Exhibit 4.3
U.S.$8,000,000,000
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of October 14, 1997
Among
PHILIP MORRIS COMPANIES INC.
and
THE INITIAL LENDERS NAMED HEREIN
and
CITIBANK, N.A.
and
THE CHASE MANHATTAN BANK
as Administrative Agents
and
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
and
DEUTSCHE BANK AG, NEW YORK BRANCH
as Documentation Agent
TABLE OF CONTENTS Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 1
SECTION 1.02. Computation of Time Periods................................... 11
SECTION 1.03. Accounting Terms.............................................. 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances................................. 11
SECTION 2.02. Making the Revolving Credit Advances.......................... 12
SECTION 2.03. The Competitive Bid Advances.................................. 13
SECTION 2.04. Fees.......................................................... 17
SECTION 2.05. Termination or Reduction of the Commitments................... 17
SECTION 2.06. Repayment of Revolving Credit Advances........................ 18
SECTION 2.07. Interest on Revolving Credit Advances......................... 18
SECTION 2.08. Additional Interest on Eurocurrency Rate Advances............. 18
SECTION 2.09. Interest Rate Determination................................... 19
SECTION 2.10. Prepayments of Advances....................................... 20
SECTION 2.11. Increased Costs............................................... 21
SECTION 2.12. Illegality.................................................... 22
SECTION 2.13. Payments and Computations..................................... 22
SECTION 2.14. Taxes......................................................... 24
SECTION 2.15. Sharing of Payments, Etc...................................... 25
SECTION 2.16. Evidence of Debt.............................................. 25
SECTION 2.17. Use of Proceeds............................................... 26
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness......................... 26
SECTION 3.02. Initial Advance to Each Designated Subsidiary................. 27
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing....... 28
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing........ 29
SECTION 3.05. Determinations Under Section 3.01............................. 29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of PM Companies................ 29
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TABLE OF CONTENTS Page
ARTICLE V
COVENANTS OF PM COMPANIES
SECTION 5.01. Affirmative Covenants......................................... 30
SECTION 5.02. Negative Covenants............................................ 31
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................. 32
ARTICLE VII
THE ADMINISTRATIVE AGENTS
SECTION 7.01. Authorization and Action...................................... 34
SECTION 7.02. Administrative Agents' Reliance, Etc.......................... 34
SECTION 7.03. Citibank, Chase and Affiliates................................ 35
SECTION 7.04. Lender Credit Decision........................................ 35
SECTION 7.05. Indemnification............................................... 35
SECTION 7.06. Successor Administrative Agents............................... 35
SECTION 7.07. Administrative Sub-Agent...................................... 36
SECTION 7.08. Syndication and Documentation Agents.......................... 36
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty...................................................... 36
SECTION 8.02. Guaranty Absolute............................................. 36
SECTION 8.03. Waivers....................................................... 37
SECTION 8.04. Continuing Guaranty........................................... 37
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc............................................... 38
SECTION 9.02. Notices, Etc.................................................. 38
SECTION 9.03. No Waiver; Remedies........................................... 38
SECTION 9.04. Costs and Expenses............................................ 38
SECTION 9.05. Right of Set-off.............................................. 39
SECTION 9.06. Binding Effect................................................ 40
SECTION 9.07. Assignments and Participations................................ 40
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TABLE OF CONTENTS Page
SECTION 9.08. Designated Subsidiaries....................................... 42
SECTION 9.09. Governing Law................................................. 42
SECTION 9.10. Execution in Counterparts..................................... 42
SECTION 9.11. Judgment...................................................... 42
SECTION 9.12. Jurisdiction, Etc............................................. 43
SECTION 9.13. Substitution of Currency...................................... 43
SECTION 9.14. Confidentiality............................................... 44
SECTION 9.15. Integration................................................... 44
Schedules
Schedule I - List of Applicable Lending Offices [Intentionally Omitted]
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E-1 - Form of Opinion of Counsel for PM Companies
Exhibit E-2 - Form of Opinion of Counsel for PM Companies
Exhibit F - Form of Opinion of Counsel for Designated Subsidiary
Exhibit G - Form of Opinion of Counsel for Citibank, as Administrative Agent
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of October 14, 1997
PHILIP MORRIS COMPANIES INC., a Virginia corporation ("PM
Companies"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
("Citibank") and THE CHASE MANHATTAN BANK ("Chase"), as administrative agents
(each, in such capacity, an "Administrative Agent"), CREDIT SUISSE FIRST BOSTON,
as syndication agent (in such capacity, the "Syndication Agent") and DEUTSCHE
BANK AG, NEW YORK BRANCH, as documentation agent (in such capacity, the
"Documentation Agent") for the Lenders (as hereinafter defined), 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):
"Administrative Sub-Agent" means Citibank International plc.
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Agents" means each Administrative Agent, the Syndication Agent, the
Documentation Agent and the Administrative Sub-Agent.
"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:
Long-Term Applicable
Senior Unsecured Facility
Debt Rating Fee Rate
---------------- ----------
AA- and Aa3 (or higher) 0.0550%
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 0.1500%;
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 Required Lenders, the Applicable
Facility Fee Rate shall be 0.150%.
2
"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) 0.0950%
A- and A3 or higher
but lower than AA- and Aa3 0.1250%
BBB and Baa2 or higher,
but lower than A- and A3 0.2000%
Lower than BBB and Baa2 0.3000%;
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 Required Lenders, the Applicable
Interest Rate Margin shall be 0.300%.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to Citibank, as Administrative Agent,
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"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, 1997, 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, 1997,
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
Citibank, as Administrative Agent, in substantially the form of Exhibit C
hereto.
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"Base Rate" means a fluctuating interest rate per annum 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) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of 1/2 of 1% per
annum, plus 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; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"Borrowers" means, collectively, PM Companies and each Designated
Subsidiary that shall become a party to this Agreement pursuant to Section
9.08.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances or LIBO
Rate Advances on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance or LIBO Rate
Advance (or, in the case of an Advance denominated in the euro, in
Frankfurt, Germany) and, if the applicable Business Day relates to any
Local Rate Advances on which banks are open for business in the country of
issue of the currency of such Local Rate Advance.
"Citibank's Administrative Agent Account" means (a) in the case of
Advances denominated in Dollars, the account of Citibank, as
Administrative Agent, maintained by Citibank, as Administrative Agent, at
Citibank at its office at Two Penns Way, Suite 200, New Castle, Delaware
19720, Account No. 36852248, Attention: Dave Meckler, (b) in the case of
Advances denominated in any Foreign Currency, the account of the
Administrative Sub-Agent, designated in writing from time to time by
Citibank, as Administrative Agent, to PM Companies and the Lenders for
such purpose and (c) in any such case, such other account of Citibank, as
Administrative Agent, as is designated in writing from time to time by
Citibank, as Administrative Agent, to PM Companies and the Lenders for
such purpose.
"Committed Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of the Republic of France, lawful
currency of The Swiss Federation, lawful currency of The Netherlands,
lawful currency of Japan and lawful currency of the European Economic and
Monetary Union.
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"Commitment" means as to any Lender (a) the Dollar amount set forth
opposite such Lender's name on the signature pages hereof or (b) if such
Lender has entered into any Assignment and Acceptance, the Dollar amount
set forth for such Lender in the Register maintained by Citibank, as
Administrative Agent, pursuant to Section 9.07(d), as such amount may be
reduced pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"Competitive Bid Reduction" 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, 1997, 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%.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.07, 2.09 or 2.12.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services, whether or not 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 any other Person of the kinds referred to in clause (i) or
(ii) above.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any wholly-owned Subsidiary of PM
Companies designated for borrowing privileges under this Agreement
pursuant to Section 9.08.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit D hereto signed by such
Designated Subsidiary and PM Companies.
5
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"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 Citibank, as
Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"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
$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 Lender; (vii) an
affiliate of any Lender; and (viii) any other bank, commercial finance
company, insurance company or other Person approved in writing by PM
Companies, which approval shall be notified to Citibank, as Administrative
Agent.
"Equivalent" in Dollars of any Foreign Currency on any date means
the equivalent in Dollars of such Foreign Currency determined by using the
quoted spot rate at which the Administrative Sub-Agent's principal office
in London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms
of this Agreement) on such date as is required pursuant to the terms of
this Agreement, and the "Equivalent" in any Foreign Currency of Dollars
means the equivalent in such Foreign Currency of Dollars determined by
using the quoted spot rate at which the Administrative Sub-Agent's
principal office in London offers to exchange such Foreign Currency for
Dollars in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of any Borrower's controlled group, or under common
control with any Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) 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 (ii) 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; (b) the
application for a minimum funding waiver with respect to a Plan; (c) 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); (d) the cessation of operations at a facility of any
Borrower or PM Companies or any of their
6
ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (e) 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; (f) 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; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency 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 Citibank, as
Administrative Agent.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum determined by Citibank, as
Administrative Agent, to be the offered rate per annum at which deposits
in Dollars or in the applicable Committed Currency appear on Telerate
Pages 3740 and 3750 (or any successor pages, respectively) as of 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period, or in the event such offered rate is not available from the
Telerate Pages, the 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
Dollars or in the applicable Committed Currency are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period. If the Eurocurrency Rate does not appear on Telerate Pages 3740
and 3750 (or any successor pages, respectively), the Eurocurrency Rate for
any Interest Period for each Eurocurrency Rate Advance comprising part of
the same Revolving Credit Borrowing shall be determined by Citibank, as
Administrative Agent, on the basis of applicable rates furnished to and
received by Citibank, as Administrative Agent, from the Reference Banks
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for
all Eurocurrency Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before 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, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any
7
other category of liabilities that includes deposits by reference to which
the interest rate on Eurocurrency Rate Advances or LIBO Rate Advances is
determined) 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.
"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 that is a Business Day, the
average of the quotations for such day on such transactions received by
Citibank, as Administrative 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, 1997, 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%.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advance shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Committed Currency, the lawful currency
of Canada and any other lawful currency (other than Dollars) that is
freely transferable or convertible into Dollars.
"Home Jurisdiction Withholding Taxes" means (a) in the case of PM
Companies, withholding for United States income taxes, United States
back-up withholding taxes and United States withholding taxes and (b) in
the case of a Designated Subsidiary, withholding taxes imposed by the
jurisdiction under the laws of which such Designated Subsidiary is
organized or any political subdivision thereof.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period
selected by the Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or, if acceptable to all Lenders, nine or twelve months, as such
Borrower may select upon notice received by Citibank, as Administrative
Agent, not later than 11:00 A.M.
8
(New York City time) on the third Business Day prior to the first day of
such Interest Period; provided, however, that:
(i) such Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) 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, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iii) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means the Initial Lenders and each Eligible Assignee that
shall become a party hereto pursuant to Section 9.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum determined by Citibank, as Administrative Agent,
to be the offered rate per annum at which deposits in Dollars or in the
relevant Foreign Currency appear on Telerate Pages 3740 and 3750 (or any
successor pages, respectively) as of 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period, or in the event such
offered rate is not available from the Telerate Pages, the 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 Dollars or in the relevant
Foreign Currency are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to the amount
that would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period. If the LIBO Rate does not appear on the Telerate Pages
3740 and 3750 (or any successor pages, respectively), the LIBO Rate for
any Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by Citibank, as
Administrative Agent, on the basis of applicable rates furnished to and
received by Citibank, as Administrative Agent, from the Reference Banks
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance denominated in
Dollars or in any Foreign Currency and bearing interest based on the LIBO
Rate.
"Local Rate Advances" means a Competitive Bid Advance denominated in
any Foreign Currency sourced from the jurisdiction of issuance of such
Foreign Currency and bearing interest at a fixed rate.
9
"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 Union 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 $1,000,000,000.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate
is 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 (a) is maintained for employees of any
Borrower or any ERISA Affiliate and at least one Person other than such
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which such Borrower 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, 1997, 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%.
"1995 Loan Agreements" has the meaning specified in Section 3.01(c).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"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 2.14(b).
"Payment Office" means, for any Foreign Currency, such office of
Citibank as shall be from time to time selected by Citibank, as
Administrative Agent, and notified by Citibank, as Administrative Agent,
to PM Companies and the Lenders.
10
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company 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.
"Proceeding" has the meaning specified in Section 4.01(f).
"Reference Banks" means Citibank, Chase, Credit Suisse First Boston
and Deutsche Bank AG, New York Branch.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least 66-2/3%
of the then aggregate unpaid principal amount (based on the Equivalent in
Dollars at such time) of the Revolving Credit Advances owing to Lenders,
or, if no such principal amount is then outstanding, Lenders having at
least 66-2/3% of the Commitments (provided that, for purposes hereof,
neither PM Companies nor any Borrower, nor any of their respective
affiliates, if a Lender, shall be included in (i) the Lenders holding such
amount of the Revolving Credit Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid principal amount of
the Revolving Credit Advances or the total Commitments).
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.16 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender to such
Borrower.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and no Person other than such Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which such
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation of which (or in
which) more than 50% of (a) the outstanding capital stock having voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether 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
11
directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Termination Date" means the earlier of October 14, 2002 and the
date of termination in whole of the Commitments pursuant to Section 2.05
or 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.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles, 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, 1997, 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 Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advances to be denominated in a
Committed Currency on the Equivalent in Dollars determined on the date of
delivery of the applicable Notice of Revolving Credit Borrowing) for all of the
Borrowers not to exceed at any time outstanding such Lender's Commitment,
provided, however, that the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount
(based in respect of any Competitive Bid Advance denominated in a Foreign
Currency on the Equivalent in Dollars at such time) of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"); provided further that the
aggregate amount of Revolving Credit Borrowings and Competitive Bid Borrowings
denominated in Foreign Currencies (based on the Equivalent in Dollars on the
Business Day of each Notice of Revolving Credit Borrowing or Notice of
Competitive Bid Borrowing) shall not exceed $2,000,000,000 at any time
outstanding. Each Revolving Credit Borrowing shall be in an aggregate amount of
no less than $50,000,000 (or the Equivalent thereof in any Committed Currency
determined on the date of delivery of the applicable Notice of Revolving Credit
Borrowing) and shall consist of Revolving Credit Advances of the same Type made
on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment and subject
12
to this Section 2.01, any Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 11:00 A.M. (New York City time) on the first Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to Citibank,
as Administrative Agent (and, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances, simultaneously to the Administrative
Sub-Agent), which shall give to each Lender prompt notice thereof by telecopier
or telex. Each such notice of a Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances, initial
Interest Period and currency for each such Revolving Credit Advance. Each
Borrower agrees that each Notice of Revolving Credit Borrowing shall be
delivered by PM Companies from its office in New York, New York or its office in
Zug, Switzerland. Each Lender shall, before 11:00 A.M. (New York City time) on
the date of such Revolving Credit Borrowing, in the case of a Revolving Credit
Borrowing consisting of Advances denominated in Dollars, and before 11:00 A.M.
(London time) on the date of such Revolving Credit Borrowing, in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in any Committed Currency, make available for the account of its Applicable
Lending Office to Citibank, as Administrative Agent, at the applicable
Citibank's Administrative Agent Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After receipt of such funds
by Citibank, as Administrative Agent, and upon fulfillment of the applicable
conditions set forth in Article III, Citibank, as Administrative Agent, will
make such funds available to the Borrower requesting the Revolving Credit
Borrowing at the address of Citibank, as Administrative Agent, referred to in
Section 9.02 or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary notwithstanding, no
Borrower may select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.09 or 2.12.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall be
irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding 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 Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless Citibank, as Administrative Agent, shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing that such
Lender will not make available to Citibank, as Administrative Agent, such
Lender's ratable portion of such Revolving Credit Borrowing, Citibank, as
Administrative Agent, may
13
assume that such Lender has made such portion available to Citibank, as
Administrative Agent, on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and Citibank, as
Administrative Agent, may, in reliance upon such assumption, make available to
the Borrower proposing such Revolving Credit Borrowing on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to Citibank, as Administrative Agent, such
Lender and such Borrower severally agree to repay to Citibank, as Administrative
Agent, forthwith 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 Citibank, as Administrative
Agent, at (i) in the case of such Borrower, the higher of (A) the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (B) the cost of funds incurred by Citibank, as
Administrative Agent, in respect of such amount and (ii) in the case of such
Lender, (A) the Federal Funds Rate in the case of Advances denominated in
Dollars or (B) the cost of funds incurred by Citibank, as Administrative Agent,
in respect of such amount in the case of Advances denominated in Committed
Currencies. If such Lender shall repay to Citibank, as Administrative Agent,
such corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid 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 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Advances denominated
in a Foreign Currency (based on the Equivalent in Dollars at the time such
Competitive Bid Borrowing is requested) then outstanding shall not exceed
$2,000,000,000 and (y) the aggregate amount of the Advances (based in respect of
any Advance denominated in a Foreign Currency on the Equivalent in Dollars at
the time such Competitive Bid Borrowing is requested) then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to Citibank, as Administrative Agent (and, in
the case of a Competitive Bid Borrowing not consisting of Fixed Rate
Advances or LIBO Rate Advances to be denominated in Dollars,
simultaneously to the Administrative Sub-Agent), by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
therein the requested (A) date of such proposed Competitive Bid Borrowing,
(B) aggregate amount of such proposed Competitive Bid Borrowing, (C)
interest rate basis and day count convention to be offered by the Lenders,
(D) currency of such proposed Competitive Bid Borrowing, (E) in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest
Period, or in the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances or Local Rate Advances, maturity date for repayment of each
Fixed Rate Advance or Local Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring seven days after the date of such Competitive Bid Borrowing
or later than the earlier of (I) 360 days after the date of such
Competitive Bid Borrowing and (II) the Termination Date), (F) interest
payment date or dates relating thereto, (G) location of such Borrower's
account to which funds are to be advanced and (H) other terms (if any) to
be applicable to such Competitive Bid Borrowing, not later than (w) 10:00
A.M. (New York City time) at least two Business Days prior to the date of
the proposed Competitive Bid Borrowing, if such Borrower shall specify in
the
14
Notice of Competitive Bid Borrowing that the rates of interest to be
offered by the Lenders shall be fixed rates per annum (the Advances
comprising any such Competitive Bid Borrowing being referred to herein as
"Fixed Rate Advances") and that the Advances comprising such proposed
Competitive Bid Advances shall be denominated in Dollars, (x) 10:00 A.M.
(New York City time) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in the
Notice of Competitive Bid Borrowing that the Competitive Bid Borrowing
shall be LIBO Rate Advances denominated in Dollars, (y) 10:00 A.M. (London
time) at least two Business Days prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such proposed
Competitive Bid Advances shall be either Fixed Rate Advances denominated
in any Foreign Currency or Local Rate Advances denominated in any Foreign
Currency and (z) 10:00 A.M. (London time) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall instead specify in the Notice of Competitive Bid Borrowing
that the Advances comprising such Competitive Bid Borrowing shall be LIBO
Rate Advances denominated in any Foreign Currency. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on such
Borrower. Any Notice of Competitive Bid Borrowing by a Designated
Subsidiary shall be given to Citibank, as Administrative Agent, or to the
Administrative Sub-Agent, as the case may be, in accordance with the
preceding sentence through PM Companies from its office in New York, New
York or its office in Zug, Switzerland on behalf of such Designated
Subsidiary. Citibank, as Administrative Agent, shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing
received by it from such Borrower by sending such Lender a copy of the
related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower proposing the Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying Citibank, as Administrative
Agent, or the Administrative Sub-Agent, as the case may be (which shall
give prompt notice thereof to such Borrower), (A) before 9:30 A.M. (New
York City time) on the Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars, (B) before 9:30
A.M. (New York City time) on the third Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 12:00 noon (London time) on the Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances denominated in any Foreign
Currency and (D) before 12:00 noon (London time) on the third Business Day
prior to the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in any Foreign Currency, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be willing
to make as part of such proposed Competitive Bid Borrowing (which amounts
or the Equivalent thereof in Dollars, as the case may be, 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 Competitive Bid
Advance; provided that, if Citibank in its capacity as a Lender shall, in
its sole discretion, elect to make any such offer, it shall notify such
Borrower of such offer at least 30 minutes before the time and on the date
on which notice of such election is to be given to Citibank, as
Administrative Agent, or to the Administrative Sub-Agent, as the case may
be, by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify Citibank, as Administrative Agent,
before 9:30 A.M. (New York City time) or the Administrative Sub-Agent
before 12:00 noon (London time) on the date on which notice of such
election is to be given to Citibank, as Administrative Agent, or to the
Administrative Sub-Agent, as the case may be, by the other Lenders, and
such Lender
15
shall not be obligated to, and shall not, make any Competitive Bid Advance
as part of such Competitive Bid Borrowing; provided further that the
failure by any Lender to give such notice shall not cause such Lender to
be obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Borrowing shall, in
turn, (A) before 12:00 noon (New York City time) on the Business Day prior
to the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances denominated in
Dollars, (B) before 12:00 noon (New York City time) on the third Business
Day prior to the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in Dollars, (C) before 3:00 P.M. (London time) on the Business
Day prior to the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of either Fixed Rate
Advances denominated in any Foreign Currency or Local Rate Advances
denominated in any Foreign Currency and (D) before 3:00 P.M. (London time)
on the third Business Day prior to the date of such Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances denominated in any Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving Citibank,
as Administrative Agent, notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to Citibank, as Administrative Agent, or to the
Administrative Sub-Agent, as the case may be, of the amount of each
Competitive Bid 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 Citibank, as Administrative
Agent, or by the Administrative Sub-Agent, as the case may be, on
behalf of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving Citibank, as
Administrative Agent, or the Administrative Sub-Agent, as the case
may be, notice to that effect. Such Borrower shall accept the offers
made by any Lender or Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest rate,
the amount to be borrowed at such interest rate will be allocated
among such Lenders in proportion to the maximum amount that each
such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies Citibank, as Administrative Agent, or the Administrative
Sub-Agent, as the case may be, that such Competitive Bid Borrowing is
cancelled pursuant to paragraph (iii)(x) above, or if such Borrower fails
to give timely notice in accordance with paragraph (iii) above, Citibank,
as Administrative Agent, or the Administrative Sub-Agent, as the case may
be, shall give prompt notice thereof to the Lenders and such Competitive
Bid Borrowing shall not be made.
(v) If the Borrower proposing the Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, Citibank, as Administrative Agent, or the
Administrative Sub-Agent, as the case may be, shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
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 Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Advance
16
to be made by such Lender as part of such Competitive Bid Borrowing, and
(C) each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that Citibank, as Administrative
Agent, or the Administrative Sub-Agent, as the case may be, has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 11:00 A.M.
(New York City time), in the case of Competitive Bid Advances to be
denominated in Dollars or 11:00 A.M. (London time), in the case of
Competitive Bid Advances to be denominated in any Foreign Currency, on the
date of such Competitive Bid Borrowing specified in the notice received
from Citibank, as Administrative Agent, or from the Administrative
Sub-Agent, as the case may be, pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from Citibank, as Administrative Agent, pursuant to clause (C) of the
preceding sentence, make available for the account of its Applicable
Lending Office to Citibank, as Administrative Agent, (x) in the case of a
Competitive Bid Borrowing denominated in Dollars, at its address referred
to in Section 9.02, in same day funds, such Lender's portion of such
Competitive Bid Borrowing in Dollars and (y) in the case of a Competitive
Bid Borrowing in a Foreign Currency, at the Payment Office for such
Foreign Currency as shall have been notified by Citibank, as
Administrative Agent, to the Lenders prior thereto, in same day funds,
such Lender's portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by Citibank, as Administrative Agent, of
such funds, Citibank, as Administrative Agent, will make such funds
available to such Borrower at the location specified by such Borrower in
its Notice of Competitive Bid Borrowing. Promptly after each Competitive
Bid Borrowing Citibank, as Administrative Agent, will notify each Lender
of the amount of the Competitive Bid Borrowing, the consequent Competitive
Bid Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies Citibank, as Administrative Agent, or the Administrative
Sub-Agent, as the case may be, that it accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above, such
notice of acceptance shall be irrevocable and binding on such Borrower.
Such Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding
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 Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid Advance,
as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$50,000,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrower that has borrowed such Competitive Bid Borrowing shall be in
compliance with the limitations 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, any 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 Competitive Bid Borrowing shall not be made within two
Business Days of the date of any other Competitive Bid Borrowing.
17
(d) Each Borrower that has borrowed through a Competitive Bid Borrowing
shall repay to Citibank, as Administrative Agent, for the account of each Lender
that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by such
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. Except as
required by Section 2.10(b), no Borrower shall have any right to prepay any
principal amount of any Competitive Bid Advance unless, and then only on the
terms, specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid Borrowing
shall pay interest on the unpaid principal amount of each Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default,
such Borrower shall pay interest on the amount of unpaid principal of each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 1%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each Competitive Bid
Advance made to such Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. PM Companies agrees to pay to
Citibank, as Administrative Agent, for the account of each Lender a facility fee
on the aggregate amount of such Lender's Commitment (whether or not used and
without giving effect to any Competitive Bid Reduction) from the date hereof in
the case of each Initial Lender 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) Agents' Fees. PM Companies shall pay to each Administrative Agent, the
Syndication Agent and the Documentation Agent for their respective own accounts
such fees as may from time to time be agreed between PM Companies and each such
Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. PM Companies shall have the right, upon at least three Business Days'
notice to Citibank, as Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of no less than $50,000,000 and provided further that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances denominated
in Dollars then outstanding plus the Equivalent in Dollars (determined as of the
date of the notice of prepayment) of the aggregate principal amount of the
Competitive Bid Advances denominated in Foreign Currencies then outstanding.
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(b) Mandatory. 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
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 Revolving Credit Advances. Each Borrower
shall repay to Citibank, as Administrative Agent, for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Revolving
Credit Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing by such Borrower to each Lender from the
date of such Revolving Credit Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
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 in arrears monthly on the
20th day of each month and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance plus (y) the Applicable Interest Rate
Margin in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default, each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 1% per annum above the Base Rate in effect from time to
time.
SECTION 2.08. Additional Interest on Eurocurrency 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
19
Liabilities, additional interest on the unpaid principal amount of each
Eurocurrency 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
Eurocurrency Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurocurrency Rate by a percentage equal to 100% minus
the Eurocurrency 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 Citibank, as Administrative Agent.
SECTION 2.09. Interest Rate Determination. (a) (i) In the event that
the relevant Eurocurrency Rate or LIBO Rate does not appear on the Telerate
Pages 3740 and 3750 (or any successor pages, respectively), each Reference Bank
agrees to furnish to Citibank, as Administrative Agent, timely information for
the purpose of determining each Eurocurrency Rate and each LIBO Rate. If any one
or more of the Reference Banks shall not furnish such timely information to
Citibank, as Administrative Agent, for the purpose of determining any such
interest rate, Citibank, as Administrative Agent, shall determine such interest
rate on the basis of timely information furnished by the remaining Reference
Banks.
(ii) Citibank, as Administrative Agent, shall give prompt notice to
PM Companies and the Lenders of the applicable interest rate determined by
Citibank, as Administrative Agent, for purposes of Section 2.07(a)(i) or (ii) or
the determination of the applicable LIBO Rate, and the rate, if any, furnished
by each Reference Bank for the purpose of determining the interest rate under
Section 2.07(a)(ii) or the applicable LIBO Rate.
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify Citibank, as Administrative Agent, that (i) they are unable to
obtain matching deposits in the London inter-bank market at or about 11:00 A.M.
(London time) on the second Business Day before the making of a Borrowing in
sufficient amounts to fund their respective Revolving Credit Advances as a part
of such Borrowing during its Interest Period or (ii) the Eurocurrency Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, Citibank, as Administrative
Agent, shall forthwith so notify PM Companies and the Lenders, whereupon (A) the
Borrower of such Eurocurrency Rate Advances will, on the last day of the then
existing Interest Period therefor, (1) if such Eurocurrency Rate Advances are
denominated in Dollars, either (x) prepay such Advances or (y) Convert such
Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are
denominated in any Committed Currency, either (x) prepay such Advances or (y)
redenominate such Advances into an Equivalent amount of Dollars and Convert such
Advances into Base Rate Advances and (B) the obligation of the Lenders to make,
or to Convert Revolving Credit Advances into, Eurocurrency Rate Advances shall
be suspended until Citibank, as Administrative Agent, shall notify PM Companies
and the Lenders that the circumstances causing such suspension no longer exist;
provided that, if the circumstances set forth in clause (ii) above are
applicable, the applicable Borrower may elect, by notice to Citibank, as
Administrative Agent, and the Lenders, to continue such Advances in such
Committed Currency for Interest Periods of not longer than one month, which
Advances shall thereafter bear interest at a rate per annum equal to the
Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a
rate per annum) of funding its Eurocurrency Rate Advances by whatever means it
reasonably determines to be appropriate. Each Lender shall certify its cost of
funds for each Interest Period to Citibank, as Administrative Agent, and the PM
Companies as soon as practicable (but in any event not later than ten Business
Days after the first day of such Interest Period).
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, Citibank, as
Administrative Agent, will forthwith so notify such Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, (i) if such Eurocurrency Rate Advances
20
are denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Committed Currency, be
redenominated into an Equivalent amount of Dollars and be Converted into Base
Rate Advances.
(d) Upon the occurrence and during the continuance of any Event of Default
under Section 6.01(a), (i) each Eurocurrency Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advances are denominated in Dollars, be Converted into Base
Rate Advances and (B) if such Eurocurrency Rate Advances are denominated in any
Committed Currency, be redenominated into an Equivalent amount of Dollars and be
Converted into Base Rate Advances and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended; provided that PM Companies and the applicable Borrower may elect, by
notice to Citibank, as Administrative Agent, and the Lenders within one Business
Day of such Event of Default, to continue such Advances in such Committed
Currency, whereupon Citibank, as Administrative Agent, may require that each
Interest Period relating to such Eurocurrency Rate Advances shall bear interest
at the Overnight Eurocurrency Rate for a period of three Business Days and
thereafter, each such Interest Period shall have a duration of not longer than
one month. "Overnight Eurocurrency Rate" means the rate per annum applicable to
an overnight period beginning on one Business Day and ending on the next
Business Day equal to the sum of 1%, the Applicable Interest Rate Margin and the
average, rounded upward to the nearest whole multiple of 1/16 of 1%, if such
average is not such a multiple, of the respective rates per annum quoted by each
Reference Bank to Citibank, as Administrative Agent, on request as the rate at
which it is offering overnight deposits in the relevant currency in amounts
comparable to such Reference Bank's Eurocurrency Rate Advances.
(e) If fewer than two Reference Banks furnish timely information to
Citibank, as Administrative Agent, for determining the Eurocurrency Rate or LIBO
Rate for any Eurocurrency Rate Advances or LIBO Rate Advances, as the case may
be,
(i) Citibank, as Administrative Agent, shall forthwith notify PM
Companies and the Lenders that the interest rate cannot be determined for
such Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will, on the last day of the then existing Interest Period therefor, (A)
if such Eurocurrency Rate Advance is denominated in Dollars, be prepaid by
the applicable Borrower or be automatically Converted into a Base Rate
Advance and (B) if such Eurocurrency Rate Advance is denominated in any
Committed Currency, be prepaid by the applicable Borrower or be
automatically redenominated into an Equivalent amount of Dollars and be
Converted into a Base Rate Advance (or if such Advance is then a Base Rate
Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurocurrency Rate Advances shall be suspended until Citibank, as
Administrative Agent, shall notify PM Companies and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.10. Prepayments of Advances. (a) Optional Prepayments of
Revolving Credit Advances. Each Borrower may, in the case of any Eurocurrency
Rate Advance upon at least three Business Days' notice to Citibank, as
Administrative Agent, or, in the case of any Base Rate Advance, upon notice
given to Citibank, as Administrative Agent, not later than 11:00 A.M. (New York
City time) on the date of the proposed prepayment, in each case stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given such Borrower shall, prepay the outstanding principal amount of
the Revolving Credit Advances
21
comprising part of the same Revolving Credit 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 (x) each partial prepayment
shall be in an aggregate principal amount of no less than $50,000,000 or the
Equivalent thereof in a Committed Currency (determined on the date notice of
prepayment is given) and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(b).
(b) Mandatory Prepayments. (i) If Citibank, as Administrative Agent,
notifies PM Companies that, on any interest payment date, the sum of (A) the
aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third Business
Day prior to such interest payment date) of the aggregate principal amount of
all Advances denominated in Foreign Currencies then outstanding exceeds 105% of
the aggregate Commitments of the Lenders on such date, PM Companies and each
other Borrower shall, within two Business Days after receipt of such notice,
prepay the outstanding principal amount of any Advances owing by such Borrower
in an aggregate amount sufficient to reduce such sum to an amount not to exceed
100% of the aggregate Commitments of the Lenders on such date.
(ii) If Citibank, as Administrative Agent, notifies PM Companies
that, on any interest payment date, the Equivalent in Dollars (determined on the
third Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Foreign Currencies outstanding
exceeds 105% of $2,000,000,000, PM Companies and each other Borrower shall,
within two Business Days after receipt of such notice, prepay the outstanding
principal amount of any Advances denominated in a Foreign Currency owing by such
Borrower in an aggregate amount sufficient to reduce such amount to
$2,000,000,000 or less.
(iii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Advances equal to the amount by which (A) the aggregate
principal amount of the Advances then outstanding exceeds (B) the aggregate of
the Commitments (after giving effect to the Competitive Bid Reduction) on such
Business Day.
(iv) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance, a LIBO Rate Advance or a Local Rate Advance on a date other than
the last day of an Interest Period or at its maturity, any additional amounts
which such Borrower shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 9.04(b). Citibank, as Administrative Agent, shall
give prompt notice of any prepayment required under this Section 2.10(b) to the
Borrowers and the Lenders.
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 included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Advances or LIBO Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower of the affected Advances shall from time
to time, upon demand by such Lender (with a copy of such demand to Citibank, as
Administrative Agent), pay to Citibank, as Administrative Agent, for the account
of such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that before making any such demand, each
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making
22
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would 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 Citibank, as
Administrative Agent, by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) 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 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. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify Citibank, as Administrative Agent,
that the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances in Dollars or any Committed Currency or LIBO Rate Advances in Dollars
or any Foreign Currency or to fund or maintain Eurocurrency Rate Advances in
Dollars or any Committed Currency or LIBO Rate Advances in Dollars or any
Foreign Currency hereunder, (a) each Eurocurrency Rate Advance or LIBO Rate
Advance, as the case may be, will automatically, upon such demand, if such
Eurocurrency Rate Advance or LIBO Rate Advance is denominated in Dollars, be
Converted into a Base Rate Advance or an Advance that bears interest at the rate
set forth in Section 2.07(a)(i), as the case may be, and (ii) if such
Eurocurrency Rate Advance or LIBO Rate Advance is denominated in any Foreign
Currency, be redenominated into an Equivalent amount of Dollars and be Converted
into a Base Rate Advance or an Advance that bears interest at the rate set forth
in Section 2.07(a)(i), as the case may be, and (b) the obligation of the Lenders
to make Eurocurrency Rate Advances or LIBO Rate Advances or to Convert Revolving
Credit Advances into Eurocurrency Rate Advances shall be suspended until
Citibank, as Administrative Agent, shall notify PM Companies and the Lenders
that the circumstances causing such suspension no longer exist; provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurocurrency Lending Office if the making
of such a designation would allow such Lender or its Eurocurrency Lending Office
to continue to perform its obligations to make Eurocurrency Rate Advances or to
continue to fund or maintain Eurocurrency Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) PM Companies and each
Borrower shall make each payment hereunder, except with respect to principal of,
interest on, and other amounts relating to, Advances
23
denominated in a Foreign Currency, not later than 11:00 A.M. (New York City
time) on the day when due in Dollars to Citibank, as Administrative Agent, at
the applicable Citibank's Administrative Agent Account in same day funds. PM
Companies and each Borrower shall make each payment hereunder with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in a Foreign Currency, not later than 11:00 A.M. (at the Payment Office for such
Foreign Currency) on the day when due in such Foreign Currency to Citibank, as
Administrative Agent, in same day funds, by deposit of such funds to the
applicable Citibank's Administrative Agent Account in same day funds. Citibank,
as Administrative Agent, will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.03, 2.11, 2.14 or 9.04(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 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, Citibank, as Administrative Agent,
shall make all payments hereunder 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 Citibank, as Administrative Agent,
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
Citibank, as Administrative Agent, on the basis of a year of 365 or 366 days, as
the case may be, all computations of interest based on the Eurocurrency Rate or
the Federal Funds Rate and of facility fees shall be made by Citibank, as
Administrative Agent, on the basis of a year of 360 days and computations in
respect of Competitive Bid Advances shall be made by Citibank, as Administrative
Agent, or the Administrative Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Notice (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), 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 facility fees are payable. Each determination by Citibank, as
Administrative 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 facility fee, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances or LIBO Rate Advances to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless Citibank, as Administrative Agent, shall have received notice
from any Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, Citibank, as
Administrative Agent, may assume that such Borrower has made such payment in
full to Citibank, as Administrative Agent, on such date and Citibank, as
Administrative Agent, may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to Citibank, as Administrative Agent, each Lender shall repay to
Citibank, as Administrative 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 Citibank, as Administrative Agent, at (i) the Federal Funds Rate in
the case of Advances denominated in Dollars or (ii) the cost of funds incurred
by
24
Citibank, as Administrative Agent, in respect of such amount in the case of
Advances denominated in Foreign Currencies.
SECTION 2.14. Taxes. (a) Any and all payments by each Borrower and
PM Companies hereunder shall be made, in accordance with Section 2.13, 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, (i) in the case of each Lender and Citibank, as
Administrative Agent, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender or
Citibank, as Administrative Agent (as the case may be), is organized or any
political subdivision thereof, (ii) in the case of each Lender, taxes imposed on
its net 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 Citibank, as Administrative 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
Citibank, as Administrative Agent (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder 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 Citibank, as Administrative Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or Citibank, as Administrative Agent (as
the case may be), receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower or PM Companies shall make such
deductions and (iii) such Borrower or 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 or PM Companies shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower and PM Companies shall indemnify each Lender and
Citibank, as Administrative Agent, for and hold it harmless against the full
amount of Taxes or Other Taxes (including, without limitation, Taxes and Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.14)
paid by such Lender or Citibank, as Administrative 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 Citibank, as Administrative 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 shall furnish to Citibank, as Administrative Agent, at its
address referred to in Section 9.02, the original or a certified copy of a
receipt evidencing such payment. If any Borrower or PM Companies determines that
no Taxes are payable in respect thereof, such Borrower or PM Companies shall, at
the request of Citibank, as Administrative Agent, furnish or cause the payor to
furnish, Citibank, as Administrative Agent, and each Lender an opinion of
counsel reasonably acceptable to Citibank, as Administrative Agent, stating that
such payment is exempt from Taxes.
(e) Each Lender, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested in writing by
any Borrower, PM Companies or Citibank, as Administrative Agent (but only so
long as such Lender remains lawfully able to do so), shall provide each of
Citibank, as Administrative Agent, PM Companies and such Borrower with any form
or certificate that is required by any taxing authority (including, if
applicable, two original Internal Revenue Service
25
Form 1001 or 4224, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service), certifying that such Lender is exempt from or
entitled to a reduced rate of Home Jurisdiction Withholding Taxes on payments
pursuant to this Agreement. Unless the Borrowers, PM Companies and Citibank, as
Administrative Agent, have received forms or other documents satisfactory to
them indicating that payments hereunder are not subject to Home Jurisdiction
Withholding Taxes or are subject to such tax at a rate reduced by an applicable
tax treaty, such Borrower, PM Companies or Citibank, as Administrative Agent,
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender.
(f) Each Initial Lender hereby confirms as of the Effective Date, and each
other Lender confirms as of the effective date of the Assignment and Acceptance
pursuant to which it becomes a party hereto, in favor of Citibank, as
Administrative Agent, that either (i) such Lender is not resident in the United
Kingdom and is beneficially entitled to the Advances and the interest thereon or
(ii) it is a bank as defined for the purposes of Section 349 of the Income and
Corporation Taxes Act of 1988 of the United Kingdom and is beneficially entitled
to the Advances and the interest thereon, and each Lender agrees to notify
Citibank, as Administrative Agent, if there is any change in its position from
that set forth in this clause (f).
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 9.04(b)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to 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 set-off) 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 2.16. 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 Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon notice by any Lender to such Borrower (with a copy of such notice to
Citibank, as Administrative Agent) to the effect that a Revolving Credit Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Revolving Credit Advances
owing to, or to be made by, such Lender, such Borrower shall promptly execute
and deliver to such Lender a Revolving Credit Note payable to the order of such
Lender in a principal amount up to the Commitment of such Lender.
26
(b) The Register maintained by Citibank, as Administrative Agent, pursuant
to Section 9.07(d) 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 Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, 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 Citibank, as Administrative Agent, from the Borrowers
hereunder and each Lender's share thereof.
(c) Entries made in good faith by Citibank, as Administrative Agent, in
the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from each Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of Citibank, as
Administrative Agent, or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of any Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes of PM Companies and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness. This Agreement
shall become effective on and as of the first date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) PM Companies shall have notified each Lender and Citibank, as
Administrative Agent, in writing as to the proposed Effective Date.
(b) On the Effective Date, the following statements shall be true
and Citibank, as Administrative Agent, shall have received for the account
of each Lender a certificate signed by a duly authorized officer of PM
Companies, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(c) Citibank, as Administrative Agent, shall have received on or
before the Effective Date a letter from PM Companies dated on or before
such day, terminating in whole the commitments of the banks parties to (i)
the 5-Year Loan and Guaranty Agreement dated as of October 26, 1995 (the
"PMC Agreement") among PM Companies, the banks parties thereto and
Citibank, as agent, and (ii) the 5-Year Revolving Credit Agreement dated
as of October 26, 1995 (the "PMCC Agreement") among PM Companies, Philip
Morris Capital Corporation, the banks parties thereto and Citibank, as
agent (collectively, the "1995 Loan Agreements") and each of the Initial
Lenders that is a party to the 1995 Loan Agreements hereby waives, upon
execution of this Agreement, the five Business Days' notice required by
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Section 2.05(a) of the PMC Agreement and Section 2.04 of the PMCC
Agreement, respectively, relating to the termination of the commitments
under such 1995 Loan Agreement.
(d) PM Companies and its Subsidiaries shall have satisfied all of
their respective obligations under the 1995 Loan Agreements including,
without limitation, the payment of all fees under such agreements.
(e) Citibank, as Administrative Agent, shall have received on or
before the Effective Date the following, each dated such day, in form and
substance satisfactory to Citibank, as Administrative Agent:
(i) Certified copies of the resolutions of the Board of
Directors of PM Companies approving this Agreement, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement.
(ii) A certificate of the Secretary or an Assistant Secretary
of PM Companies certifying the names and true signatures of the
officers of PM Companies authorized to sign this Agreement and the
other documents to be delivered hereunder.
(iii) Favorable opinions of counsel (which may be in-house
counsel) for PM Companies, substantially in the form of Exhibits E-1
and E-2 hereto.
(iv) A favorable opinion of Shearman & Sterling, counsel for
Citibank, as Administrative Agent, substantially in the form of
Exhibit G hereto.
(v) A certificate of the chief financial officer of PM
Companies certifying that as of June 30, 1997 (A) 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 (B) the
aggregate amount of Debt included in clause (A) of this subsection
(v) 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.
(f) This Agreement shall have been executed by PM Companies,
Citibank and Chase, as Administrative Agents, Credit Suisse First Boston,
as Syndication Agent, and Deutsche Bank AG, New York Branch, as
Documentation Agent, and Citibank, as Administrative Agent, shall have
been notified by each Initial Lender that such Initial Lender has executed
this Agreement.
SECTION 3.02. Initial Advance to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.08 is subject to the receipt by Citibank, as
Administrative Agent, on or before the date of such initial Advance of each of
the following, in form and substance satisfactory to Citibank, as Administrative
Agent, and dated such date, and in sufficient copies for each Lender:
(a) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement.
28
(b) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such
Designated Subsidiary authorized to sign this Agreement and the other
documents to be delivered hereunder.
(c) A certificate signed by a duly authorized officer of the
Designated Subsidiary, dated as of the date of such initial Advance,
certifying that such Designated Subsidiary shall have obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated Subsidiary
to execute and deliver this Agreement and to perform its obligations
thereunder.
(d) The Designation Agreement of such Designated Subsidiary,
substantially in the form of Exhibit D hereto.
(e) A favorable opinion of counsel (which may be in-house counsel)
to such Designated Subsidiary, dated the date of such initial Advance,
covering, to the extent customary and appropriate for the relevant
jurisdiction, the opinions outlined on Exhibit F hereto.
(f) Such other approvals, opinions or documents as any Lender,
through Citibank, as Administrative Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower requesting such Revolving Credit Borrowing of the
proceeds of such Revolving Credit Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Borrowing such statements
are true):
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) and in subsection (f) thereof (other than clause (i) thereof)) are
correct on and as of the date of such Revolving Credit Borrowing, before
and after giving effect to such Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and additionally, if such Revolving Credit Borrowing shall have been
requested by a Designated Subsidiary, the representations and warranties
of such Designated Subsidiary contained in its Designation Agreement are
correct on and as of the date of such Revolving Credit Borrowing, before
and after giving effect to such Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date;
(b) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(c) If such Revolving Credit 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 PM
Companies'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 statement in (b) above shall also
be true on a pro forma basis as if such transaction or purchase shall have
been completed.
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SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) Citibank, as Administrative Agent, shall have
received the written confirmatory Notice of Competitive Bid Borrowing with
respect thereto, (ii) on or before the date of such Competitive Bid Borrowing,
but prior to such Competitive Bid Borrowing, Citibank, as Administrative Agent,
shall have received a Competitive Bid Note payable to the order of such Lender
for each of the one or more Competitive Bid Advances to be made by such Lender
as part of such Competitive Bid Borrowing, in a principal amount equal to the
principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before
and after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and, if such Competitive Bid Borrowing shall have been requested by
a Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Agreement are correct
in on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of Citibank, as Administrative Agent, responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the date that PM Companies, by notice to the Lenders, designates as the
proposed Effective Date, specifying its objection thereto. Citibank, as
Administrative Agent, shall promptly notify the Lenders of the occurrence of the
Effective Date.
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 Notes to be delivered by it are within its corporate powers, have been
duly authorized by all necessary corporate action, and do
30
not contravene (i) its charter or by-laws or (ii) in any material respect,
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 Notes to be delivered by it.
(d) This Agreement is, and each of the Notes to be delivered by it
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
Subsidiaries as at June 30, 1997 and the consolidated statements of
earnings of PM Companies and its Subsidiaries for the six months then
ended fairly present, in all material respects and subject to year-end
audit adjustments, the consolidated financial condition of PM Companies
and its Subsidiaries as at such date and the consolidated results of the
operations of PM Companies and its Subsidiaries for the six-month period
ended on such date, all in accordance with generally accepted accounting
principles consistently applied. Except as disclosed in PM Companies'
quarterly report on Form 10-Q for the quarter ended June 30, 1997, and in
any Current Report on Form 8-K filed subsequent to June 30, 1997 but prior
to October 14, 1997, since June 30, 1997 there has been no material
adverse change in such condition or operations.
(f) There is no pending or threatened action or proceeding affecting
it or any of its Subsidiaries before any court, governmental agency or
arbitrator (a "Proceeding"), (i) that purports to affect the legality,
validity or enforceability of this Agreement or (ii) except for
Proceedings disclosed in PM Companies' Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1997 and June 30, 1997, its Annual Report on
Form 10-K for the year ended December 31, 1996, its Current Reports on
Form 8-K dated June 20, 1997, June 25, 1997, July 2, 1997 and August 25,
1997 and in any Current Report on Form 8-K filed subsequent to August 25,
1997 but prior to the Effective Date or, with respect to events occurring
after the date of the most recent such document but prior to October 14,
1997, a certificate delivered to the Lenders, that may materially
adversely affect the financial condition or operations of PM Companies and
its Subsidiaries taken as a whole.
(g) It owns directly or indirectly 100% of the capital stock of each
other Borrower and 100% of the capital stock of Philip Morris.
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:
(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, complying with ERISA and paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent contested
31
in good faith), noncompliance with which would materially adversely affect
the financial condition or operations of PM Companies and its Subsidiaries
taken as a whole.
(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; provided that, if under the proposed Memorandum
of Understanding and proposed resolution attached thereto, or under
federal legislation implementing similar terms, entered into on June 20,
1997 by Philip Morris, an initial payment is made by or on behalf of
Philip Morris as part of the aggregate $10,000,000,000 initial payment
proposed to be made by the tobacco industry on the date federal
legislation implementing the terms of the above mentioned resolution (or
federal legislation implementing similar terms) is signed, such payment
will not be included in such calculation.
(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
Subsidiaries as of the end of such quarter and consolidated
statements of earnings of PM Companies and its 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 100 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
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; and
(v) such other information respecting the condition or
operations, financial or otherwise, of PM Companies or any Major
Subsidiary as any Lender through Citibank, as Administrative 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:
(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
32
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 10% 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. Consolidate with or merge into, or convey or
transfer its properties and assets substantially as an entirety to, any
Person, or permit any Subsidiary directly or indirectly owned by it to do
so, unless, immediately after giving effect thereto, no 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 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 Required Lenders.
(c) 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
any Advance when the same becomes due and payable; or any Borrower shall
fail to pay interest on any Advance, or PM Companies shall fail to pay any
fees payable under Section 2.04, within ten days after the same becomes
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), 5.02(b)
or 5.02(c), (ii) any term covenant or agreement contained in Section
5.02(a) if such failure shall remain unremedied for 15 days after written
notice thereof shall have been given to PM Companies by Citibank, as
Administrative Agent, or any Lender or (iii) any
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other term, covenant or agreement contained in this Agreement on its part
to be performed or observed if such failure shall remain unremedied for 30
days after written notice thereof shall have been given to PM Companies by
Citibank, as Administrative 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 $100,000,000 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 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 Required Lenders; or any Debt of any Borrower or PM Companies or any
Major Subsidiary which is outstanding in a principal amount of at least
$100,000,000 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 Required 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 60 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 of its property
constituting a substantial part of the property of PM Companies and its
Subsidiaries taken as a whole) 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
(f) Any judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against any Borrower or PM Companies or any
Major Subsidiary and there shall be any period of 45 consecutive days
during which a stay of enforcement of such unsatisfied judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any Borrower, PM Companies or any ERISA Affiliate shall incur,
or shall be reasonably likely to incur, liability in excess of
$500,000,000 in the aggregate as a result of one or more of the following:
(i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of any Borrower, PM Companies or any ERISA Affiliate from a
Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; provided, however, that no Event of Default under this
clause (g) shall be deemed to have occurred if the Borrower, PM Companies
or any ERISA Affiliate shall have made arrangements satisfactory to the
Lenders to discharge or otherwise satisfy such liability (including the
posting of a bond or other security); or
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(h) So long as any Subsidiary of PM Companies is a Designated
Subsidiary, the guaranty provided by PM Companies under Article VIII
hereof 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, Citibank, as Administrative Agent, (i) shall at the
request, or may with the consent, of the Required 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 Required 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 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 ADMINISTRATIVE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agents to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agents by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Administrative Agents shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that no Administrative Agent shall be required to take any
action that exposes such Administrative Agent to personal liability or that is
contrary to this Agreement or applicable law. Each of the Administrative Agents
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. Administrative Agents' Reliance, Etc. Neither the
Administrative Agents nor any of their directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agents: (i) may treat the Lender that made any
Advance as the holder of the Debt resulting therefrom until Citibank, as
Administrative 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 9.07; (ii) may consult with legal counsel (including counsel
for PM Companies or any Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of PM Companies or any Borrower or to
35
inspect the property (including the books and records) of PM Companies or such
Borrower; (v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank, Chase and Affiliates. With respect to its
Commitment and the Advances made by it, each of Citibank and Chase shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank and Chase in their individual capacities. Citibank and Chase and their
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, PM Companies, any Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of PM
Companies, any Borrower or any such Subsidiary, all as if Citibank and Chase
were not Administrative Agents 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 an Administrative Agent, the
Syndication Agent, the Documentation 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 any Administrative Agent, the
Syndication Agent, the Documentation 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 each
Administrative Agent (to the extent not reimbursed by PM Companies or the
Borrowers), ratably according to the respective principal amounts of the
Revolving Credit Advances then owing to each of them (or if no Revolving Credit
Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
such Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from such Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse such Administrative Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by such
Administrative 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 such
Administrative Agent is not reimbursed for such expenses by PM Companies or the
Borrowers. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by any Administrative Agent,
any Lender or a third party.
SECTION 7.06. Successor Administrative Agents. An Administrative
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
Required Lenders. Upon the resignation or removal of Citibank, as Administrative
Agent, Chase, as Administrative Agent, shall succeed to and become vested with
all the rights, powers, discretion, privileges and duties of Citibank, as
Administrative Agent, and Citibank, as Administrative Agent shall be
36
discharged from its duties and obligations under this Agreement. Upon any other
such resignation or removal which results in there being no Administrative Agent
hereunder, the Required Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative 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
Administrative Agent under this Agreement.
SECTION 7.07. Administrative Sub-Agent. The Administrative Sub-Agent
has been designated under this Agreement to carry out duties of Citibank, as
Administrative Agent. The Administrative Sub-Agent shall be subject to each of
the obligations in this Agreement to be performed by the Administrative
Sub-Agent, and each of the Borrowers and the Lenders agrees that the
Administrative Sub-Agent shall be entitled to exercise each of the rights and
shall be entitled to each of the benefits of Citibank, as Administrative Agent,
under this Agreement as relate to the performance of its obligations hereunder.
SECTION 7.08. Syndication and Documentation Agents. Credit Suisse
First Boston and Deutsche Bank AG, New York Branch have been designated as
Syndication Agent and Documentation Agent, respectively, under this Agreement,
but the use of such titles does not impose on either of them any duties or
obligations greater than those of any other Lender.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty. PM Companies 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, 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 Citibank, as Administrative Agent, or the Lenders in enforcing any
rights under the Guaranty.
SECTION 8.02. Guaranty Absolute. PM Companies 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 Citibank, as
Administrative Agent, or the Lenders with respect thereto. The liability of PM
Companies 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;
37
(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 Citibank, as Administrative 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) PM Companies 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 Citibank, as
Administrative 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) PM Companies 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 PM Companies'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 Citibank, as Administrative
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 PM Companies 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
Citibank, as Administrative Agent, and the Lenders and shall forthwith be paid
to Citibank, as Administrative 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. PM Companies 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.
SECTION 8.04. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (a) 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, (b) be binding upon PM Companies, its successors and
assigns, and (c) inure to the benefit of and be enforceable by the Lenders,
Citibank, as Administrative Agent, and their respective successors, transferees
and assigns.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any Borrower or PM
Companies therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Sections 3.01 and 3.02, (b) increase
the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Advances, or the number of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder, (f) release PM
Companies from any of its obligations under Article VIII or (g) amend this
Section 9.01; provided further that no waiver of the conditions specified in
Section 3.04 in connection with any Competitive Bid Borrowing shall be effective
unless consented to by all Lenders making Competitive Bid Advances as part of
such Competitive Bid Borrowing; and provided further that no amendment, waiver
or consent shall, unless in writing and signed by Citibank, as Administrative
Agent, in addition to the Lenders required above to take such action, affect the
rights or duties of Citibank, as Administrative Agent, under this Agreement or
any Revolving Credit Advance.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to any Borrower, at its address c/o Philip Morris Companies Inc., 120 Park
Avenue, New York, New York 10017, Attention: Treasurer; if to PM Companies in
its capacity as the guarantor under Article VIII, at its address at 120 Park
Avenue, New York, New York 10017, Attention: Secretary; if to any Initial
Lender, 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
Citibank, as Administrative Agent, at its address at Two Penns Way, Suite 200,
New Castle, Delaware 19720, Attention: Dave Meckler; or, as to any Borrower, PM
Companies or Citibank, as Administrative Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to PM Companies and Citibank, as Administrative Agent. All such
notices and communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, respectively, except that
notices and communications to Citibank, as Administrative Agent, pursuant to
Article II, III or VII shall not be effective until received by Citibank, as
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or Citibank, as Administrative Agent, to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (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
39
for administration related to the overhead of Citibank, as Administrative
Agent), modification and amendment of this Agreement and the documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for Citibank, as Administrative Agent, with
respect thereto and with respect to advising Citibank, as Administrative Agent,
as to its rights and responsibilities under this Agreement, and all costs and
expenses of the Lenders and Citibank, as Administrative Agent, if any
(including, without limitation, reasonable counsel fees and expenses of the
Lenders and Citibank, as Administrative 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 Eurocurrency Rate Advance, LIBO
Rate Advance or Local Rate Advance is made other than on the last day of the
Interest Period for such Advance or at its maturity, 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 9.07(a) or for any other reason, PM Companies shall, upon
demand by any Lender (with a copy of such demand to Citibank, as Administrative
Agent), pay to Citibank, as Administrative Agent, for the account of such Lender
any amounts required to compensate such Lender for any additional losses, costs
or expenses which it may reasonably incur as a result of such payment,
including, without limitation, any loss (excluding 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)(iii), 2.11, 2.14 and this
Section 9.04(b) shall survive the payment in full of principal and interest
hereunder.
(c) Each Borrower and PM Companies jointly and severally agree to
indemnify and hold harmless Citibank, as Administrative 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 PM Companies's entering
into this Agreement, or to any actions or omissions of any Borrower or PM
Companies, 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 whether or not an Indemnified Party is a party thereto
and whether or not such investigation, litigation or proceeding is brought by PM
Companies or any Borrower or any other Person; provided, however, that neither
any Borrower nor PM Companies 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 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize Citibank, as
Administrative 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 PM Companies or any Borrower against any and
all of the obligations of any Borrower or PM Companies now or hereafter existing
under this Agreement, 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
40
Borrower or PM Companies, as the case may be, after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of PM Companies, Citibank, as Administrative Agent,
Chase, as Administrative Agent, and each Lender and their respective successors
and assigns, except that neither any Borrower nor PM Companies shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by PM Companies upon at least five Business Days' notice to
such Lender and Citibank, as Administrative Agent, will assign to one or more
Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the
Revolving Credit Advances owing to it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than, except in the case of an
assignment made as a result of a demand by PM Companies pursuant to this Section
9.07(a), any Competitive Bid Advances owing to such Lender or any Competitive
Bid Notes held by it), (ii) the amount of 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 9.07(a) shall be
arranged by PM Companies after consultation with Citibank, as Administrative
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 9.07(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 Citibank,
as Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, provided that, if such assignment is made as a result of a demand by PM
Companies under this Section 9.07(a), PM Companies shall pay or cause to be paid
such $3,500 fee. 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 9.04) 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
41
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or PM
Companies or the performance or observance by any Borrower or PM Companies of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and 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 Citibank, as Administrative 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 Citibank, as
Administrative Agent, to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to Citibank, as
Administrative Agent, by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment,
Citibank, as Administrative 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.
(d) Citibank, as Administrative Agent, shall maintain at its address
referred to in Section 9.02 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, Citibank, as Administrative
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, any Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(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,
the Advances owing to it and any 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) PM Companies, the other Borrowers,
Citibank, as Administrative Agent, and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (iv) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement, or any consent to any departure by any Borrower or
PM Companies therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, 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
42
assignee or participant shall agree to preserve the confidentiality of any
confidential information relating to PM Companies received by it from such
Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. PM Companies
may at any time, and from time to time, by delivery to Citibank, as
Administrative Agent, of a Designation Agreement duly executed by PM Companies
and the respective Subsidiary and substantially in the form of Exhibit D hereto,
designate such Subsidiary as a "Designated Subsidiary" for purposes of this
Agreement and such Subsidiary shall thereupon become a "Designated Subsidiary"
for purposes of this Agreement and, as such, shall have all of the rights and
obligations of a Borrower hereunder. Citibank, as Administrative Agent, shall
promptly notify each Lender of each such designation by PM Companies and the
identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of the
indebtedness, liabilities and obligations under this Agreement of any Designated
Subsidiary then, so long as at the time no Notice of Revolving Credit Borrowing
or Notice of Competitive Bid Borrowing in respect of such Designated Subsidiary
is outstanding, such Subsidiary's status as a "Designated Subsidiary" shall
terminate upon notice to such effect from Citibank, as Administrative Agent, to
the Lenders (which notice Citibank, as Administrative Agent, shall give
promptly, and only upon its receipt of a request therefor from PM Companies).
Thereafter, the Lenders shall be under no further obligation to make any Advance
hereunder to such Designated Subsidiary.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York, except as referred to in Section 9.13.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures Citibank, as Administrative Agent,
could purchase Dollars with such other currency at Citibank's principal office
in London at 11:00 A.M. (London time) on the Business Day preceding that on
which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder in a Foreign Currency into Dollars, the parties
agree to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures Citibank, as Administrative Agent, could purchase such Foreign
Currency with Dollars at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(c) The obligation of any Borrower in respect of any sum due from it in
any currency (the "Primary Currency") to any Lender or Citibank, as
Administrative Agent, hereunder shall, notwithstanding any judgment in any other
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or
43
Citibank, as Administrative Agent (as the case may be), of any sum adjudged to
be so due in such other currency, such Lender or Citibank, as Administrative
Agent (as the case may be), may in accordance with normal banking procedures
purchase the applicable Primary Currency with such other currency; if the amount
of the applicable Primary Currency so purchased is less than such sum due to
such Lender or Citibank, as Administrative Agent (as the case may be), in the
applicable Primary Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or Citibank, as
Administrative Agent (as the case may be), against such loss, and if the amount
of the applicable Primary Currency so purchased exceeds such sum due to any
Lender or Citibank, as Administrative Agent (as the case may be), in the
applicable Primary Currency, such Lender or Citibank, as Administrative Agent
(as the case may be), agrees to remit to such Borrower such excess.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each Borrower (other than PM Companies) hereby agrees that service of process in
any such action or proceeding brought in any such New York State court or in
such federal court may be made upon PM Companies at its offices at 120 Park
Avenue, New York, New York 10017, Attention: Secretary (the "Process Agent") and
each Designated Subsidiary hereby irrevocably appoints the Process Agent its
authorized agent to accept such service of process, and agrees that the failure
of the Process Agent to give any notice of any such service shall not impair or
affect the validity of such service or of any judgment rendered in any action or
proceeding based thereon. Each Borrower hereby further irrevocably consents to
the service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid,
to such Borrower at its address specified pursuant to Section 9.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to serve legal process in any
other manner permitted by law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
(b) PM Companies hereby accepts its appointment as Process Agent and
agrees that (i) it will maintain an office in New York, New York through the
Termination Date and will give Citibank, as Administrative Agent, prompt notice
of any change of its address, (ii) it will perform its duties as Process Agent
to receive on behalf of each Designated Subsidiary and its property service of
copies of the summons and complaint and any other process which may be served in
any action or proceeding in any New York State or Federal court sitting in New
York City arising out of or relating to this Agreement and (iii) it will forward
forthwith to each Designated Subsidiary at its then current address copies of
any summons, complaint and other process which PM Companies receives in
connection with its appointment as Process Agent.
(c) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 9.13. Substitution of Currency. If any countries parties to
the Treaty on the European Economic and Monetary Union adopts the Euro in
substitution for its national currency in effect on the date hereof, the
regulations of the European Commission relating to the Euro shall apply to this
Agreement and the Notes. The
circumstances and consequences described in this Section 9.13 entitle none of
the Borrowers, PM Companies, any Agent nor any Lender to rescission, notice,
repudiation, adjustment or renegotiation of the terms and conditions of this
Agreement or the Notes or to raise other defenses or to request any compensation
claim, nor will they affect any of the other obligations of any Borrower or PM
Companies under this Agreement and the Notes.
SECTION 9.14. Confidentiality. None of the Agents nor any Lender
shall disclose any confidential information relating to PM Companies or any
Borrower to any other Person without the consent of PM Companies, other than (a)
to such Agent's or such Lender's affiliates and their officers, directors,
employees, agents and advisors and, as contemplated by Section 9.07(f), to
actual or prospective assignees and participants, and then, in each such case,
only on a confidential basis, provided, however, that such actual or prospective
assignee or participant shall have been made aware of this Section 9.14 and
shall have agreed to be bound by its provisions as if it were a party to this
Agreement, (b) as required by any law, rule or regulation or judicial process
and (c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking.
SECTION 9.15. Integration. This Agreement and the Notes represent
the agreement of PM Companies, the other Borrowers, the Administrative Agents
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agents, PM Companies, the other Borrowers or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the Notes
other than the matters referred to in Section 2.04(b).
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
----------------------------------------
Title:
CITIBANK, N.A., as Administrative Agent
By
----------------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By
----------------------------------------
Title:
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
By
----------------------------------------
Title:
By
----------------------------------------
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as
Documentation Agent
By
----------------------------------------
Title:
By
----------------------------------------
Title:
Initial Lenders
Commitment
$320,000,000.00 ABN AMRO BANK N.V., NEW YORK
BRANCH
By
----------------------------------------
Title:
$40,000,000.00 BANCA MONTE DEI PASCHI DI SIENA, S.p.A.
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$64,000,000.00 BANCA DI ROMA
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$120,000,000.00 BANCA COMMERICALE ITALIANA- NEW
YORK BRANCH
By
----------------------------------------
By
----------------------------------------
$80,000,000.00 BANCA POPOLARE DI MILANO
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$180,000,000.00 BANCO BILBAO VIZCAYA
By
----------------------------------------
Title:
$20,000,000.00 BANCO COMERCIAL PORTUGUES, SFE
By
----------------------------------------
Title:
$20,000,000.00 BANCO ESPIRITO SANTO E COMERICAL
By
----------------------------------------
Title:
$20,000,000.00 BANCO EXTERIOR DE ESPANA S.A.,
NEW YORK BRANCH
By
----------------------------------------
Title:
$140,000,000.00 BANK OF AMERICA NT&SA
By
----------------------------------------
Title:
$53,066,666.40 BANK BRUSSELS LAMBERT, NEW YORK BRANCH
By
----------------------------------------
Title:
$56,000,000.00 BANKBOSTON, N.A.
By
----------------------------------------
Title:
$8,000,000.00 BANK OF LOUISVILLE AND TRUST CO.
By
----------------------------------------
Title:
$120,000,000.00 THE BANK OF NEW YORK
By
----------------------------------------
Title:
$160,000,000.00 THE BANK OF TOKYO- MITSUBISHI, LTD,
NEW YORK BRANCH
By
----------------------------------------
Title:
$180,000,000.00 BANKERS TRUST COMPANY
By
----------------------------------------
Title:
$106,000,000.00 BANQUE PARIBAS
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$200,000,000.00 BANQUE NATIONALE DE PARIS
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$80,000,000.00 BERLINER BANK AG/ BB-KN
By
----------------------------------------
Title:
$40,000,000.00 CAISSE NATIONALE DE CREDIT AGRICOLE
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$96,000,000.00 CARIPLO-CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE SPA
By
----------------------------------------
Title:
$603,432,666.60 CITIBANK, N.A.
By
----------------------------------------
Title:
$603,432,666.60 THE CHASE MANHATTAN BANK
By
----------------------------------------
Title:
$100,000,000.00 CIBC INC.
By
----------------------------------------
Title:
$60,000,000.00 CORESTATES BANK, N.A.
By
----------------------------------------
Title:
$20,000,000.00 CREDIT COMMERICAL DE FRANCE
By
----------------------------------------
Title:
$20,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
By
----------------------------------------
Title:
$603,432,666.60 CREDIT SUISSE FIRST BOSTON
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$40,000,000.00 CREDITO ITALIANO, S.p.A
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$40,000,000.00 CRESTAR BANK
By
----------------------------------------
Title:
$200,000,000.00 THE DAI-ICHI KANGYO BANK, LTD
By
----------------------------------------
Title:
$64,000,000.00 DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$33,333,333.60 DEN NORSKE BANK ASA
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$603,432,666.60 DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$280,000,000.00 DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By
----------------------------------------
Title:
----------------------------------------
$40,000,000.00 FIRSTAR BANK MILWAUKEE, N.A.
By
----------------------------------------
Title:
$40,000,000.00 FIRST BANK NATIONAL ASSOCIATION
By
----------------------------------------
Title:
$92,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By
----------------------------------------
Title:
$72,000,000.00 FLEET NATIONAL BANK
By
----------------------------------------
Title:
$80,000,000.00 THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By
----------------------------------------
Title:
$120,000,000.00 GENERALE BANK
By
----------------------------------------
Title:
$200,000,000.00 ING BANK, N.V.
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$80,000,000.00 ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By
----------------------------------------
Title:
$29,200,000.00 M&I MARSHALL & ILSLEY BANK
By
----------------------------------------
Title:
$320,000,000.00 MARINE MIDLAND BANK
By
----------------------------------------
Title:
$85,333,333.60 NATIONAL AUSTRALIA BANK LIMITED
By
----------------------------------------
Title:
$168,000,000.00 NATIONSBANK, N.A.
By
----------------------------------------
Title:
$92,000,000.00 NORDDEUTSCHE LANDSBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH
By
----------------------------------------
Title:
$64,000,000.00 NORINCHUKIN BANK, NEW YORK BRANCH
By
----------------------------------------
Title:
$20,000,000.00 THE NORTHERN TRUST COMPANY
By
----------------------------------------
Title:
$92,000,000.00 PNC BANK, NATIONAL ASSOCIATION
By
----------------------------------------
Title:
$33,336,000.00 RZB FINANCE LLC
By
----------------------------------------
Title:
$160,000,000.00 THE SAKURA BANK, LIMITED
By
----------------------------------------
Title:
$80,000,000.00 THE SANWA BANK LIMITED
By
----------------------------------------
Title:
$20,000,000.00 STANDARD CHARTERED BANK
By
----------------------------------------
Title:
$34,000,000.00 STATE STREET BANK AND TRUST
COMPANY
By
----------------------------------------
Title:
$48,000,000.00 SVENSKA HANDELSBANKEN
By
----------------------------------------
Title:
$320,000,000.00 SOCIETE GENERALE FINANCE (IRELAND)
LIMITED
By
----------------------------------------
Title:
$80,000,000.00 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By
----------------------------------------
Title:
By
----------------------------------------
Title:
$136,000,000.00 WACHOVIA BANK, N.A.
By
----------------------------------------
Title:
$40,000,000.00 WELLS FARGO BANK
By
----------------------------------------
Title:
$20,000,000.00 WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By
----------------------------------------
Title:
$60,000,000.00 THE YASUDA TRUST & BANKING
COMPANY., LTD., NEW YORK BRANCH
By
----------------------------------------
Title:
$8,000,000,000 Total of the Commitments
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
__________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
__________ (the "Lender") for the account of its Applicable Lending Office on
the Termination Date (each as defined in the Credit Agreement referred to below)
the principal sum of U.S. $[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Revolving Credit Advances made by
the Lender to the Borrower pursuant to the 5-Year Credit Agreement dated as of
October 14, 1997 among Philip Morris Companies Inc., [the Borrower,] the Lender
and certain other lenders parties thereto, Citibank,N.A., as Administrative
Agent, The Chase Manhattan Bank, as Administrative Agent, Credit Suisse First
Boston, as Syndication Agent, and Deutsche Bank AG, New York Branch, as
Documentation Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Revolving Credit
Advance (i) in Dollars are payable in lawful money of the United States of
America to Citibank, as Administrative Agent, at its account maintained at Two
Penns Way, New Castle, Delaware, 19720, in same day funds and (ii) in any
Committed Currency are payable in such currency at the applicable Payment Office
in same day funds. Each Revolving Credit Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned or
the Equivalent thereof in one or more Committed Currencies, the indebtedness of
the Borrower resulting from each such Revolving Credit Advance being evidenced
by this Promissory Note, (ii) contains provisions for determining the Dollar
Equivalent of Revolving Credit Advances denominated in Committed Currencies and
(iii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
[NAME OF BORROWER]
By
----------------------------------------
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Principal Unpaid
Type of Advance in Interest Paid Principal Notation
Date Advance Relevant Currency Rate or Prepaid Balance Made By
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the 5-Year Revolving Credit Agreement
dated as of October 14, 1997 among Philip Morris Companies Inc., [the Borrower,]
the Lender and certain other lenders parties thereto, Citibank,N.A., as
Administrative Agent, The Chase Manhattan Bank, as Administrative Agent, Credit
Suisse First Boston, as Syndication Agent, and Deutsche Bank AG, New York
Branch, as Documentation Agent for the Lender and such other lenders (as amended
or modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined)), on _______________, 199_, the principal
amount of [U.S.$_______________][ for a Competitive Bid Advance in a Foreign
Currency, list currency and amount of such Advance].
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of
__________ to Citibank, N.A., as Administrative Agent, for the account of the
Lender at the office of _________________________, at _________________________
in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
-------------------------------------
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Philip Morris Companies Inc., refers to the 5-Year
Revolving Credit Agreement, dated as of October 14, 1997 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto and Citibank, N.A., as Administrative Agent, The Chase Manhattan Bank,
as Administrative Agent, Credit Suisse First Boston, as Syndication Agent, and
Deutsche Bank AG, New York Branch, as Documentation Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Revolving Credit Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Borrowing (the "Proposed Revolving
Credit Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________][for a Revolving Credit Borrowing in a
Committed Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
[(v) The name of the Borrower is __________.]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f) thereof (other
than clause (i) thereof)) and, if the Borrower is a Designated Subsidiary,
the representations and warranties of such Designated Subsidiary contained
in its Designation Agreement, are correct, before and after giving effect
to the Proposed Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
2
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
(C) if such Proposed Revolving Credit 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 PM
Companies'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 an transaction of the
type referred to in Section 5.02(b) of the Credit Agreement, the
statements in clause (B) above will be true and correct after giving
effect to such transaction or purchase; and
(D) the aggregate principal amount of the Proposed Revolving Credit
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the applicable unused Commitments of the
Lenders.
Very truly yours,
PHILIP MORRIS COMPANIES INC.
By
---------------------------------
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
____________________
____________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Philip Morris Companies Inc., refers to the 5-Year
Revolving Credit Agreement, dated as of October 14, 1997 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto and Citibank, N.A., as Administrative Agent, The Chase Manhattan Bank,
as Administrative Agent, Credit Suisse First Boston, as Syndication Agent, and
Deutsche Bank AG, New York Branch, as Documentation Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit
Agreement that the undersigned hereby requests a Competitive Bid Borrowing under
the Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Day count convention ________________________
(F) Interest Payment Date(s) ________________________
(G) [Currency] ________________________
(H) Name of Borrower ________________________
(I) Borrower's Account Location ________________________
(J) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement and, if the Borrower is a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained in
its Designation Agreement, are correct, before and after giving effect to
the Proposed Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
2
(c) the aggregate amount of the Proposed Competitive Bid Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of the
Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of
the Credit Agreement.
Very truly yours,
PHILIP MORRIS COMPANIES INC.
By
----------------------------------
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 5-Year Revolving Credit Agreement dated as
of October 14, 1997 (as amended or modified from time to time, the "Credit
Agreement") among Philip Morris Companies Inc., a Virginia corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank,
N.A., as Administrative Agent, The Chase Manhattan Bank, as Administrative
Agent, Credit Suisse First Boston, as Syndication Agent, and Deutsche Bank AG,
New York Branch, as Documentation Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto. Each of the Assignor and the Assignee represents and warrants
that it is authorized to execute and deliver this Assignment and Acceptance.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of PM Companies or any
Borrower or the performance or observance by PM Companies or any Borrower of any
of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit 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 Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon Citibank, as Administrative Agent, any other 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 Credit Agreement; (iii) confirms that it
is an Eligible Assignee; (iv) appoints and authorizes Citibank, as
Administrative Agent, and the other Agents to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to Citibank, as Administrative Agent, and the other Agents, as the
case may be, by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to Citibank, as Administrative Agent, for acceptance and
recording by Citibank, as Administrative Agent. The effective date for this
Assignment and Acceptance (the "Effective Date") shall be the date of acceptance
hereof by Citibank, as Administrative Agent, unless otherwise specified on
Schedule 1 hereto.
2
5. Upon such acceptance and recording by Citibank, as Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by Citibank, as Administrative
Agent, from and after the Effective Date, Citibank, as Administrative Agent,
shall make all payments under the Credit Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
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.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $__________
Effective Date*: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
--------------------------------------
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
--------------------------------------
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted this
__________ day of _______________, 199_
CITIBANK, N.A., as Administrative Agent
By
------------------------------------
Title:
- ----------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to Citibank, as
Administrative Agent.
2
[Approved this __________ day
of _______________, 199_
[NAME OF BORROWER]
By ]*
---------------------------------
Title:
- ----------
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank, N.A.
as Administrative Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 5-Year Credit Agreement dated as of October
14, 1997 among Philip Morris Companies Inc. ("PM Companies"), certain other
borrowers parties thereto, the Lenders named therein, Citibank, N.A., as
Administrative Agent, The Chase Manhattan Bank, as Administrative Agent, Credit
Suisse First Boston, as Syndication Agent, and Deutsche Bank AG, New York
Branch, as Documentation Agent, for said Lenders (the "Credit Agreement"). Terms
used herein and defined in the Credit Agreement shall have the respective
meanings ascribed to such terms in the Credit Agreement.
Please be advised that PM Companies hereby designates its
undersigned Subsidiary, ____________ ("Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of
______________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the Designated Subsidiary's charter or
by-laws or (ii) any law, rule, regulation or order of any court or
governmental agency or 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 the Designated
Subsidiary of this Designation Agreement, the Credit Agreement or the
Notes to be delivered by it.
(d) This Designation Agreement is, and the Notes to be delivered by
the Designated Subsidiary when delivered will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable against the
Designated Subsidiary in accordance with their respective terms, subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting
2
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 Designated Subsidiary or any of its Subsidiaries before any court,
governmental agency or arbitrator which purports to affect the legality,
validity or enforceability of this Designation Agreement, the Credit
Agreement or any Note of the Designated Subsidiary.
Very truly yours,
PHILIP MORRIS COMPANIES INC.
By
------------------------------
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By
------------------------------
Name:
Title:
EXHIBIT E-1 - FORM OF
OPINION OF COUNSEL
FOR PM COMPANIES
[Letterhead of Hunton & Williams]
[Effective Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of October 14, 1997
among Philip Morris Companies Inc.,
said Lenders and Citibank, N.A., as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Philip Morris Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of
the 5-Year Revolving Credit Agreement, dated as of October 14, 1997 (the "Credit
Agreement"), among Philip Morris Companies Inc. ("PM Companies"), the Lenders
parties thereto and Citibank, N.A., as Administrative Agent, The Chase Manhattan
Bank, as Administrative Agent, Credit Suisse First Boston, as Syndication Agent,
and Deutsche Bank AG, New York Branch, as Documentation Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
We have acted as counsel for PM Companies in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined:
(1) The Credit Agreement.
(2) The documents furnished by PM Companies pursuant to Article III
of the Credit Agreement.
(3) The Articles of Incorporation of PM Companies and all amendments
thereto (the "Charter").
(4) The by-laws of PM Companies and all amendments thereto (the
"By-laws").
We have also examined the originals, or copies certified to our satisfaction, of
such corporate records of PM Companies, certificates of public officials and of
officers of PM Companies, and agreements, instruments and other documents, as we
have deemed necessary as a basis for the opinions expressed below. 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 or
its officers or of public officials. We have assumed the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the Initial
Lenders and Citibank, as Administrative Agent.
Our opinions expressed below are limited to the law of the State of
New York, the Commonwealth of Virginia and the Federal law of the United States.
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 the State of Virginia.
2. The execution, delivery and performance by PM Companies of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within PM Companies's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to PM Companies (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) to the best of our knowledge, any contractual or legal restriction
binding on or affecting PM Companies. The Credit Agreement and any Notes
delivered on the date hereof have been duly executed and delivered on
behalf of PM Companies.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
PM Companies of the Credit Agreement and the Notes.
4. The Credit Agreement is the legal, valid and binding obligation
of PM Companies enforceable against PM Companies in accordance with its
terms. The Notes issued on the date hereof are the legal, valid and
binding obligations of PM Companies, enforceable against PM Companies in
accordance with their respective terms.
5. PM Companies directly or indirectly owns 100% of the capital
stock of Philip Morris.
The opinion set forth in paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of equity and any
implied covenant of good faith and fair dealing.
Very truly yours,
EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR PM COMPANIES
[Effective Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of October 14, 1997
among Philip Morris Companies Inc.,
said Lenders and Citibank, N.A., as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Philip Morris Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of
the 5-Year Revolving Credit Agreement, dated as of October 14, 1997 (the "Credit
Agreement"), among Philip Morris Companies Inc. ("PM Companies"), the Lenders
parties thereto and Citibank, N.A., as Administrative Agent, The Chase Manhattan
Bank, as Administrative Agent, Credit Suisse First Boston, as Syndication Agent,
and Deutsche Bank AG, New York Branch, as Documentation Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
I have acted as counsel for PM Companies in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined originals, or copies certified
to our satisfaction, of such corporate records of PM Companies, certificates of
public officials and of officers of PM Companies, and agreements, instruments
and other documents, as I have deemed necessary as a basis for the opinions
expressed below. As to questions of fact material to such opinions, I have, when
relevant facts were not independently established by me, relied upon
certificates of PM Companies or its officers or of public officials.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the opinion that there is, to the best of my
knowledge, (i) no pending or threatened action or proceeding against PM
Companies or any of its Subsidiaries before any court, governmental agency or
arbitrator (a "Proceeding") that purport to affect the legality, validity,
binding effect or enforceability of the Credit Agreement or any of the Notes or
the consummation of the transactions contemplated thereby, and (ii) except for
Proceedings disclosed in the Annual Report on Form 10-K of PM Companies for the
fiscal year ended December 31, 1996, its Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997, its Current Reports on Form 8-K
dated June 20, 1997, June 25, 1997, July 2, 1997 and August 25, 1997, any
Current Reports on Form 8-K filed subsequent to August 25, 1997 or, with respect
to events occurring after the date of the most recent such document, a
certificate delivered to the Lenders and attached hereto, there are no
Proceedings that are likely to have a materially adverse effect upon the
financial condition or operations of PM Companies and its Subsidiaries taken as
a whole.
Very truly yours,
EXHIBIT F - FORM OF
OPINION OF COUNSEL
FOR DESIGNATED SUBSIDIARY
[Effective Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of October 14, 1997
among Philip Morris Companies Inc.,
said Lenders and Citibank, N.A., as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Philip Morris Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(e) of the
5-Year Revolving Credit Agreement, dated as of October 14, 1997 (the "Credit
Agreement"), among Philip Morris Companies Inc. ("PM Companies"), the Lenders
parties thereto and Citibank, N.A., as Administrative Agent, The Chase Manhattan
Bank, as Administrative Agent, Credit Suisse First Boston, as Syndication Agent,
and Deutsche Bank AG, New York Branch, as Documentation Agent for said Lenders.
Terms defined in the Credit Agreement are used herein as therein defined.
We have acted as counsel for __________ (the "Designated
Subsidiary") in connection with the preparation, execution and delivery of the
Designation Agreement.
In that connection, we have examined:
(1) The Designation Agreement.
(2) The Credit Agreement.
(3) The documents furnished by the Designated Subsidiary pursuant to
Article III of the Credit Agreement.
(4) The [Articles] [Certificate] of Incorporation of the Designated
Subsidiary and all amendments thereto (the "Charter").
(5) The by-laws of the Designated Subsidiary and all amendments
thereto (the "By-laws").
We have also examined the originals, or copies certified to our satisfaction, of
such corporate records of the Designated Subsidiary, certificates of public
officials and of officers of the Designated Subsidiary, and agreements,
instruments and other documents, as we have deemed necessary as a basis for the
opinions expressed below. As to questions of fact material to such opinions, we
have, when relevant facts were not independently established by us, relied upon
certificates of the Designated Subsidiary or its officers or of public
officials. We have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Initial Lenders and Citibank, as
Administrative Agent.
2
Based upon the foregoing and upon such investigation as we have
deemed necessary, we are of the following opinion:
1. The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of ____________.
2. The execution, delivery and performance by the Designated
Subsidiary of the Designation Agreement, the Credit Agreement and the
Notes to be delivered by it, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Designated Subsidiary (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) to the best of our knowledge, any contractual or legal
restriction binding on or affecting the Designated Subsidiary. The
Designation Agreement, the Credit Agreement and the Notes delivered by the
Designated Subsidiary on the date hereof have been duly executed and
delivered on behalf of the Designated Subsidiary.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Designated Subsidiary of the Designation Agreement, the Credit
Agreement and the Notes delivered by the Designated Subsidiary.
4. The Designation Agreement and the Credit Agreement are the legal,
valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms. The Notes issued on the date hereof by the Designated Subsidiary
are the legal, valid and binding obligations of the Designated Subsidiary,
enforceable against the Designated Subsidiary in accordance with their
respective terms.
5. There is, to the best of my knowledge, no pending or threatened
action or proceeding against the Designated Subsidiary or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the legality, validity, binding effect or enforceability
of the Designation Agreement, the Credit Agreement or any of the Notes
delivered by the Designated Subsidiary or the consummation of the
transactions contemplated thereby.
The opinion set forth in paragraph 4 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar law affecting creditors'
rights generally and to the effect of general principles of equity and any
implied covenant of good faith and fair dealing.
Very truly yours,
EXHIBIT G
FORM OF OPINION OF
COUNSEL FOR CITIBANK,
AS ADMINISTRATIVE AGENT
[Letterhead of Shearman & Sterling]
October __, 1997
To the Initial Lenders party to the
Credit Agreement referred
to below and to Citibank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as
Administrative Agent, in connection with the preparation, execution and delivery
of the 5-Year Credit Agreement dated as of October 14, 1997 (the "Credit
Agreement"), among Philip Morris Companies, Inc., a Virginia corporation (the
"Borrower"), and each of you (each a "Lender"). Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined a counterpart of the Credit
Agreement executed by the Borrower and, to the extent relevant to our opinion
expressed below, the other documents delivered by the Borrower pursuant to
Section 3.01 of the Credit Agreement.
In our examination of the Credit Agreement and such other documents,
we have assumed, without independent investigation (a) the due execution and
delivery of the Credit Agreement by all parties thereto, (b) the genuineness of
all signatures, (c) the authenticity of the originals of the documents submitted
to us and (d) the conformity to originals of any documents submitted to us as
copies.
In addition, we have assumed, without independent investigation,
that (i) the Borrower is duly organized and validly existing under the laws of
the jurisdiction of its organization and has full power and authority (corporate
and otherwise) to execute, deliver and perform the Credit Agreement and the
Notes and (ii) the execution, delivery and performance by the Borrower of the
Credit Agreement have been duly authorized by all necessary action (corporate or
otherwise) and do not (A) contravene the certificate of incorporation, bylaws or
other constituent documents of the Borrower, (B) conflict with or result in the
breach of any document or instrument binding on the Borrower or (C) violate or
require any governmental or regulatory authorization or other action under any
law, rule or regulation applicable to the Borrower other than New York law or
United States federal law applicable to borrowers generally or, assuming the
correctness of the Borrower's statements made as representations and warranties
in Section 4.01(c) of the Credit Agreement, applicable to the Borrower. We have
also assumed that the Credit Agreement is the legal, valid and binding
obligation of each Lender, enforceable against such Lender in accordance with
its terms.
4
Based upon the foregoing examination and assumptions and upon such
other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that the Credit Agreement
is the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms.
Our opinion above is subject to the following qualifications:
(i) Our opinion above is subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights generally.
(ii) Our opinion above is also 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).
(iii) We express no opinion as to the enforceability of the
indemnification provisions set forth in Section 9.04 of the Credit
Agreement to the extent enforcement thereof is contrary to public
policy regarding the exculpation of criminal violations, intentional
harm and acts of gross negligence or recklessness.
(iv) Our opinion above is limited to the law of the State of
New York and the federal law of the United States of America 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 a jurisdiction other than the State of
New York wherein any Lender may be located or wherein enforcement of
the Credit Agreement or any of the Notes may be sought that limits
the rates of interest legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to any
Person that becomes a Lender in accordance with the provisions of the Credit
Agreement. Any such Lender may rely on the opinion expressed above as if this
opinion letter were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other Lender who is permitted
to rely on the opinion expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind including any change of
law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any Lender relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this opinion letter at
such time.
Very truly yours,