a basis
for the opinions hereinafter expressed. As to questions of fact material to
such opinions, we have, when relevant facts were not independently established
by us, relied upon certificates of PM Companies [and the Borrower] or their
[respective] officers or of public officials. We have assumed the due execution
and delivery, pursuant to due authorization, of the 5-Year Agreement by the
Lenders parties thereto and the Agent.
Based upon the foregoing and upon such investigation as we have
deemed necessary, we are of the following opinion:
1. PM Companies is a corporation duly organized, validly existing and
in good standing under the laws of Virginia. [The Borrower is a
corporation duly organized, validly existing and in good standing under
the laws of __________________.]
2. The execution, delivery and performance by PM Companies of the
5-Year Agreement [and the B Notes] are within PM Companies' corporate
powers,* have been duly authorized by all necessary corporate action, and
do not contravene (i) the Charter[s] or the By-laws or (ii) any law, rule
or regulation applicable to PM Companies [or the Borrower] (including,
without limitation, Regulation X of the Federal Reserve Board) or (iii) to
the best of our knowledge, any contractual or legal restriction binding on
or affecting PM Companies [or the Borrower]. The B Notes have been duly
executed and delivered on behalf of [PM Companies] [the Borrower] [,]
[and] the 5-Year Agreement [has] [and the guaranties endorsed on the B
Notes have] been duly executed and delivered on behalf of PM Companies
[and the Notice of Acceptance of the Borrower has 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 PM Companies of the
5-Year Agreement [or the B Notes] [or the guaranties endorsed on the B
Notes] [or by the Borrower of its Notice of Acceptance or the B Notes to
be executed and delivered on its behalf].
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* If a subsidiary is the Borrower, "The execution, delivery and performance by
PM Companies of the 5-Year Agreement [and the guaranties endorsed on the B
Notes], and by the Borrower of its Notice of Acceptance [and the B Notes], are
within PM Companies' and the Borrower's corporate powers".
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4. The 5-Year Agreement is the legal, valid and binding obligation of
PM Companies enforceable against PM Companies in accordance with its
terms. [The B Notes issued on the date hereof [and the guaranties endorsed
thereon] are the legal, valid and binding obligations of [PM Companies]
[the Borrower] [the Borrower and PM Companies, respectively,] enforceable
against [PM Companies] [the Borrower] [the Borrower and PM Companies,
respectively,] in accordance with their respective terms.]
5. Except as disclosed in the Form 10-K of Philip Morris for the
fiscal year ended December 31, 1994, and in its quarterly report on Form
10-Q for the quarter ended June 30, 1995, there is, to the best of our
knowledge, no pending or threatened action or proceeding against PM
Companies [or the Borrower] or any of [its] [their] subsidiaries before
any court, governmental agency or arbitrator which is likely to have a
material adverse effect upon the financial condition or operations of PM
Companies and its subsidiaries taken as a whole.
6. PM Companies directly or indirectly owns 100% of the capital stock
of [the Borrower and of] Philip Morris.
The opinions set forth above are subject to the following qualifications:
(a) Our opinion in paragraph 4 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally.
(b) Our opinion in paragraph 4 above is subject to the effect of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Very truly yours,
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EXHIBIT E
[Form of Opinion of Special Counsel for the Agent]
[Date of initial Borrowing]
To the Banks listed on
Exhibit A hereto and
to Citibank, N.A.,
as Agent
Philip Morris Companies Inc.
Gentlemen:
We have acted as special New York counsel to Citibank, N.A., acting
for itself and as Agent, in connection with the preparation, execution and
delivery of, and the initial Borrowing made under, the 5-Year Loan and Guaranty
Agreement dated as of October 26, 1995 (the "5-Year Agreement") among Philip
Morris Companies Inc. and each of you. Unless otherwise defined herein, terms
defined in the 5-Year Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) A counterpart of the 5-Year Agreement, executed by each of the
parties thereto.
(2) The documents furnished pursuant to Article III of the 5-Year
Agreement and listed on Exhibit B hereto, including the opinion of Hunton
& Williams, counsel for PM Companies and its subsidiaries.
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 the Banks parties to the
5-Year Agreement and the Agent has duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the 5-Year Agreement.
To the extent that our opinions expressed below involve conclusions
as to the matters set forth in paragraphs 1, 2, 3 and 6 of the above-mentioned
opinion of Hunton & Williams, 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 of Hunton & Williams with respect thereto.
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Based upon the foregoing examination of documents and assumptions and
upon such other investigation as we have deemed necessary, we are of the
following opinion:
1. The 5-Year Agreement is, and the guaranties endorsed on the B
Notes when delivered under the Loan Agreement will be, the legal, valid
and binding obligation of PM Companies enforceable against PM Companies in
accordance with its terms.
2. The B Notes of [PM Companies] [__________] (the "Borrower"), if
any, issued on the date hereof are the legal, valid and binding
obligations of [PM Companies] [the Borrower] enforceable against [PM
Companies] [the Borrower] in accordance with their respective terms.
Our opinions in paragraphs 1 and 2 above are subject to the following
qualifications:
(a) Our opinions in paragraphs 1 and 2 above are 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).
Further, pursuant to such equitable principles, (i) Section 8.02 of the
5-Year Agreement, which Section provides that the Guarantor's liability
thereunder shall not be affected by changes in or amendments to the 5-Year
Agreement, and (ii) Section 2 of the guaranty endorsed on the B Notes,
which Section provides that the Guarantor's liability thereunder shall not
be affected by changes in or amendments to the B Notes, might be
enforceable only to the extent that such changes or amendments were not so
material as to constitute a new contract among the parties.
(b) Our opinions in paragraphs 1 and 2 above are also subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws 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
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than the State of New York wherein any Lender may be located or
wherein enforcement of the 5-Year Agreement or the B Notes may be sought
which limits the rates of interest legally chargeable or collectible.
Very truly yours,
SHEARMAN & STERLING
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EXHIBIT A
to the Opinion dated _________________, 1995
of Shearman & Sterling
Banks
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EXHIBIT B
to the Opinion dated _________________, 1995
of Shearman & Sterling
Documents
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EXHIBIT F
NOTICE OF ACCEPTANCE
Dated ___________, 199__
The undersigned, ________________, a ____________________________
corporation and a subsidiary of PM Companies (as defined below) (the
"Subsidiary"), hereby:
1. Confirms that this Notice of Acceptance is being delivered
pursuant to Section 9.01 of that certain 5-Year Loan and Guaranty
Agreement dated as of October 26, 1995 (the "5-Year Agreement", terms
defined therein being used herein with the same meaning), among Philip
Morris Companies Inc. ("PM Companies"), the lenders parties thereto (the
"Lenders") and Citibank, N.A., as agent for the Lenders (the "Agent").
2. States that the Subsidiary desires to become a "Borrower" under
the Agreement and agrees to be bound by the terms and provisions of the
5-Year Agreement as a "Borrower" thereunder.
3. Represents and warrants as follows:
(a) The Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of ____________________.
(b) The execution, delivery and performance by the Subsidiary of
the B Notes, if any, executed and delivered and to be executed and
delivered by it, the 5-Year Agreement and this Notice of Acceptance
are within the Subsidiary's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Subsidiary's charter or by-laws or (ii) any law, rule,
regulation or order of any court or governmental agency or any
contractual restriction binding on or affecting the Subsidiary.
(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 Subsidiary of the B Notes executed and delivered and to be
executed and delivered by it, the 5-Year Agreement or this Notice of
Acceptance.
(d) The 5-Year Agreement is, and the B Notes of such Subsidiary
if delivered under the 5-Year Agreement will be, the legal, valid and
binding obligations of the Subsidiary enforceable against the
Subsidiary in accordance with their terms, subject to the effect of
any applicable bankruptcy,
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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 in equity or at law).
(e) There is no pending or threatened action or proceeding
affecting the Subsidiary or any of its subsidiaries before any court,
governmental agency or arbitrator which purports to affect the
legality, validity or enforceability of the 5-Year Agreement or any
Note.
(f) PM Companies owns directly or indirectly 100% of the capital
stock of the Subsidiary.
4. Delivers with this Notice of Acceptance an opinion of counsel for
PM Companies, pursuant to Section 9.01(b) of the Agreement, in the form of
Schedule 1 hereto.
[(Name of Borrower)]
By
--------------------------------
Title:
The undersigned, as Guarantor under the Agreement, hereby confirms
and agrees to the foregoing Notice of Acceptance pursuant to Section 9.01(a) of
the Agreement.
PHILIP MORRIS COMPANIES INC.
By:
--------------------------------
Title:
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Schedule 1
to
Notice of Acceptance
[OPINION OF COUNSEL FOR PM COMPANIES]
[Date of Notice of Acceptance]
To each of the Lenders parties
to the 5-Year Loan and Guaranty
Agreement dated as of October 26,
1995 among Philip Morris Companies
Inc., said Lenders and Citibank, N.A.,
as Agent, and to Citibank, N.A., as
Agent
Philip Morris Companies Inc.
Gentlemen:
This opinion is furnished to you pursuant to Section 9.01(b) of the
5-Year Loan and Guaranty Agreement, dated as of October 26, 1995 (the "5-Year
Agreement"), among Philip Morris Companies Inc. ("PM Companies"), the Lenders
parties thereto and Citibank, N.A., as Agent for said Lenders. Unless otherwise
defined herein, terms defined in the 5-Year Agreement are used herein as
therein defined.
We have acted as counsel for PM Companies and its subsidiary, _______
(the "Subsidiary"), in connection with the preparation, execution and delivery
of the Notice of Acceptance by the Subsidiary delivered pursuant to Section
9.01 of the 5-Year Agreement.
In that connection, we have examined the 5-Year Agreement, the B
Notes, if any, to be executed and delivered by the Subsidiary and such other
agreements, instruments and documents as we have deemed necessary as a basis
for the opinion expressed below. As to questions of fact material to such
opinion, we have, when relevant facts were not independently established by us,
relied upon certificates of PM Companies and the Subsidiary or their respective
officers or of public officials. We have assumed the due execution and
delivery, pursuant to due authorization, of the 5-Year Agreement by the Lenders
parties thereto and the Agent.
2
Based upon the foregoing and upon such investigation as we have
deemed necessary, we are of the opinion that the 5-Year Agrement is, and the B
Notes of the Subsidiary if delivered under the 5-Year Agreement will be, the
legal, valid and binding obligations of the Subsidiary enforceable against the
Subsidiary in accordance with their respective terms, 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, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Very truly yours,