FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1994.
0R
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission File Number 1-644-2
COLGATE-PALMOLIVE COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 13-1815595
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
300 PARK AVENUE, NEW YORK, NEW YORK 10022
(Address of principal executive offices) (Zip Code)
(212) 310-2000
(Registrant's telephone number, including area code)
NO CHANGES
(Former name, former address, and former fiscal year, if changed since
last report).
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the issuers
classes of common stock, as of the latest practical date:
Class Shares Outstanding Date
Common, $1.00 par value 145,832,234 July 29, 1994
Total number of sequentially numbered pages in this filing,
including exhibits thereto .
PART I. FINANCIAL INFORMATION
COLGATE-PALMOLIVE COMPANY
CONDENSED CONSOLIDATED STATEMENT OF INCOME
(Dollars in Millions Except Per Share Amounts)
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
1994 1993 1994 1993
Net sales $1,891.1 $1,775.1 $3,661.1 $3,477.8
Cost of Sales 988.4 923.9 1,896.3 1,811.8
Gross profit 902.7 851.2 1,764.8 1,666.0
Selling, general and administrative
expenses 671.1 622.5 1,282.4 1,207.8
Interest expense 27.7 15.7 54.7 32.9
Interest income (11.9) (5.4) (18.3) (11.4)
686.9 632.8 1,318.8 229.3
Income before taxes 215.8 218.4 446.0 436.7
Provision for income taxes 73.3 76.0 153.9 153.5
Income before changes in 142.5 142.4 292.1 283.2
accounting
Cumulative effect on prior years
of accounting changes - - - (358.2)
Net income (loss) $ 142.5 $ 142.4 $ 292.1 $ (75.0)
Earnings per common shares:
Primary:
Before changes in accounting $ .93 $ .86 $ 1.91 $ 1.71
Cumulative effect on prior
years of accounting changes - - - (2.25)
Net income (loss) $ .93 $ .86 $ 1.91 $ (.54)
Assuming full dilution:
Before changes in accounting $ .87 $ .81 $ 1.78 $ 1.61
Cumulative effect on prior
years of accounting
changes - - - (2.06)
Net income (loss) $ .87 $ .81 $ 1.78 $ (.45)
Dividends declared per common $ - $ - $ .72 $ .62
share*:
* Includes two dividend declarations in the six month periods.
See Notes to Condensed Consolidated Financial Statements.
COLGATE-PALMOLIVE COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
(Dollars in Millions)
(Unaudited)
ASSETS
June 30, December 31,
1994 1993
Current Assets:
Cash and cash equivalents $ 152.5 $ 144.1
Marketable securities 86.3 67.1
Receivables (less allowance for
doubtful accounts of $25.5
and $24.9) 1,075.0 988.3
Inventories 750.3 678.0
Other current assets 233.2 192.9
2,297.3 2,070.4
Property, Plant and Equipment:
Cost 2,986.1 2,820.2
Less: Accumulated depreciation 1,121.5 1,053.9
1,864.6 1,766.3
Goodwill and other intangible
assets (less accumulated
amortization of $178.9 and
$151.2) 1,592.7 1,589.0
Other assets 346.0 335.5
$6,100.6 $5,761.2
See Notes to Condensed Consolidated Financial Statements.
COLGATE-PALMOLIVE COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
(Dollars in Millions Except per Share Amounts)
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
June 30, December 31,
1994 1993
Current Liabilities:
Notes and loans payable $ 175.0 $ 169.4
Current portion of long-term
debt 7.9 15.5
Accounts payable 650.2 599.3
Accrued income taxes 100.9 59.4
Other accruals 515.5 550.4
1,449.5 1,394.0
Long-term debt 1,820.0 1,532.4
Deferred income taxes 283.9 266.2
Other liabilties 721.0 693.6
Shareholder's Equity:
Preferred Stock 411.1 414.3
Common Stock 183.2 183.2
Additional paid-in capital 1,001.7 1,000.9
Retained earnings 2,338.6 2,163.4
Cumulative foreign currency
translation adjustments (377.3) (372.9)
3,557.3 3,388.9
Unearned compensation (387.1) (389.9)
Treasury stock, at cost (1,344.0) (1,124.0)
1,826.2 1,875.0
$6,100.6 $ 5,761.2
See Notes to Condensed Consolidated Financial Statements.
COLGATE-PALMOLIVE COMPANY
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Dollars in Millions)
(Unaudited)
Six Months Ended
June 30,
1994 1993
Operating Activities:
Net cash provided by operating $271.0 $271.3
activities
Investing Activities:
Capital expenditures (155.2) (151.2)
Payments for acquisitions, net of
cash acquired (39.3) -
(Purchase) Sale of marketable
securities (19.1) 31.8
Other, net 10.6 38.5
Net cash used for investing
activities (203.0) (80.9)
Financing Activities:
Repayment of debt (39.1) (91.2)
Proceeds from issuance of debt 323.2 215.9
Repurchase of common stock (226.5) (186.4)
Dividends paid (116.9) (109.3)
Other, net (0.5) 18.8
Net cash used for financing
activities (59.8) (152.2)
Effect of exchange rate changes on
cash and cash equivalents 0.2 (5.1)
Net increase in cash and cash
equivalents 8.4 33.1
Cash and cash equivalents at
beginning of period 144.1 117.9
Cash and cash equivalents at end
of period $152.5 $151.0
See Notes to Condensed Consolidated Financial Statements.
COLGATE-PALMOLIVE COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in Millions Except Per Share Amounts)
(Unaudited)
1. The condensed consolidated financial statements reflect all
normal recurring adjustments which, in management's opinion,
are necessary for a fair presentation of the results for
interim periods. Results of operations for the interim periods
may not be representative of results to be expected for a
full year.
2. Provision for certain expenses, including income taxes,
media advertising, consumer promotion and new product
introductory costs, are based on full year assumptions. Such
expenses are charged to operations in the year incurred and
are included in the accompanying condensed consolidated
financial statements in proportion with the passage of time or
with estimated annual tax rates or annual sales.
3. Inventories by major classes were as follows:
June 30, December 31,
1994 1993
Raw material and supplies $ 270.9 $ 250.0
Work-in-process 43.0 28.7
Finished goods 436.4 399.3
$ 750.3 $ 678.0
4. Primary earnings per share are determined by dividing net
income, after deducting dividends on preferred stock, net of
related tax benefits, by the weighted average number of common
shares outstanding. Fully diluted earnings per common share are
calculated assuming the conversion of all potentially
dilutive securities, including convertible preferred stock and
outstanding options. This calculation also assumes
reduction of available income by pro forma ESOP replacement
funding, net of income taxes.
5. Effective January 1, 1994, the Company adopted Statement of
Financial Accounting Standards (SFAS) No. 115, "Accounting for
Certain Investments in Debt and Equity Securities," which
addresses the accounting and reporting for investments in equity
securities that have readily determinable fair values and
for all investments in debt securities. The effect of adoption
had no impact on results of operations or cash flows and was not
material to financial condition. In the prior year, the Company
adopted SFAS No. 106, Other Postretirement Benefits, SFAS No.
109, Income Taxes and SFAS No. 112, Postemployment Benefits. A
charge of $358.2 was recorded in the 1993 first quarter.
6. Reference is made to the Company's Annual Report on Form 10-K
filed with the Securities and Exchange Commission for the year
1993 for a complete set of financial notes including the
Company's significant accounting policies.
COLGATE-PALMOLIVE COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(Dollars in Millions Except Per Share Amounts)
Results of Operations
Worldwide sales reached $1,891.1 in the 1994 second quarter, a 7%
increase versus the 1993 second quarter, reflecting overall volume
gains of 9%. Sales would have increased 9% excluding the negative
impact of foreign currency translation.
Sales in the Oral, Personal and Household Care segment were $1,672.9,
an increase of 6% from the 1993 second quarter. Strong sales
increases in the Latin American, Asian, and European regions, more
than offset lower levels in the United States. Colgate-Latin America
achieved sales growth of 11% on unit volume growth of 10%.
Contributing to this region's growth were excellent results in Mexico
and the Dominican Republic as well as geographic expansion, which more
than offset declines due to soft economies in Brazil and Venezuela.
Sales in the Colgate-Asia/Africa region were 27% higher than the prior
year, on volume gains of 24%. Excluding the effects of a mid-1993
consolidation of the Company's Indian operations, results in
Asia/Africa increased a solid 9%, on 6% volume growth led by double
digit volume growth in Australia, South Africa and Malaysia. Sales
for Colgate-Europe improved 8% compared with 1993, on volume growth
of 16%; augmenting the 11% growth in the base business was an additional
5% from strategic acquisitions. Excluding foreign exchange declines,
sales in this region would have increased 11%. Four of Colgate's
largest subsidiaries--France, Italy, Spain and the United Kingdom, all
reported sales increases in excess of 10% on strong volume growth.
Inventory reductions by retailers in the US were the primary cause for
the 9% lower volume in Colgate-North America as well as the 13%
decline in sales.
Sales in the Specialty Marketing segment increased 12% on volume
growth of 9% led by Hill's Pet Nutrition with a sales increase of 19%
on volume growth of 16%. Contributors to the significant volume gains
were Hill's international operations, notably Europe and Asia. At the
end of the quarter, Hill's disposed of its veterinary drug
distribution business at approximately book value. After the close of
the second quarter, Colgate also entered into an agreement to sell its
Princess House subsidiary which resulted in an aftertax loss of $5.2. These
non-core businesses both had lower sales and unit volume during the
quarter.
Worldwide sales for the first half of 1994 increased 5% to $3,661.1
from $3,477.8 in the same period of 1993, on 8% volume growth. Sales
would have been up 8% excluding the impact of foreign currency
translation.
COLGATE-PALMOLIVE COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(Dollars in Millions Except Per Share Amounts)
Oral, Personal and Household Care sales increased 5% to $3,252.2 in
the 1994 first half, on volume gains of 8%. Within this segment,
Colgate-Latin America sales increased 13%, led by strong performances
in Mexico, Colombia and the Dominican Republic. Colgate-Asia/Africa
increased sales 24% on volume growth of 23%. Excluding the Indian
consolidation, this region's sales increase of 8% was primarily due to
strong growth in Australia, South Africa and Malaysia. Sales in
Colgate-Europe increased 2%, but would have increased 7% if not for
foreign currency declines. Volume gains totaling 9% were primarily
due to increases in Italy, Spain, France, and the United Kingdom,
augmented by strategic brand acquisitions. Excluding acquisitions,
this region's sales were down 2%, due primarily to foreign exchange,
on volume growth of 4%. Colgate-North America sales and volume
declined 9% and 3%, respectively, when compared with the prior year
due primarily to trade inventory reductions.
Specialty Marketing sales for the 1994 first half increased 5% on
volume growth of 4%. Sales growth of 12% at Hill's Pet Nutrition was
partially offset by a decline in the other two businesses within the
segment. As discussed above, the veterinary drug distribution
business was disposed of during the 1994 second quarter and Princess
House was sold after the second quarter ended.
Gross profit margin increased for Colgate-Latin America, Colgate-
Asia/Africa and Colgate-Europe as well as for Hill's Pet Nutrition.
These improvements in large part offset the impact of Colgate-North
America's lower gross profit, so that the worldwide gross profit for
the 1994 second quarter declined slightly to 47.7% from 48.0%. Gross
profit for the 1994 first half increased to 48.2% from 47.9%.
Selling, general and administrative expenses increased as a percentage
of sales to 35.5% in 1994 from 35.1% in 1993 in the second quarter and
to 35.0% from 34.7% in the first half. This increase is directly
related to advertising spending which grew in absolute dollar terms
while also growing as a percentage of sales to 12.8% from 12.0% in the
second quarter and to 12.5% from 11.9% for the first half. Earnings
before interest and taxes (EBIT) increased 1.3% to $231.6 in the 1994
second quarter, and 5.3% to $482.4 for the 1994 first half versus the
comparable periods in 1993.
Interest expense, net of interest income, increased to $15.8 in the
1994 second quarter from $10.3 in 1993, and to $36.4 in the 1994 first
half from $21.5, reflecting increased levels of debt incurred
primarily in connection with the Company's share repurchase program.
This program commenced during the 1993 second quarter and has
continued throughout the first and second quarters of 1994.
The effective tax rates for the second quarter and first half of 1994
of 34.0% and 34.5% were down slightly from the effective rates for the
same periods in 1993 of 34.8% and 35.1%, respectively, due to
continued implementation of the Company's global tax savings
strategies. The Company's current estimate of its full year 1994
effective income tax rate is consistent with the 1993 full year rate
of 34.5%.
COLGATE-PALMOLIVE COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(Dollars in Millions Except Per Share Amounts)
Net income for the 1994 second quarter of $142.5 was essentially flat
when compared with 1993 results excluding the impact of a one-time
mandatory accounting change. Earnings per share for the 1994 second
quarter increased 8% to $.93, reflecting 8% fewer average shares
outstanding as a result of Company's share repurchase program. For
the first half, net income increased 3% to $292.1 and earnings per
share rose 12% to $1.91 excluding the 1993 mandated accounting change.
Included in 1994 net income is a one-time charge of $5.2 or $.04 per
share related to the sale of a non-core business, Princess House.
Excluding the charge, earnings for the quarter increased 4% to $147.7
with earnings per share rising 13% to $.97, and earnings for the first
half increased 5% to $297.3 with earnings per share rising 14% to
$1.95.
Liquidity and Capital Resources
Working capital at June 30, 1994 was $847.8 as compared with $676.4 at
December 31, 1993. The current ratio improved to 1.6 at June 30, 1994
from 1.5 at December 31, 1993. At June 30, 1994, commercial paper
outstanding was $666.1 which is classified as long-term due to the
Company's intent and ability to refinance these obligations on a long-
term basis.
During the second quarter of 1994, the Company entered into credit
agreements totaling $750 replacing credit agreements then in place.
Included in this total is a $500 revolving credit facility that
provides for general corporate borrowings and expires in April 1999.
In May 1994, the Company filed a shelf registration for $500 of debt
securities. During the second quarter, $208 of medium-term notes were
issued under this registration.
In keeping with the Company's ongoing program to repurchase common
shares in the open market and private transactions to achieve its
targeted capital structure and to provide for employee benefit plans,
aggregate open market repurchases through June 30, 1994, approximated
4 million shares with a total purchase price of $222.5.
Reference should be made to the 1993 Annual Report on Form 10-K for
additional information regarding available sources of liquidity and
capital.
PART II. OTHER INFORMATION
COLGATE-PALMOLIVE COMPANY
Item 1.Legal Proceedings
On April 5, 1994, Region V of the United States Environmental Protection
Agency (the "Region") issued to a Company plant in Jeffersonville,
Indiana a Findings of Violations and Order for Compliance under
Section 309 (a) of the Clean Water Act (the "Order"). The Order,
based in part on information supplied by the plant, stated that the
plant, at certain times in late 1993 and early 1994, had discharged
waste water containing substances in excess of amounts permitted by
its National Pollutant Discharge Elimination System Permit (the
"Permit"). The Order requires that the Plant submit certain
information and take certain actions to provide the Region
assurance that the plant will comply with the Permit. The plant is
complying with the Order.
On June 13, 1994, the Jeffersonville plant also received from Atlantic
States Legal Foundation, Inc., a public interest group, a notice of its
intention to bring a related citizen's suit under Section 505(b) of
the Federal Water Pollution Control Act (the "Act"). The Company
intends to respond to this notice in accordance with the Act.
Reference is made to Note 15 to the consolidated financial
statements on page 33 of the registrant's Annual Report on Form 10-K
for the year ended December 31, 1993.
Item 6.Exhibits and Reports on Form 8-K
(a) Exhibits:
Exhibit 10.O. U.S. $500,000,000 Five Year Credit
Agreement dated as of April 8, 1994.
EXHIBIT 10.O
CONFORMED COPY
U.S. $500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of April 8, 1994
Among
COLGATE-PALMOLIVE COMPANY
as Borrower
-- --------
and
THE BANKS NAMED HEREIN
as Banks
-- -----
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . 1
---------------------
1.02. Computation of Time Periods . . . . . . . . . . . . . 15
---------------------------
1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . 15
----------------
2.01. The A Advances . . . . . . . . . . . . . . . . . . . . 15
--------------
2.02. Making the A Advances . . . . . . . . . . . . . . . . 16
---------------------
2.03. The B Advances . . . . . . . . . . . . . . . . . . . . 18
--------------
2.04. Commitment and Facility Fees . . . . . . . . . . . . . 21
----------------------------
2.05. Reduction of the Commitments . . . . . . . . . . . . . 22
----------------------------
2.06. Repayment of A Advances . . . . . . . . . . . . . . . 22
-----------------------
2.07. Interest on A Advances . . . . . . . . . . . . . . . . 22
----------------------
2.08. Additional Interest on Eurodollar Rate Advances . . . 24
-----------------------------------------------
2.09. Interest Rate Determination . . . . . . . . . . . . . 24
---------------------------
2.10. Prepayments of A Advances . . . . . . . . . . . . . . 25
-------------------------
2.11. Increased Costs, Etc . . . . . . . . . . . . . . . . . 26
--------------------
2.12. Payments and Computations . . . . . . . . . . . . . . 27
-------------------------
2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 28
-----
2.14. Sharing of Payments, Etc . . . . . . . . . . . . . . . 31
------------------------
3.01. Condition Precedent to Initial Advances . . . . . . . 32
---------------------------------------
3.02. Conditions Precedent to Each A Borrowing . . . . . . . 33
------------------------------ ---------
3.03. Conditions Precedent to Each B Borrowing . . . . . . . 34
----------------------------------------
4.01. Representations and Warranties of the Borrower . . . . 35
----------------------------------------------
5.01. Affirmative Covenants . . . . . . . . . . . . . . . . 38
---------------------
5.02. Negative Covenants . . . . . . . . . . . . . . . . . . 40
------------------
6.01. Events of Default . . . . . . . . . . . . . . . . . . 45
-----------------
7.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . 48
---------------
7.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . 48
------------
ii
7.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . 49
-------------------
7.04. Costs, Expenses, Etc . . . . . . . . . . . . . . . . . 49
--------------------
7.05. Right of Set-off . . . . . . . . . . . . . . . . . . . 50
----------------
7.06. Binding Effect; Assignment by Borrower . . . . . . . . 50
--------------------------------------
7.07. Assignments and Participations by Lenders . . . . . . 51
-----------------------------------------
7.08. Change of Control . . . . . . . . . . . . . . . . . . 54
-----------------
7.09. Mitigation of Adverse Circumstances . . . . . . . . . 55
-----------------------------------
7.10. Governing Law . . . . . . . . . . . . . . . . . . . . 56
-------------
7.11. Execution in Counterparts . . . . . . . . . . . . . . 56
-------------------------
7.12 Jurisdiction, Etc . . . . . . . . . . . . . . . . . . . 56
-----------------
7.13. Waiver of Jury Trial . . . . . . . . . . . . . . . . . 56
--------------------
iv
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Opinion of Special New York
Counsel to the Lenders
Exhibit F - Form of Guarantee of Subsidiary
FIVE YEAR CREDIT AGREEMENT
Dated as of April 8, 1994
COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower") and the banks (the "Banks") listed on the signature
-------- -----
pages hereof, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
---------------------
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"A Advance" means an advance by a Lender to the
---------
Borrower as part of an A Borrowing and refers to an Adjusted
CD Rate Advance, a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
----
"A Borrowing" means a borrowing consisting of
-----------
simultaneous A Advances of the same Type and having the same
Interest Period made by each of the Lenders pursuant to
Section 2.01.
"A Note" means a promissory note of the Borrower
------
payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Adjusted CD Rate" means, for any Interest Period for
----------------
each Adjusted CD Rate Advance comprising part of the same A
Borrowing, an interest rate per annum equal to the sum
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such sum is not such a multiple) of:
(a) the rate per annum obtained by dividing (i)
the rate of interest equal to the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the
consensus bid rate determined by each of the Reference
Banks for the bid rates per annum, at 9:00 A.M. (New
York City time) (or as soon thereafter as practicable)
one Business Day before the first day of such Interest
Period, of New York certificate of deposit dealers of
recognized standing selected by such Reference Bank for
2
the purchase at face value of certificates of deposit
of such Reference Bank in an amount substantially equal
to such Reference Bank's Adjusted CD Rate Advance
comprising part of such A Borrowing and with a maturity
equal to such Interest Period, by (ii) a percentage
equal to 100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such Interest Period,
plus
(b) the Assessment Rate (as defined below) for
such Interest Period.
The "Adjusted CD Rate Reserve Percentage" for the Interest
-----------------------------------
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the reserve percentage applicable
one Business Day 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, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with deposits
exceeding one billion dollars with respect to liabilities
consisting of or including (among other liabilities) U.S.
dollar nonpersonal time deposits in the United States with a
maturity equal to such Interest Period. The "Assessment
----------
Rate" for the Interest Period for each Adjusted CD Rate
----
Advance comprising part of the same A Borrowing means the
annual assessment rate (or, if more than one rate, the
average of such rates) estimated by the Reference Banks one
Business Day before the first day of such Interest Period
for determining the then current annual assessment payable
by the Reference Banks to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of the Reference Banks in the United States. The
Adjusted CD Rate for the Interest Period for each Adjusted
CD Rate Advance comprising part of the same A Borrowing
shall be determined by the Borrower on the basis of
applicable rates furnished to and received by the Borrower
from the Reference Banks one Business Day before the first
day of such Interest Period, subject, however, to the
------- -------
provisions of Section 2.09.
"Adjusted CD Rate Advance" means an A Advance which
------------------------
bears interest as provided in Section 2.07(b).
"Advance" means an A Advance or a B Advance.
-------
"Affiliate" means, as to any Person, any other Person
---------
that, directly or indirectly, controls, is controlled by or
3
is under common control with such Person or is a director or
officer of such Person.
"Applicable Lending Office" means, with respect to each
-------------------------
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance, such Lender's CD Lending Office in the
case of an Adjusted CD Rate Advance, and such Lender's
Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such
Lender notified by such Lender to the Borrower as its
Applicable Lending Office with respect to such B Advance.
"Assignment and Acceptance" means an assignment and
-------------------------
acceptance entered into by a Lender and an assignee, and
accepted by the Borrower, in substantially the form of
Exhibit C hereto.
"B Advance" means an advance by a Lender to the
---------
Borrower as part of a B Borrowing resulting from the auction
bidding procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of
-----------
simultaneous B Advances from each of the Lenders whose offer
to make one or more B Advances as part of such borrowing has
been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower
------
payable to the order of any Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of
the Borrower to such Lender resulting from a B Advance made
by such Lender.
"B Reduction" has the meaning specified in Section
-----------
2.01.
"Base Rate" means a fluctuating interest rate per annum
---------
as shall be in effect from time to time which rate per annum
shall at all times be equal to the highest of:
(a) the average of the rates of interest
announced publicly by the Reference Banks in New York,
New York, from time to time, as their base or prime
rate;
(b) 1/4 of one percent per annum above the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average being
4
determined weekly on each Monday (or, if any such date
is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous
Friday by the Reference Banks on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated,
on the basis of the average of the quotations for such
rates received by each Reference Bank from three New
York certificate of deposit dealers of recognized
standing selected by it, in either case adjusted to the
nearest 1/4 of one percent or, if there is no nearest
1/4 of one percent, to the next higher 1/4 of one
percent; and
(c) 1/2 of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means an A Advance which bears
-----------------
interest as provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing.
---------
"Borrowing Subsidiary" has the meaning specified in
--------------------
Section 7.06(b).
"Business Day" means a day of the year on which banks
------------
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"CD Lending Office" means, with respect to any Lender,
-----------------
the office of such Lender specified as its "CD Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower.
"Change of Control" has the meaning specified in
-----------------
Section 7.08(b).
"Code" means the Internal Revenue Code of 1986, as
----
amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Commitment" has the meaning specified in Section 2.01.
----------
5
"Consolidated Net Tangible Assets" means, at any time,
--------------------------------
the excess of (a) all assets which appear on the most recent
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with
generally accepted accounting principles, after deducting
therefrom the sum of:
(i) the book amount appearing on such
consolidated balance sheet of good will, trademarks,
trademark rights, trade names, trade name rights,
copyrights, patents, patent rights, licenses,
unamortized debt discount and expense and other like
intangibles;
(ii) any write-up in the book value of any asset
resulting from a revaluation thereof subsequent to
December 31, 1993, except write-ups of assets located
outside of the United States of America pursuant to
applicable law or custom;
(iii) all reserves, including reserves for
deferred taxes, depreciation, obsolescence, depletion,
insurance and inventory valuation, but excluding
contingency reserves not allocated for any particular
purpose and not deducted from assets;
(iv) the amount, if any, at which any shares of
capital stock of the Borrower appear on the asset side
of such consolidated balance sheet; and
(v) the amount of the minority interest, if any,
in the shares of stock and surplus of any Consolidated
Subsidiary;
over (b) all current liabilities of the Borrower and its
Consolidated Subsidiaries on a consolidated basis.
"Consolidated Subsidiary" means at any date any
-----------------------
Subsidiary or other entity the accounts of which would, in
accordance with generally accepted accounting principles, be
included with those of the Borrower in its consolidated
financial statements as of such date.
"Debt" means (i) indebtedness for borrowed money, (ii)
----
obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services (other than accounts
payable in the ordinary course of business), (iv)
obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
6
principles, recorded as capital leases, and (v) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) above.
"Disclosed Litigation" has the meaning specified in
--------------------
Section 4.01(f).
"Documentation Advisors" means Citibank, N.A. and
----------------------
Morgan Guaranty Trust Company of New York.
"Domestic Lending Office" means, with respect to any
-----------------------
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower.
"Domestic Subsidiary" means any Subsidiary a majority
-------------------
of the business of which is conducted within the United
States of America, or a majority of the properties and
assets of which are located within the United States of
America, except (i) any Subsidiary substantially all of the
assets of which consist of the securities of Subsidiaries
which are not Domestic Subsidiaries, (ii) any Subsidiary
which is an FSC as defined in Section 922 of the Code and
(iii) any Subsidiary for any period during which an election
under Section 936 of the Code applies to such Subsidiary.
"Environmental Action" means any administrative,
--------------------
regulatory or judicial action, suit, demand, demand letter,
claim, notice of non-compliance or violation, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to the environment including, without limitation,
(a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory
authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or
-----------------
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to the
environment or Hazardous Materials and applicable to the
7
Borrower or its Subsidiaries or any property owned or
operated by the Borrower or its Subsidiaries under the laws
of the jurisdiction where the Borrower or such Subsidiary or
property is located.
"ERISA" means the Employee Retirement Income Security
-----
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
---------------
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable
-----------
event, within the meaning of Section 4043 of ERISA, with
respect to any Plan unless the 30-day notice requirement
with respect to such event has been waived by the PBGC; (b)
the provision by the administrator of any Plan of a notice
of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect
to a plan amendment referred to in Section 4041(e) of
ERISA); (c) the cessation of operations at a facility of the
Borrower or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by
the Borrower or any of its ERISA Affiliates from a Multiple
Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e) the failure by the Borrower or any of its ERISA
Affiliates to make a payment to a Plan if the conditions for
imposition of a lien under Section 302(f)(1) of ERISA are
satisfied; (f) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA; or (g) the institution by the PBGC
of proceedings to terminate a Plan, pursuant to Section 4042
of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
------------------------
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
-------------------------
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
8
Lender as such Lender may from time to time specify to the
Borrower.
"Eurodollar Rate" means, for the Interest Period for
---------------
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing (or, if such
Borrowing is a B Borrowing, equal to $1,000,000) and for a
period equal to such Interest Period. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by
the Borrower on the basis of applicable rates furnished to
and received by the Borrower from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
------- -------
"Eurodollar Rate Advance" means an A Advance which
-----------------------
bears interest as provided in Section 2.07(c) or a B Advance
which bears interest as provided in Section 2.03(h) for a
Quoted Margin Advance.
"Eurodollar Rate Reserve Percentage" of any Lender for
----------------------------------
the Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
-----------------
Section 6.01.
"Federal Funds Rate" means, for any period, a
------------------
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
9
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by each Reference Bank from three Federal funds brokers of
recognized standing selected by it.
"Guaranty" has the meaning specified in Section
--------
7.06(b).
"Hazardous Materials" means petroleum and petroleum
-------------------
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, radon gas and any
other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic," or
words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or agency interpretation, policy or
guidance and applicable to the Borrower or its Subsidiaries
or any property owned or operated by the Borrower or its
Subsidiaries under the laws of the jurisdiction where the
Borrower or such Subsidiary or property is located.
"Insufficiency" means, with respect to any Plan, the
-------------
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Advance (other than a
---------------
Base Rate Advance) comprising part of the same Borrowing,
the period commencing on the date of such Advance and ending
on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be 30, 60, 90 or 180 days in the case
of an Adjusted CD Rate Advance, and 1, 2, 3 or 6 months in
the case of a Eurodollar Rate Advance, in each case as the
Borrower may select by notice received by each Lender not
later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period,
in the case of Eurodollar Rate Advances, and the second
Business Day prior to such first day in the case of Adjusted
CD Rate Advances; provided, however, that:
-------- -------
(i) the Borrower may not select any Interest
Period which ends after the Termination Date;
10
(ii) Interest Periods commencing on the same date
for Advances comprising part of the same Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest
--------
Period for a Eurodollar Rate Advance, that if such
extension would cause the last day of such Interest
Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Lenders" means the Banks listed on the signature pages
-------
hereof and each assignee that shall become a party hereto
pursuant to Section 7.07 or Section 2.11(b).
"Lien" means any mortgage, lien, pledge, security
----
interest, encumbrance or charge of any kind, any conditional
sale or other title retention agreement or any lease in the
nature thereof, provided that the term "Lien" shall not
--------
include any lease involved in a Sale and Leaseback
Transaction.
"Major Domestic Manufacturing Property" means any
-------------------------------------
Principal Domestic Manufacturing Property the net
depreciated book value of which on the date as of which the
determination is made exceeds 2.5% of Consolidated Net
Tangible Assets.
"Material Adverse Change" means any material adverse
-----------------------
change in the business, condition or operations of the
Borrower and its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
-----------------------
effect on the business, condition or operations of the
Borrower and its Consolidated Subsidiaries taken as a whole.
11
"Moody's" means Moody's Investors Service, Inc. or any
-------
successor to its business of rating long-term debt.
"Multiemployer Plan" means a "multiemployer plan" as
------------------
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any of its ERISA Affiliates is making or accruing an
obligation to make contributions, or has within any of the
preceding three plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
----------------------
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and at least one Person other than the Borrower
and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates
could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Note" means an A Note or a B Note.
----
"Notice of A Borrowing" has the meaning specified in
---------------------
Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in
---------------------
Section 2.03(b).
"Offer" has the meaning specified in Section 2.03(c).
-----
"Operating Cash Flow" of the Borrower and its
-------------------
Subsidiaries for any period means (A) net income for such
period plus (B) the sum of all non-cash expenses and charges
deducted in arriving at net income for such period,
including but not limited to allowances for depreciation and
amortization and accruals for interest and taxes to the
extent that they exceed payments for interest and taxes
during the period, less (C) (i) all payments of interest and
taxes during the period to the extent that they exceed
accruals for interest and taxes for the period and (ii)
other payments of expenses not deducted in arriving at net
income for the period and (D) less net gains or plus net
losses from the sale or other disposition of fixed assets or
businesses for the period, to the extent they were included
in computing net income for the period, but the Borrower may
exclude from the computation under this clause (D) any gains
from the sale of certain parcels of real estate in New
Jersey pursuant to its present program to develop and sell
them over a period of years; provided that the aggregate
--------
number of parcels in the program shall not exceed 35.
12
"PBGC" means the Pension Benefit Guaranty Corporation
----
or any successor thereto.
"Person" means an individual, partnership, corporation
------
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
----
Employer Plan.
"Principal Domestic Manufacturing Property" means any
-----------------------------------------
building, structure or facility (including the land on which
it is located and the improvements and fixtures constituting
a part thereof) used primarily for manufacturing or
processing which is owned or leased by the Borrower or any
of its Subsidiaries, is located in the United States of
America and the net depreciated book value of which on the
date as of which the determination is made exceeds 1% of
Consolidated Net Tangible Assets, except any such building,
------
structure or facility which the Board of Directors of the
Borrower by resolution declares is not of material
importance to the total business conducted by the Borrower
and its Subsidiaries as an entirety.
"Principal Domestic Subsidiary" means (i) each
-----------------------------
Subsidiary which owns or leases a Principal Domestic
Manufacturing Property, (ii) each Domestic Subsidiary the
consolidated net worth of which exceeds 2.5% of Consolidated
Net Tangible Assets (as set forth in the most recent
financial statements referred to in Section 4.01(e) or
delivered pursuant to Section 5.01(e)(i) or (ii)), and (iii)
each Domestic Subsidiary of each Subsidiary referred to in
the foregoing clause (i) or (ii) except any such Subsidiary
------
the accounts receivable and inventories of which have an
aggregate net book value of less than $5,000,000.
"Quoted Margin", "Quoted Margin Advance", "Quoted Rate"
------------- --------------------- -----------
and "Quoted Rate Advance" shall have the respective meanings
-------------------
specified in Section 2.03(b).
"Reference Banks" means Citibank, N.A., Morgan Guaranty
---------------
Trust Company of New York and Chemical Bank.
"Register" has the meaning specified in
--------
Section 7.07(c).
"Rentals" with respect to any lease and for any period
-------
means the aggregate amounts payable by the lessee pursuant
13
to the terms of the lease for such period, whether or not
referred to as rent. Whenever it is necessary to determine
the amount of Rentals for any period in the future and to
the extent that such Rentals are not definitely determinable
by the terms of the lease, for the purpose of this
definition such Rentals may be estimated in such reasonable
manner as the Borrower may determine.
"Required Lenders" means at any time Lenders holding at
----------------
least 66-2/3% of the then aggregate unpaid principal amount
of the A Notes held by Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 66-2/3%
of the Commitments (provided that, for purposes hereof,
--------
neither the Borrower, nor any of its Affiliates, if a
Lender, shall be included in (i) the Lenders holding such
amount of the A Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid
principal amount of the A Advances or the total
Commitments).
"Restricted Property" means and includes (i) all
-------------------
Principal Domestic Manufacturing Properties, (ii) all
Securities of all Principal Domestic Subsidiaries, and (iii)
all inventories and accounts receivable of the Borrower and
its Principal Domestic Subsidiaries.
"S&P" means Standard & Poor's Corporation or any
---
successor to its business of rating long-term debt.
"Sale and Leaseback Debt" of any Person means, at the
-----------------------
date of determination thereof, the aggregate amount of
Rentals required to be paid by such Person under all Sale
and Leaseback Transactions to which such Person is a party
during the respective remaining terms thereof (after giving
effect to any renewals and extensions at the option of the
lessor) discounted from the respective dates of payment of
such Rentals to such date of determination at the actual
interest factor included in such Rentals or, if such
interest factor cannot be readily determined, at an interest
factor calculated in such manner as the Borrower shall
reasonably determine; provided, however, that if any portion
-------- -------
of the net proceeds of the sale of the property leased
pursuant to a Sale and Leaseback Transaction has been or is
being applied as provided in Section 5.02(b)(ii) and/or
Section 5.02(b)(iii), there shall be excluded in determining
Sale and Leaseback Debt that portion of the discounted
Rentals required to be paid under such Sale and Leaseback
Transaction which bears the same ratio to the total
discounted Rentals required to be paid under such Sale and
Leaseback Transaction as the portion of such net proceeds
14
which has been or is being applied as provided in Section
5.02(b)(ii) and/or Section 5.02(b)(iii) bears to the total
amount of such net proceeds.
"Sale and Leaseback Transaction" means any arrangement
------------------------------
directly or indirectly providing for the leasing by the
Borrower or any Principal Domestic Subsidiary for a period
in excess of three years of any Principal Domestic
Manufacturing Property which was sold or transferred by the
Borrower or any Principal Domestic Subsidiary more than 120
days after the acquisition thereof or the completion of
construction thereof, except any such arrangement solely
------
between the Borrower and a Principal Domestic Subsidiary or
solely between Principal Domestic Subsidiaries.
"Securities" of any corporation means and includes
----------
(i) all capital stock of all classes of and all other equity
interests in such corporation and all rights, options or
warrants to acquire the same, and (ii) all promissory notes,
debentures, bonds and other evidences of Debt of such
corporation.
"Senior Funded Debt" of any Person means, as of the
------------------
date of determination thereof, all Debt of such Person which
(i) matures by its terms more than one year after the date
as of which such determination is made (including any such
Debt which is renewable or extendable, or in effect
renewable or extendable through the operation of a revolving
credit agreement or other similar agreement, at the option
of such Person for a period or periods ending more than one
year after the date as of which such determination is made),
and (ii) is not, by the terms of any instrument or
instruments evidencing or securing such Debt or pursuant to
which such Debt is outstanding, expressly subordinated in
right of payment to any other Debt of such Person.
"Significant Subsidiary" means (x) each Subsidiary
----------------------
which is a Principal Domestic Subsidiary by operation of
clause (i), (ii) or (iii) of the definition of Principal
Domestic Subsidiary, and (y) each other Subsidiary whose
assets as at the end of the fiscal year immediately
preceding the time of determination exceeded 2% of
consolidated assets of the Borrower and its Subsidiaries as
at the end of such fiscal year.
"Single Employer Plan" means a single employer plan, as
--------------------
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and no Person other than the Borrower and its
ERISA Affiliates or (b) was so maintained and in respect of
15
which the Borrower or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subsidiary" means any corporation of which more than
----------
50% of the outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether or not at the time
capital stock of any other class or classes of such
corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or
indirectly owned by the Borrower, by the Borrower and one or
more other Subsidiaries, or by one or more other
Subsidiaries.
"Termination Date" means April 8, 1999 or the earlier
----------------
date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"364 Day Credit Agreement" means the 364 Day Credit
------------------------
Agreement dated as of April 8, 1994 among the Borrower and
the lenders named therein, as such agreement may be amended
or otherwise modified from time to time.
"Withdrawal Liability" shall have the meaning given
--------------------
such term under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
---------------------------
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
----------------
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally
--------------
agrees, on the terms and conditions hereinafter set forth, to
make A Advances to the Borrower or a Borrowing Subsidiary from
time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set opposite such
Lender's name on the signature pages hereof or, if such Lender
16
has entered into any Assignment and Acceptance, set forth for
such Lender in the Register, as such amount may be reduced
pursuant to Section 2.05 (such Lender's "Commitment"), provided
---------- --------
that the aggregate amount of the Commitments of the Lenders shall
be deemed used from time to time to the extent of the aggregate
amount of the B Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be applied to the
Lenders ratably according to their respective Commitments (such
deemed use of the aggregate amount of the Commitments being a
"B Reduction"). Each A Borrowing shall be in an aggregate amount
-----------
not less than $25,000,000 or an integral multiple of $5,000,000
in excess thereof (unless the aggregate amount of the unused
Commitments is less than $25,000,000, in which case such
Borrowing shall be equal to the aggregate amount of the unused
Commitments) and shall consist of A Advances of the same Type and
having the same Interest Period made on the same day by the
Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may
from time to time borrow, repay pursuant to Section 2.06 or
prepay pursuant to Section 2.10 or 2.11(b) and reborrow under
this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A
---------------------
Borrowing shall be made on notice given by the Borrower or a
Borrowing Subsidiary, as the case may be, and received by each
Lender not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed A Borrowing
in the case of Eurodollar Rate Advances, on the second Business
Day prior to such date in the case of Adjusted CD Rate Advances,
or the same Business Day in the case of Base Rate Advances. Each
such notice of an A Borrowing (a "Notice of A Borrowing") shall
---------------------
be given by telecopier, telex or cable, confirmed immediately by
hand or by mail, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such A Borrowing,
(ii) Type of A Advances comprising such A Borrowing, (iii)
aggregate amount of such A Borrowing, and (iv) in the case of an
A Borrowing comprised of Adjusted CD Rate Advances or Eurodollar
Rate Advances, the Interest Period for each such A Advance. Upon
fulfillment of the applicable conditions set forth in Article
III, each Lender shall, before 1:00 P.M. (New York City time) on
the date of such A Borrowing, make available for the account of
its Applicable Lending Office to the Borrower or the applicable
Borrowing Subsidiary at an account specified by the Borrower or
the applicable Borrowing Subsidiary by notice to the Lender, in
immediately available funds, such Lender's ratable portion of
such A Borrowing.
(b) Anything in subsection (a) above to the contrary
notwithstanding:
17
(i) if any Lender shall, at least one Business Day
before the date of any requested Borrowing, notify the
Borrower that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful,
or that any central bank or other governmental authority
asserts that it is unlawful, for such Lender or its
Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances hereunder, the Borrower
shall immediately notify each other Lender and the right of
the Borrower and any Borrowing Subsidiary to select
Eurodollar Rate Advances for the portion of such Borrowing
advanced by the Lender which has provided the notice
described above or the portion of any subsequent Borrowing
advanced by such Lender shall be suspended until such Lender
shall notify the Borrower that the circumstances causing
such suspension no longer exist, and each such Advance shall
be a Base Rate Advance;
(ii) if fewer than two Reference Banks furnish timely
information to the Borrower for determining the Adjusted CD
Rate for any Adjusted CD Rate Advances, or the Eurodollar
Rate for any Eurodollar Rate Advances, comprising any
requested Borrowing, the Borrower shall immediately notify
each Lender and the right of the Borrower and any Borrowing
Subsidiary to select Adjusted CD Rate Advances or Eurodollar
Rate Advances, as the case may be, for such Borrowing or any
subsequent Borrowing shall be suspended until the Borrower
shall notify the Lenders that the circumstances causing such
suspension no longer exist, and each Advance comprising such
Borrowing shall be a Base Rate Advance; and
(iii) if the Required Lenders shall, at least one
Business Day before the date of any requested Borrowing,
notify the Borrower that the Eurodollar Rate for Eurodollar
Rate Advances comprising such Borrowing will not adequately
reflect the cost to such Required Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances for
such Borrowing, the Borrower shall immediately notify each
other Lender and the right of the Borrower and any Borrowing
Subsidiary to select Eurodollar Rate Advances for such
Borrowing or any subsequent Borrowing shall be suspended,
and each Advance comprising such Borrowing shall be a Base
Rate Advance. The Lenders will review regularly the
circumstances causing such suspension, and as soon as such
circumstances no longer exist the Required Lenders will
notify the Borrower that such suspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable
and binding on the Borrower or Borrowing Subsidiary, as the case
18
may be. In the case of any A Borrowing that the related Notice
of A Borrowing specifies is to be comprised of Adjusted CD Rate
Advances or Eurodollar Rate Advances, the Borrower or Borrowing
Subsidiary, as the case may be shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified
in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without
limitation, any loss (including any loss of margin for the period
after any such
failure to borrow), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the A Advance to be made by such Lender as
part of such A Borrowing when such A Advance, as a result of such
failure, is not made on such date.
(d) The failure of any Lender to make the A Advance to
be made by it as part of any A Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its A
Advance on the date of such A Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A
Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender
--------------
severally agrees that the Borrower or a Borrowing Subsidiary, as
the case may be, may request B Borrowings under this Section 2.03
from time to time on any Business Day during the period from the
date hereof until the date occurring (i) 15 days prior to the
Termination Date in the case of a Quoted Rate Advance (as defined
below) or (ii) 30 days prior to the Termination Date in the case
of a Quoted Margin Advance (as defined below), in the manner set
forth below; provided that, following the making of each B
--------
Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any B Reduction).
(b) The Borrower or a Borrowing Subsidiary, as the
case may be, may request a B Borrowing under this Section 2.03 by
delivering to each Lender, by telecopier, telex or cable,
confirmed immediately by hand or by mail, a notice of a B
Borrowing (a "Notice of B Borrowing"), in substantially the form
---------------------
of Exhibit B-2 hereto, specifying:
(i) the date and aggregate amount of the proposed
B Borrowing (which shall not be less than $25,000,000 or an
integral multiple of $5,000,000 in excess thereof; provided
--------
that if the aggregate amount of the unused Commitments is
less than $25,000,000, the amount of such proposed Borrowing
19
shall be equal to the aggregate amount of the unused
Commitments),
(ii) whether each Lender should quote (x) a rate of
interest (a "Quoted Rate") to be the entire rate applicable
-----------
to the proposed B Advance (a "Quoted Rate Advance") or (y) a
-------------------
marginal per annum rate (a "Quoted Margin") to be added to
-------------
the Eurodollar Rate for an Interest Period equal to the term
of the proposed B Borrowing (a "Quoted Margin Advance"),
---------------------
(iii) the maturity date for repayment of each B
Advance to be made as part of such B Borrowing (which
maturity date may not be earlier than the date occurring 15
days after the date of such B Borrowing in the case of a
Quoted Rate Advance, shall be one, two, three or six months
after such date in the case of a Quoted Margin Advance, and
in any case may not be later than the Termination Date),
(iv) the interest payment date or dates relating
thereto, and
(v) any other terms to be applicable to such
B Borrowing,
not later than 10:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed B Borrowing, in
the case of a Quoted Rate Advance and (B) at least five Business
Days prior to the date of the proposed B Borrowing, in the case
of a Quoted Margin Advance.
(c) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more B Advances
to the Borrower or Borrowing Subsidiary, as the case may be, as
part of such proposed B Borrowing by transmitting to the Borrower
or Borrowing Subsidiary, as the case may be, a written notice (an
"Offer") received by the Borrower or Borrowing Subsidiary, as the
-----
case may be, (A) before 9:00 A.M. (New York City time) on the
date of such proposed B Borrowing, in the case of a Quoted Rate
Advance and (B) before 12:00 noon (New York City time) three
Business Days before the date of such proposed B Borrowing, in
the case of a Quoted Margin Advance, specifying (x) the minimum
amount and maximum amount of each B Advance which such Lender
would be willing to make as part of such proposed B Borrowing
(which amounts may, subject to the proviso to Section 2.03(a),
exceed such Lender's Commitment), (y) a Quoted Rate or a Quoted
Margin therefor (as requested by the Notice of B Borrowing) and
(z) such Lender's Applicable Lending Office with respect to such
B Advance. If any Lender shall elect not to make an Offer, such
Lender shall so notify the Borrower or Borrowing Subsidiary, as
the case may be, before the applicable time and date for receipt
20
by the Borrower or Borrowing Subsidiary, as the case may be, of
the Offers, and such Lender shall not be obligated to, and shall
not, make any B Advance as part of such B Borrowing; provided
--------
that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(d) The Borrower or Borrowing Subsidiary, as the case
may be, shall, in turn, (A) before 10:00 A.M. (New York City
time) on the date of such proposed B Borrowing, in the case of a
Quoted Rate Advance and (B) before 1:00 P.M. (New York City time)
three Business Days before the date of such proposed B Borrowing,
in the case of a Quoted Margin Advance, either
(i) cancel such B Borrowing by giving each Lender
notice to that effect, and such B Borrowing shall not be
made, or
(ii) accept one or more of the Offers made by any
Lender or Lenders, in its sole discretion, by giving notice
to each Lender of the amount of each B Advance to be made by
each Lender as part of such B Borrowing (which amount shall
be equal to or greater than the minimum amount, and equal to
or less than the maximum amount, offered to the Borrower or
Borrowing Subsidiary, as the case may be, by such Lender for
such B Advance in its notice given pursuant to subsection
(c) above), and such notice shall reject any remaining
Offers made by Lenders pursuant to subsection (c) above,
provided that (x) the Borrower or Borrowing Subsidiary, as
--------
the case may be, shall not accept Offers for an aggregate
principal amount of B Advances in excess of the aggregate
principal amount stated in the Notice of B Borrowing, (y)
the Borrower or Borrowing Subsidiary, as the case may be,
shall not accept any Offer unless all Offers specifying a
lower Quoted Rate or Quoted Margin, as the case may be, are
also accepted, and (z) if all Offers specifying the same
Quoted Rate or Quoted Margin, as the case may be, are not
accepted in full, the Borrower or Borrowing Subsidiary, as
the case may be, shall apportion its acceptances among such
Offers in proportion to the respective principal amounts of
such Offers (rounded, where necessary, to the nearest
$1,000,000).
(e) If the Borrower accepts one or more of the Offers,
each Lender that is to make a B Advance as part of such B
Borrowing shall, before 12:00 noon (New York City time) on the
date of such B Borrowing, or as soon thereafter as it shall have
received from the Borrower documents which fulfill the applicable
conditions set forth in Article III, make available for the
account of its Applicable Lending Office to the Borrower at an
21
account specified by the Borrower by notice to such Lender, such
Lender's B Advance, in immediately available funds. Promptly
after each B Borrowing the Borrower will notify each Lender of
the amount of the B Borrowing, the consequent B Reduction and the
dates upon which such B Reduction commenced and will terminate.
(f) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to subsection
(g) below, and reborrow under this Section 2.03, provided that a
--------
B Borrowing shall not be made within three Business Days of the
date of any other B Borrowing.
(g) The Borrower shall repay to each Lender that has
made a B Advance, or each other holder of a B Note, on the
maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the
related Notice of B Borrowing and provided in the B Note
evidencing such B Advance), the then unpaid principal amount of
such B Advance. The Borrower shall have no right to prepay any
principal amount of any B Advance.
(h) The Borrower shall pay interest on the unpaid
principal amount of each B Advance from the date of such B
Advance to the date the principal amount of such B Advance is
repaid in full, at (x) the Quoted Rate, in the case of a Quoted
Rate Advance, and (y) at the sum of the Eurodollar Rate for the
Interest Period of such B Advance plus the Quoted Margin, in the
case of a Quoted Margin Advance, in each case as specified for
such B Advance by the Lender making such B Advance in its Offer
with respect thereto, payable on the interest payment date or
dates specified by the Borrower for such B Advance in the related
Notice of B Borrowing and set forth in the B Note evidencing such
B Advance.
(i) The indebtedness of the Borrower resulting
from each B Advance made to the Borrower as part of a B
Borrowing shall be evidenced by a separate B Note of
the Borrower payable to the order of the Lender making
such B Advance.
SECTION 2.04. Commitment and Facility Fees. The
----------------------------
Borrower agrees to pay to each Lender (a) a commitment fee on the
average daily unused portion of such Lender's Commitment (after
giving effect to any B Reduction) and (b) a facility fee on the
average daily amount of such Lender's Commitment, each accruing
from the date on which this Agreement becomes fully executed in
the case of each Bank and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination
22
Date, payable on the last day of each March, June, September and
December during the term of such Lender's Commitment, commencing
June 30, 1994, and on the Termination Date, computed from time to
time at the rates per annum set forth below under the headings
Commitment Fee and Facility Fee, respectively, opposite the lower
of the ratings then applicable to the Borrower's long-term senior
debt as published by S&P and Moody's:
Commitment Facility
Moody's S&P Fee Fee
- ------- --- ------------------------
A3 or above A- or above 0 .1250%
Baa1 BBB+ .0625% .1250%
Baa2 BBB .0625% .1625%
Lower than above or not rated .0625% .1875%
SECTION 2.05. Reduction of the Commitments. The
----------------------------
Borrower shall have the right, upon at least three Business Days'
notice to each Lender, to terminate in whole all of the
Commitments or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that the
--------
aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount which is less than the aggregate principal
amount of the Advances then outstanding, and provided further
-------- -------
that each partial reduction (other than a reduction pursuant to
Section 2.11) shall be in the aggregate amount of $25,000,000 or
an integral multiple thereof.
SECTION 2.06. Repayment of A Advances. The Borrower
-----------------------
or Borrowing Subsidiary, as the case may be, shall repay the
principal amount of each Base Rate Advance made by each Lender to
the Borrower or Borrowing Subsidiary, as the case may be, on the
Termination Date and the principal amount of each other A Advance
made by each Lender on the last day of the Interest Period for
such A Advance.
SECTION 2.07. Interest on A Advances. The Borrower or
----------------------
Borrowing Subsidiary, as the case may be, shall pay interest on
the unpaid principal amount of each A Advance made by each Lender
to the Borrower or Borrowing Subsidiary, as the case may be, from
the date of such A Advance until such principal amount shall be
paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base
------------------
Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time, payable quarterly on
23
the last day of each March, June, September, and December
during such period and on the date such Base Rate Advance
shall be paid in full; provided that any amount of principal
--------
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid
in full, payable on demand, at a rate per annum equal at all
times to 1% per annum above the Base Rate in effect from
time to time.
(b) Adjusted CD Rate Advances. If such A Advance is
-------------------------
an Adjusted CD Rate Advance, a rate per annum equal during
the Interest Period for such A Advance to the sum of the
Adjusted CD Rate for such Interest Period plus the per annum
rate equal from time to time to the rate set forth below
opposite the lower of the ratings then applicable to the
Borrower's long-term senior debt as published by S&P and
Moody's:
Moody's S&P Rate
------- --- ----
A3 or above A- or above .3500%
Baa1 BBB+ .4375%
Baa2 BBB .5250%
Lower than above or not rated .6250%
payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than 90 days, on each
day which occurs during such Interest Period every 90 days
from the first day of such Interest Period; provided that
--------
any amount of principal which is not paid when due (whether
at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate
per annum equal to (x) until the end of the then current
Interest Period, 1% per annum above the rate per annum
required to be paid on such A Advance immediately prior to
the date on which such amount became due, and (y)
thereafter, 1% per annum above the Base Rate in effect from
time to time.
(c) Eurodollar Rate Advances. If such A Advance is a
------------------------
Eurodollar Rate Advance, a rate per annum equal during the
Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the per annum
rate equal from time to time to the rate set forth below
opposite the lower of the ratings then applicable to the
24
Borrower's long-term senior debt as published by S&P and
Moody's:
Moody's S&P Rate
------- --- ----
A3 or above A- or above .2250%
Baa1 BBB+ .3125%
Baa2 BBB .4000%
Lower than above or not rated .5000%
payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each
day which occurs during such Interest Period every three months
from the first day of such Interest Period; provided that any
--------
amount of principal which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest, from
the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal to (x) until
the end of the then current Interest Period, 1% per annum above
the rate per annum required to be paid on such A Advance
immediately prior to the date on which such amount became due,
and (y) thereafter, 1% per annum above the Base Rate in effect
from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate
--------------------------------------
Advances. The Borrower or Borrowing Subsidiary, as the case may
- --------
be, shall pay to each Lender, so long as such Lender shall be
required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount
of each Eurodollar Rate Advance of such Lender to the Borrower or
Borrowing Subsidiary, as the case may be, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be
determined by such Lender and the Borrower or Borrowing
Subsidiary, as the case may be, shall be notified of such
additional interest.
SECTION 2.09. Interest Rate Determination. (a) Each
---------------------------
Reference Bank agrees to furnish to the Borrower and the
25
Borrowing Subsidiaries timely information for the purpose of
determining the Base Rate from time to time in effect and each
Adjusted CD Rate or Eurodollar Rate, as applicable. Subject to
the terms of Section 2.02(b)(ii), if any one or more of the
Reference Banks shall not furnish such timely information to the
Borrower and the Borrowing Subsidiaries for the purpose of
determining any such interest rate, the Borrower or Borrowing
Subsidiary, as the case may be, shall determine such interest
rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Borrower or Borrowing Subsidiary, as the case
may be, shall give prompt notice to the Lenders of each
applicable interest rate determined therefrom by the Borrower or
such Borrowing Subsidiary for purposes of Section 2.03(h)(y) or
Section 2.07(a), (b) or (c), and the applicable rate furnished by
each Reference Bank for the purpose of determining such
applicable interest rate.
(c) If (but only so long as) fewer than two Reference
Banks shall furnish timely information to the Borrower for
determining the Base Rate in effect from time to time when Base
Rate Advances are outstanding, the Borrower shall immediately
give notice to each Lender, and the Required Lenders shall
immediately designate an additional Reference Bank for the
purpose of determining the Base Rate, but such designation shall
terminate if a replacement Reference Bank is nominated and
approved as provided in the following sentence. Whenever a
Reference Bank either ceases to be a Lender or repeatedly fails
to furnish timely information to the Borrower for determining the
Base Rate, the Adjusted CD Rate or the Eurodollar Rate, the
Borrower will give prompt notice thereof to the Lenders and will
nominate another Lender to replace such Reference Bank, and such
Lender shall, if approved by the Required Lenders, replace such
Reference Bank.
SECTION 2.10. Prepayments of A Advances. The Borrower
-------------------------
or a Borrowing Subsidiary, as the case may be, may, upon notice
to each Lender stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, or if the
Borrower or Borrowing Subsidiary, as the case may be, is required
to prepay any A Advance pursuant to Section 2.11(c) or
5.02(b)(ii) hereof, the Borrower or Borrowing Subsidiary, as the
case may be, shall, prepay the outstanding principal amounts of
the A Advances comprising part of the same A Borrowing in whole
or ratably in part (provided that with regard to prepayments made
--------
pursuant to Section 2.11(c), the Borrower or such Borrowing
Subsidiary shall be required to prepay only the outstanding
principal amounts of the A Advances made by the Lender or Lenders
affected by Section 2.11(c)), together with accrued interest to
26
the date of such prepayment on the principal amount prepaid, and
the losses, costs and expenses, if any, payable pursuant to
Section 7.04(c). Such notice shall be received by each Lender
not later than 11:00 A.M. (New York City time), on the third
Business Day prior to the date of the proposed prepayment in the
case of Eurodollar Rate Advances, on the second Business Day
prior to such date in the case of Adjusted CD Rate Advances or on
the Business Day prior to such date in the case of Base Rate
Advances. Except for prepayments made pursuant to Section
2.11(c) or 5.02(b), each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and any
partial prepayment of any Adjusted CD Rate Advances or Eurodollar
Rate Advances shall not leave outstanding less than $25,000,000
aggregate principal amount of such A Advances comprising part of
any A Borrowing.
SECTION 2.11. Increased Costs, Etc. (a) If, due to
--------------------
either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements,
in the case of Adjusted CD Rate Advances, included in the
Adjusted CD Rate Reserve Percentage or, in the case of Eurodollar
Rate Advances, included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the
costs to any Lender of agreeing to make or making, funding or
maintaining Adjusted CD Rate Advances or Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand
by such Lender, pay to such Lender additional amounts sufficient
to compensate such Lender for such increased costs for a period
beginning not more than 90 days prior to such demand. A
certificate as to the amount of such increased cost submitted to
the Borrower by such Lender, setting forth in reasonable detail
the calculation of the increased costs, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender which decreases such Lender's
return on its capital (after taking into account any changes in
the Eurodollar Rate and Eurodollar Rate Reserve Percentage) and
that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender, the
Borrower shall immediately pay to such Lender, from time to time
27
as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder, such
compensation to cover a period beginning not more than 90 days
prior to such demand. A certificate as to such amounts submitted
to the Borrower by such Lender, setting forth in reasonable
detail the calculation of the amount required to be paid
hereunder, shall be conclusive and binding for all purposes,
absent manifest error.
(c) Within 30 days after the receipt of (A) notice
from a Lender as described in Section 2.02(b)(i), or (B) a demand
for compensation from a Lender under subsection (a) or (b) above,
the Borrower may, by at least three Business Days' notice to each
Lender, terminate the Commitment (in whole but not in part) of
any Lender which has provided such notice under
Section 2.02(b)(i), or demanded compensation under subsection (a)
or (b) above in an amount (expressed as a percentage per annum of
its unused Commitment) which exceeds the compensation demanded by
the other Lenders, provided that (i) the Borrower shall first pay
--------
to such Lender all compensation required to be paid under
subsection (a) or (b) above accrued to the termination date of
such Commitment, (ii) the Borrower shall first prepay all
outstanding A Advances made by such Lender in accordance with the
provisions of Section 2.10 hereof, (iii) the Borrower shall not
terminate the Commitment of any Lender under this subsection
unless it also terminates the Commitment of all other Lenders
providing similar notice under Section 2.02(b)(i) or demanding
compensation at a rate equal to or higher than that demanded by
such Lender under subsection (a) or (b) above, and (iv) the
Borrower shall not take any action under this subsection which
would reduce the aggregate of the Commitments below the aggregate
of the Advances outstanding. Effective with such termination,
the Borrower may substitute for such Lender one or more other
banks or entities which will assume the Commitment and other
obligations hereunder of such terminated Lender or Lenders, and
will become a Lender or Lenders hereunder upon executing an
assumption agreement in form and substance reasonably
satisfactory to the Borrower and the Required Lenders.
SECTION 2.12. Payments and Computations. (a) The
-------------------------
Borrower or Borrowing Subsidiary, as the case may be, shall make
each payment hereunder and under the Notes not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to
each Lender at its address referred to in Section 7.02 in
immediately available funds, for the account of its Applicable
Lending Office. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in
28
the Register pursuant to Section 7.07(d), from and after the
effective date specified in such Assignment and Acceptance, the
Borrower or Borrowing Subsidiary, as the case may be, shall make
all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender's assignee thereunder,
and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Each of the Borrower and any Borrowing Subsidiary
hereby authorizes each Lender, if and to the extent payment owed
to such Lender is not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or
all of the Borrower's or such Borrowing Subsidiary's, as the case
may be, accounts with such Lender any amount so due.
(c) All computations of interest based on clause (a)
of the definition of "Base Rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and all computations
of interest based on the Adjusted CD Rate, the Eurodollar Rate, a
Quoted Rate or the Federal Funds Rate and of commitment fees and
facility fees shall be made on the basis of a year of 360 days,
in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which
such interest or fees are payable.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest, commitment fee or facility
fee, as the case may be; provided, however, if such extension
-------- -------
would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) The date and amount of each A Advance made by each
Lender, the date on which it is due, the interest rate applicable
thereto and any prepayments thereof shall be recorded by such
Lender on its books, which shall be presumptive evidence thereof,
whether or not the same is endorsed on the grid annexed to such
Lender's A Note.
SECTION 2.13. Taxes. (a) Subject to subsection (f)
-----
below, any and all payments hereunder or under the A Notes shall
be made, in accordance with Section 2.12, (i) if made by the
Borrower, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings of the United States of America or any state thereof
or political subdivision of any of them or any other jurisdiction
29
from or through which the Borrower elects to make such payment,
and all liabilities with respect thereto, and (ii) if made by a
Borrowing Subsidiary, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions,
charges or withholdings of any jurisdiction within which it is
organized or does business or is managed or controlled or has its
head or principal office or from or through which such Borrowing
Subsidiary elects to make such payment, and all liabilities with
respect thereto, excluding (w) in the case of each Lender, taxes
---------
imposed on its income, and franchise taxes imposed on it, by any
jurisdiction under the laws of which such Lender is organized or,
as to the United States of America or any state thereof or any
political subdivision of any of them, is doing business or any
political subdivision thereof and by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof, (x) in the case of each Lender, any income tax or
franchise tax imposed on it by a jurisdiction (except the United
States of America or any state thereof or any political
subdivision of any of them) as a result of a connection between
such jurisdiction and such Lender (other than as a result of such
Lender's having entered into this Agreement, performing hereunder
or enforcing this Agreement), (y) any payment of tax which the
Borrower is obliged to make pursuant to Section 159 of the Income
and Corporation Taxes Act 1970 of the United Kingdom (or any re-
enactment or replacement thereof) on behalf of a Lender which is
resident for tax purposes in the United Kingdom but is not
recognized as a bank by H.M. Inland Revenue and (z) Other Taxes
as defined in subsection (b) below, (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the
-----
Borrower or any Borrowing Subsidiary shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder
or under any A Note to any Lender, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.13) such Lender receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower or such Borrowing Subsidiary shall
make such deductions and (iii) the Borrower or such Borrowing
Subsidiary shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower or the Borrowing
Subsidiary shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the A
Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the A Notes
(hereinafter referred to as "Other Taxes"). Each Bank represents
-----------
30
that at the date of this Agreement it is not aware of any Other
Taxes applicable to it. Each Lender agrees to notify the
Borrower or such Borrowing Subsidiary on becoming aware of the
imposition of any such Other Taxes.
(c) The Borrower or the Borrowing Subsidiary will
indemnify each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.13)
paid by such Lender and any liability (including penalties,
interest and expenses not attributable to acts or omissions of
any party other than the Borrower or such Borrowing Subsidiary)
arising therefrom or with respect thereto. This indemnification
shall be paid within 30 days from the date such Lender makes
written demand therefor.
(d) As soon as practicable after the date of any
payment of Taxes (other than Taxes of the United States of
America or any state thereof or political subdivision of any of
them), the Borrower or the Borrowing Subsidiary will furnish to
each Lender, at its address referred to in Section 7.02, the
original or a certified copy of a receipt evidencing payment
thereof (if any such receipt is reasonably available), other
evidence of such payment or, if neither a receipt nor other
evidence is available, a statement by the Borrower or such
Borrowing Subsidiary confirming payment thereof. If no such
Taxes are payable in respect of any payment hereunder or under
the A Notes, the Borrower or such Borrowing Subsidiary will at
the request of a Lender furnish to such Lender, an opinion of
counsel for the Borrower or such Borrowing Subsidiary stating
that such payment is exempt from or not subject to Taxes.
(e) Each Lender will, from time to time as requested
by the Borrower or the Borrowing Subsidiary in writing, provide
the Borrower or the Borrowing Subsidiary
with any applicable forms, completed and signed, that may be
required by the tax authority of a jurisdiction in order to
certify such Lender's exemption from or applicable reduction in
any applicable Taxes of such jurisdiction with respect to any and
all payments that are subject to such an exemption or reduction
to be made to such Lender hereunder and under the A Notes, if the
Lender is entitled to such an exemption or reduction.
(f) Notwithstanding anything contained herein to the
contrary, the Borrower or the Borrowing Subsidiary shall not be
required to pay any additional amounts pursuant to this Section
on account of any Taxes of, or imposed by, the United States, to
any Lender which is not entitled on the date on which it signed
this Agreement (or, in the case of an assignee of a Lender, on
the date on which the assignment to it became effective), to
31
submit Form 1001 or Form 4224 or a certification that it is a
corporation or other entity organized in or under the laws of the
United States or a state thereof, so as to establish a complete
exemption from such Taxes with respect to all payments hereunder
and under the A Notes. If as a result of an erroneous
certification made by a Lender the Borrower or such Borrowing
Subsidiary makes a payment to it without deduction for United
States withholding taxes, but would have made such a deduction
had such certification not been erroneous and the Borrower or
such Borrowing Subsidiary subsequently is required to account,
and does account, to the United States tax authorities for any
amount which should have been deducted, such Lender shall pay to
the Borrower or such Borrowing Subsidiary an amount sufficient to
reimburse the Borrower or such Borrowing Subsidiary for such
amount.
(g) At the request of a Borrower or a Borrowing
Subsidiary, any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
which may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender. The Borrower or such Borrowing Subsidiary shall
reimburse such Lender for the Borrower's or such Borrowing
Subsidiary's equitable share of such Lender's reasonable expenses
incurred in connection with such change or in considering such a
change.
(h) Without prejudice to the survival of any other
agreement of the Borrower and its Borrowing Subsidiaries
hereunder, the agreements and obligations of the Borrower and its
Borrowing Subsidiaries contained in this Section 2.13 shall
survive the payment in full of principal and interest hereunder
and under the A Notes, provided, however, that the Borrower or
-------- -------
such Borrowing Subsidiary has received timely notice of the
assertion of any Taxes or Other Taxes in order for it to contest
such Taxes or Other Taxes to the extent permitted by law.
SECTION 2.14. Sharing of Payments, Etc. If any Lender
------------------------
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the A Advances (whether for principal, interest, fees or
otherwise) made by it (other than pursuant to Section 2.08, 2.11
or 2.13) in excess of its ratable share of payments on account of
the A Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the A Advances made by them as shall be necessary to cause such
32
purchasing Lender to share the excess payment ratably with each
of them, provided, however, that if all or any portion of such
-------- -------
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
each such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Each of the
Borrower and any Borrowing Subsidiary agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower or such Borrowing
Subsidiary, as the case may be, in the amount of such
participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances.
---------------------------------------
The obligation of each Lender to make its initial Advance is
subject to the condition precedent that such
Lender shall have received, on or before the date of such
Advance, or, if earlier, May 6, 1994, the following, each dated
no later than the first date on which all of such documents have
been delivered, in form and substance satisfactory to such Lender
and (except for the Notes) in sufficient copies for each Lender:
(a) The A Note and, if applicable, the B Note payable
to the order of such Lender.
(b) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and
the Notes and each Guaranty, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Agreement and the Notes.
(c) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement and the Notes and the other documents to
be delivered hereunder.
(d) A certificate of a duly authorized officer of the
Borrower certifying that the representations and warranties
33
contained in Section 4.01 are correct on and as of such date
(before and after giving effect to any Borrowing on such
date and the application of the proceeds therefrom), as
though made on and as of such date, and that no event has
occurred and is continuing (or would result from any such
Borrowing or application of the proceeds thereof) which
constitutes an Event of Default or would constitute an Event
of Default but for the requirement that notice be given or
time elapse or both.
(e) A favorable opinion of the General Counsel or an
Associate General Counsel of the Borrower, substantially in
the form of Exhibit D hereto.
(f) A favorable opinion of Shearman & Sterling,
special counsel for the Documentation Advisors,
substantially in the form of Exhibit E hereto.
(g) Evidence of the termination of the Commitments
under (i) the Credit Agreement dated as of March 30, 1990
among the Borrower and the lenders party thereto, and
(ii) the Credit Agreement dated as of August 27, 1993 among
the Borrower and the lenders party thereto.
SECTION 3.02. Conditions Precedent to Each A
------------------------------
Borrowing. The obligation of each Lender to make an A Advance on
- ---------
the occasion of each A Borrowing (including the initial A
Borrowing) shall be subject to the further conditions precedent
that on the date of such A Borrowing (a) the following statements
shall be true (and each of the giving of the applicable Notice of
A Borrowing and the acceptance by the Borrower or any Borrowing
Subsidiary of the proceeds of such A Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such A Borrowing such statements are true):
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the date of such A
Borrowing, before and after giving effect to such A
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would
result from such A Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both;
provided, however, that, on the occasion of an A Borrowing which
- -------- -------
would not increase the aggregate outstanding amount of A Advances
owing to each Lender over the aggregate outstanding amount of A
34
Advances owing to such Lender immediately prior to making such A
Borrowing, the statements set forth in subsections (i) and (ii)
above shall be modified as follows:
(i) In subsection (i) the phrase "(excluding those
contained in the last sentence of subsection (e) and in
subsection (f) thereof)" shall be inserted immediately after
"Section 4.01"; and
(ii) In subsection (ii) the words "or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both" shall be omitted; and (b) the
Lenders shall have received such other approvals, opinions
or documents as any Lender may reasonably request,
evidencing the accuracy of the representations and
warranties and compliance with other conditions of lending.
SECTION 3.03. Conditions Precedent to Each B
------------------------------
Borrowing. The obligation of each Lender which is to make a B
- ---------
Advance on the occasion of a B Borrowing (including the initial B
Borrowing) to make such B Advance as part of such B Borrowing is
subject to the conditions precedent that (i) such Lender shall
have received the written confirmatory Notice of B Borrowing with
respect thereto, (ii) on or before the date of such B Borrowing,
but prior to such B Borrowing, such Lender shall have received a
B Note payable to the order of such Lender for each of the one or
more B Advances to be made by such Lender as part of such B
Borrowing, each in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such B Advance in accordance
with Section 2.03, and (iii) on the date of such B Borrowing the
following statements shall be true (and each of the giving of the
applicable Notice of B Borrowing and the acceptance by the
Borrower or any Borrowing Subsidiary of the proceeds of such B
Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such B Borrowing such statements are
true):
(a) The representations and warranties contained in
Section 4.01 are correct on and as of the date of such B
Borrowing, before and after giving effect to such B
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date,
(b) No event has occurred and is continuing, or would
result from such B Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, and
35
(c) The information concerning the Borrower that has
been provided in writing to each Lender by the Borrower in
connection herewith as required by the provisions of this
Agreement did not include an untrue statement of a material
fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading; provided that with regard to any information
--------
delivered to a Lender pursuant to Section 5.01(e)(vii), the
representation and warranty in this Section 3.03(c) shall
apply only to such information that is specifically
identified to the Borrower at the time the request is made
as information (i) that may be delivered to apurchaser of a
B Note, or (ii) that is otherwise requested to be subject to
this Section 3.03(c).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
-------------------------------------
Borrower. The Borrower represents and warrants as follows:
- --------
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the
Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene
(i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the
Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement
or the Notes.
(d) This Agreement is, and each of the Notes when
executed and delivered hereunder will be, the legal, valid
and binding obligation of the Borrower enforceable against
the Borrower in accordance with their respective terms,
except as the same may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally, or by
general principles of equity.
36
(e) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at December 31, 1993 and
the related consolidated statements of income, cash flow and
retained earnings of the Borrower and its Consolidated
Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Arthur Andersen & Co., independent public
accountants, copies of which have been furnished to each
Bank, fairly present the consolidated financial condition of
the Borrower and its Consolidated Subsidiaries as at such
date and the consolidated results of the operations of the
Borrower and its Consolidated Subsidiaries for the period
ended on such date, all in accordance with generally
accepted accounting principles consistently applied (except
for mandated changes in accounting disclosed in such
financial statements). Since December 31, 1993 there has
been no Material Adverse Change.
(f) There is no pending or (to the knowledge of the
Borrower) threatened action or proceeding, including,
without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably
likely to have a Material Adverse Effect, other than as
disclosed on Schedule 4.01(f) (the "Disclosed Litigation")
--------------------
or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or Guaranty,
and there has been no change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 4.01(f)
which is reasonably likely to have a Material Adverse
Effect.
(g) None of the Borrower or any of its Subsidiaries is
engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will
be used in such manner as to cause any Lender to be in
violation of such Regulation U.
(h) The Borrower and each Subsidiary are in compliance
in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority, non-compliance with which would have
a Material Adverse Effect.
(i) In the ordinary course of its business, the
Borrower conducts reviews (which reviews are in varying
stages of implementation) of the effect of Environmental
Laws on the business, operations and properties of the
37
Borrower and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs.
On the basis of these reviews, the Borrower has reasonably
concluded that Environmental Laws are unlikely to have a
Material Adverse Effect.
(j) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that is
reasonably likely to result in the imposition of a lien in
excess of $25,000,000 on the assets of the Borrower and/or
any of its ERISA Affiliates in favor of the PBGC or the Plan
or in a requirement that the Borrower or any of its ERISA
Affiliates provide security to the Plan in an amount
exceeding $25,000,000.
(k) The most recently filed Schedule B (Actuarial
Information) annual report (Form 5500 Series) for each Plan
was complete and accurate and fairly presented the funding
status of such Plan as of the date of such Schedule B, and
since the date of such Schedule B, there has been no change
in such funding status which is reasonably likely to have a
Material Adverse Effect.
(l) Neither the Borrower nor any of its ERISA
Affiliates has incurred, or is reasonably expected to incur,
any Withdrawal Liability to any Multiemployer Plan which is
reasonably likely to have a Material Adverse Effect.
(m) Neither the Borrower nor any of its ERISA
Affiliates has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of
Title IV of ERISA, which in either case would be reasonably
likely to have a Material Adverse Effect, and no such
Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA, which in either case would be reasonably
likely to have a Material Adverse Effect.
(n) Except as set forth in the financial statements
described in Section 4.01(e) or delivered pursuant to
Section 5.01(e), the Borrower and its Subsidiaries have no
material liability with respect to "expected postretirement
benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(o) The Borrower and each Subsidiary have filed all
tax returns (Federal, state and local) required to be filed
and paid all taxes shown thereon to be due, including
interest and penalties other than those not yet delinquent
38
and except for those contested in good faith, or provided
adequate reserves for payment thereof.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
---------------------
Note shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will, unless the Required Lenders shall
otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc.
----------------------------------------
Preserve and maintain, and cause each Significant Subsidiary
to preserve and maintain, its corporate existence except as
permitted under Section 5.02(c); provided, however, that the
-------- -------
Borrower or any Significant Subsidiary shall not be required
to preserve the corporate existence of any Significant
Subsidiary if the Board of Directors of the Borrower shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or
such Significant Subsidiary, as the case may be, and that
the liquidation thereof is not disadvantageous in any
material respect to the Lenders.
(b) Compliance with Laws, Etc. Comply, and cause each
-------------------------
of its Subsidiaries to comply, in all material respects with
all applicable laws, rules, regulations and orders, where
any failure to comply would have a Material Adverse Effect,
such compliance to include, without limitation, paying
before the same become delinquent all material taxes,
assessments and governmental charges imposed upon it or upon
its property except to the extent contested in good faith.
(c) Maintenance of Properties, Etc. Maintain and
------------------------------
preserve, and cause each Significant Subsidiary to maintain
and preserve, all of its properties which are used or useful
in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the
failure to do so would not be reasonably likely to have a
Material Adverse Effect.
(d) Maintenance of Insurance. Maintain, and cause
------------------------
each Significant Subsidiary to maintain, insurance with
responsible and reputable insurance companies or
associations (including affiliated companies) for such
amounts, covering such risks and with such deductibles as is
usually carried by companies of comparable size engaged in
similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary
39
operates, or maintain a sound self-insurance program for
such risks as may be prudently self-insured.
(e) Reporting Requirements. Furnish to each Lender:
----------------------
(i) as soon as available and in any event within
60 days after the end of each of the first three
quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter
and related consolidated statements of income and cash
flow for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, prepared in accordance with generally accepted
accounting principles applicable to interim statements
and certified by the Treasurer or chief financial
officer of the Borrower;
(ii) as soon as available and in any event within
105 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for
the Borrower and its Consolidated Subsidiaries,
containing consolidated financial statements for such
year certified without exception as to scope by Arthur
Andersen & Co. or other independent public accountants
acceptable to the Required Lenders;
(iii) concurrently with the financial
statements delivered pursuant to clause (ii) above, a
certificate of the Treasurer, principal financial
officer or the principal accounting officer of the
Borrower, and concurrently with the financial
statements delivered pursuant to clause (i) above, a
certificate of the Treasurer or controller of the
Borrower, stating in each case that a review of the
activities of the Borrower and its Consolidated
Subsidiaries during the preceding quarter or fiscal
year, as the case may be, has been made under his
supervision to determine whether the Borrower has
fulfilled all of its respective obligations under this
Agreement and the Notes, and also stating that, to the
best of his knowledge, (x) neither an Event of Default
nor an event which, with the giving of notice or the
lapse of time or both, would constitute an Event of
Default has occurred, or (y) if any such Event of
Default or event exists, specifying such Event of
Default or event, the nature and status thereof, and
the action the Borrower is taking or proposes to take
with respect thereto;
40
(iv) as soon as possible and in any event within
five days after the occurrence of each Event of Default
and each event which, with the giving of notice or
lapse of time, or both, would constitute an Event of
Default, continuing on the date of such statement, a
statement of the chief financial officer of the
Borrower setting forth details of such Event of Default
or event and the action which the Borrower has taken
and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to its
security holders generally, and copies of all publicly
available reports and registration statements except
registration statements on Form S-8 which the Borrower
or any Subsidiary files with the Securities and
Exchange Commission or any national securities
exchange;
(vi) promptly after the filing or receiving
thereof each notice that the Borrower or any Subsidiary
receives from the PBGC regarding the Insufficiency of
any Plan, and, to any Lender requesting same, copies of
each Form 5500 annual return/report (including
Schedule B thereto) filed with respect to each Plan
under ERISA with the Internal Revenue Service;
(vii) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Lender may
from time to time reasonably request; and
(viii) promptly after any corporation shall
become a Principal Domestic Subsidiary, written notice
thereof, including the name of such corporation, the
jurisdiction of its incorporation and the nature of its
business.
SECTION 5.02. Negative Covenants. So long as any Note
------------------
shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, without the written consent of
the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit
----------
any of its Principal Domestic Subsidiaries to create or
suffer to exist, any Lien on any Restricted Property,
whether now owned or hereafter acquired, without making
effective provision (and the Borrower covenants and agrees
that it will make or cause to be made effective provision)
whereby the Notes shall be directly secured by such Lien
41
equally and ratably with (or prior to) all other
indebtedness secured by such Lien as long as such other
indebtedness shall be so secured; provided, however, that
-------- -------
there shall be excluded from the foregoing restrictions:
(i) Liens securing Debt not exceeding $10,000,000
which are existing on the date hereof on Restricted
Property; and, if any property now owned or leased by
Borrower or by a present Principal Domestic Subsidiary
at any time hereafter becomes a Principal Domestic
Manufacturing Property, any Liens existing on the date
hereof on such property securing the Debt now secured
or evidenced thereby;
(ii) Liens on Restricted Property of a Principal
Domestic Subsidiary as security for Debt of such
Subsidiary to the Borrower or to another Principal
Domestic Subsidiary;
(iii) in the case of any corporation which
becomes a Principal Domestic Subsidiary after the date
of this Agreement, Liens on Restricted Property of such
Principal Domestic Subsidiary which are in existence at
the time it becomes a Principal Domestic Subsidiary and
which were not incurred in contemplation of its
becoming a Principal Domestic Subsidiary;
(iv) any Lien existing prior to the time of
acquisition of any Principal Domestic Manufacturing
Property acquired by the Borrower or a Principal
Domestic Subsidiary after the date of this Agreement
through purchase, merger, consolidation or otherwise;
(v) any Lien on any Principal Domestic
Manufacturing Property (other than a Major Domestic
Manufacturing Property) acquired or constructed by the
Borrower or a Principal Domestic Subsidiary after the
date of this Agreement, which is placed on such
Property at the time of or within 120 days after the
acquisition thereof or prior to, at the time of or
within 120 days after completion of construction
thereof to secure all or a portion of the price of such
acquisition or construction or funds borrowed to pay
all or a portion of the price of such acquisition or
construction;
(vi) extensions, renewals or replacements of any
Lien referred to in clause (i), (iii), (iv) or (v) of
this subsection (a) to the extent that the principal
amount of the Debt secured or evidenced thereby is not
42
increased, provided that the Lien is not extended to
--------
any other Restricted Property unless the aggregate
value of Restricted Property encumbered by such Lien is
not materially greater than the value (as determined at
the time of such extension, renewal or replacement) of
the Restricted Property originally encumbered by the
Lien being extended, renewed or replaced;
(vii) Liens imposed by law, such as carriers',
warehousemen's, mechanics', materialmen's, vendors' and
landlords' liens, and Liens arising out of judgments or
awards against the Borrower or any Principal Domestic
Subsidiary which are (x) immaterial or (y) with respect
to which the Borrower or such Subsidiary at the time
shall currently be prosecuting an appeal or proceedings
for review and with respect to which it shall have
secured a stay of execution pending such appeal or
proceedings for review;
(viii) minor survey exceptions, minor
encumbrances, easements or reservations of, or rights
of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar
purposes, and zoning or other restrictions as to the
use of any Principal Domestic Manufacturing Property,
which exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the
opinion of the Borrower, in the aggregate materially
detract from the value of such Principal Domestic
Manufacturing Property or materially impair its use in
the operation of the business of the Borrower and its
Principal Domestic Subsidiaries; and
(ix) any Lien on Restricted Property not referred
to in clauses (i) through (viii) of this subsection (a)
if, at the time such Lien is created, incurred, assumed
--
or suffered to be created, incurred or assumed, and
after giving effect thereto and to the Debt secured or
evidenced thereby, the sum of (A) the aggregate amount
of all outstanding Debt of the Borrower and its
Principal Domestic Subsidiaries secured or evidenced by
Liens on Restricted Property which are not referred to
in clauses (i) through (viii) of this subsection (a)
and which do not equally and ratably secure the Notes
plus (B) the aggregate amount of all outstanding Sale
and Leaseback Debt of the Borrower and its Principal
Domestic Subsidiaries, shall not exceed 15% of
Consolidated Net Tangible Assets.
43
If at any time the Borrower or any Principal Domestic
Subsidiary shall create, incur or assume or suffer to be
created, incurred or assumed any Lien on Restricted Property
by which the Notes are required to be secured pursuant to
the requirements of this subsection (a), the Borrower will
promptly deliver to each Lender an opinion, in form and
substance reasonably satisfactory to the Required Lenders,
of the General Counsel of the Borrower (so long as the
General Counsel is able to render an opinion as to the
relevant local law) or other counsel reasonably satisfactory
to the Required Lenders, to the effect that the Notes have
been secured in accordance with such requirements.
(b) Sale and Leaseback Transactions. The Borrower
-------------------------------
will not, and will not permit any Principal Domestic
Subsidiary to, enter into any Sale and Leaseback Transaction
unless either:
(i) immediately after giving effect to such Sale
and Leaseback Transaction, the sum of (A) the aggregate
amount of all outstanding Sale and Leaseback Debt of
the Borrower and its Principal Domestic Subsidiaries
and (B) the aggregate amount of all outstanding Debt of
the Borrower and its Principal Domestic Subsidiaries
secured or evidenced by Liens on Restricted Property
which are not referred to in clauses (i) through (viii)
of Section 5.02(a) and which do not equally and ratably
secure the Notes, shall not exceed 15% of Consolidated
Net Tangible Assets; or
(ii) within 90 days after the effective date of
such Sale and Leaseback Transaction, the Borrower shall
apply or cause to be applied an amount equal to the net
proceeds of the sale of the property leased pursuant to
such Sale and Leaseback Transaction to the prepayment
or other retirement (other than any mandatory
prepayment or retirement) of the A Notes in accordance
with the provisions of Section 2.10 hereof, and/or
Senior Funded Debt of the Borrower or any of its
Principal Domestic Subsidiaries which is then subject
to optional prepayment or other retirement, and shall
deliver to the holders of the A Notes a certificate
executed by the principal financial officer, treasurer
or the chief executive officer of the Borrower
specifying the Debt so prepaid or retired; or
(iii) within 90 days after the effective date
of such Sale and Leaseback Transaction, the Borrower
shall deliver to the holders of the A Notes a
certificate executed by the principal financial
44
officer, treasurer or the chief executive officer of
the Borrower stating that an amount equal to the net
proceeds of the sale of the property leased pursuant to
such Sale and Leaseback Transaction has been applied,
or is in good faith being retained for application
within a reasonable time after the date of such Sale
and Leaseback Transaction (and the Borrower covenants
and agrees that such proceeds will be so applied), to
the payment of the cost of the purchase, construction
or improvement of one or more Principal Domestic
Manufacturing Properties.
(c) Mergers, Etc. Merge or consolidate with or into,
------------
or convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or transfer
assets to, any other Subsidiary of the Borrower, (ii) any
Subsidiary of the Borrower may merge or consolidate with or
into or transfer assets to the Borrower, and (iii) the
Borrower may merge with or transfer assets to, and any
Subsidiary of the Borrower may merge or consolidate with or
into or transfer assets to, any other Person, provided that
--------
(A) in each case, immediately after giving effect to such
proposed transaction, no Event of Default or event which,
with the giving of notice or lapse of time, or both, would
constitute an Event of Default would exist, (B) in the case
of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation and (C) in the case of
any such merger or consolidation of a Borrowing Subsidiary
of the Borrower with or into any other Person, the Borrower
shall remain the guarantor of such Subsidiary's obligations
hereunder.
(d) Debt. Create or suffer to exist, or permit any of
----
its Subsidiaries to create or suffer to exist, any Debt if
(after giving effect to the applications of the proceeds of
any Debt) the ratio of (x) the Operating Cash Flow of the
Borrower and its Subsidiaries on a consolidated basis for
the most recent four consecutive calendar quarters then
ended to (y) the aggregate amount of Debt of the Borrower
and its Subsidiaries on a consolidated basis is less than
0.25 to 1.
(e) Use of Proceeds. Use, or permit any of its
---------------
Subsidiaries to use, any proceeds of any Advance for the
purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of
45
the Federal Reserve System), or to extend credit to others
for such purpose, if, following application of the proceeds
of such Advance, more than 25% of the value of the assets
(either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) which are subject to
the restrictions of Section 5.02(a) or (b) or subject to any
restriction contained in any agreement or instrument between
the Borrower and any Lender or any Affiliate of any Lender,
relating to Debt and within the scope of Section 6.01(d)
(without giving effect to any limitation in principal amount
contained therein) will be margin stock (as defined in such
Regulation U).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
-----------------
following events ("Events of Default") shall occur and be
-----------------
continuing:
(a) The Borrower or any Borrowing Subsidiary shall
fail to pay when due any principal of any Note or to pay,
within five days after the date when due, the interest on
any Note, any fees or any other amount payable hereunder or
under any Guaranty; or
(b) Any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement or any Guaranty shall
prove to have been incorrect in any material respect when
made; or
(c) The Borrower shall fail to perform or observe (i)
any term, covenant or agreement contained in Section 5.02,
or (ii) any other term, covenant or agreement contained in
this Agreement (other than those referred to in clauses (a)
and (b) of this Section 6.01) on its part to be performed or
observed if the failure to perform or observe such other
term, covenant or agreement referred to in this clause (ii)
shall remain unremedied for 30 days after written notice
thereof shall have been given to the Borrower by any Lender;
or
(d) The Borrower or any of its Significant
Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt which is outstanding in a principal
amount of at least $50,000,000 in the aggregate (but
excluding Debt evidenced by the Notes) of the Borrower or
such Subsidiary (as the case may be), when the same becomes
46
due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the
effect of such event or condition is (i) to accelerate the
maturity of such Debt or (ii) if the long-term senior debt
of the Borrower is not then rated either at or above BBB by
S&P or at or above Baa2 by Moody's, to permit the
acceleration of the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant
Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed and unstayed for a
period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur; or the
Borrower or any of its Significant Subsidiaries shall take
any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $25,000,000 (calculated after deducting from the
sum so payable each amount thereof which will be paid by any
insurer that is not an Affiliate of the Borrower to the
extent such insurer has confirmed in writing its obligation
to pay such amount with respect to such judgment or order)
shall be rendered against the Borrower or any of its
47
Subsidiaries and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 20 consecutive
days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(g) The Borrower or any of its ERISA Affiliates shall
have incurred or, in the reasonable opinion of the Required
Lenders, shall be reasonably likely to incur liability in
excess of $50,000,000 in the aggregate as a result of one or
more of the following events which shall have occurred: (i)
any ERISA Event; (ii) the partial or complete withdrawal of
the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan.
(h) Any Guaranty or any provision of any Guaranty
after delivery thereof pursuant to Section 7.06(b) shall for
any reason cease to be valid and binding on the Borrower, or
the Borrower shall so state in writing;
then, and in any such event, the Required Lenders may (i) by
notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) by notice to the Borrower, declare
the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the
-------- -------
event of an actual or deemed entry of an order for relief with
respect to the Borrower or any of its Subsidiaries which borrows
hereunder under the Federal Bankruptcy Code, (A) the obligation
of each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. The Lenders giving any
notice hereunder shall give copies thereof to all other Lenders,
but failure to do so shall not impair the effect of such notice.
In the event the Borrower assigns to one or more
Subsidiaries the right to borrow under this Agreement (as
provided in Section 7.06), each reference in this Article VI to
the Borrower shall be a reference to each such Subsidiary as well
as to the Borrower.
48
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment or waiver
---------------
of any provision of this Agreement or the A Notes, nor consent to
any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
-------- -------
waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, 3.02 or 3.03 (if and to the
extent that the Borrowing for which such condition or conditions
are waived would result in an increase in the aggregate amount of
A Advances over the aggregate amount of A Advances outstanding
immediately prior to such Borrowing), (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the A Notes or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or
interest on, the A Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Notes, or the number
of Lenders, which shall be required for the Lenders or any of
them to take any action hereunder or (f) amend Section
7.06(b)(ii) or this Section 7.01. No amendment or waiver of any
provision of a B Note, nor any consent to any departure by the
Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the holder of such B Note.
SECTION 7.02. Notices, Etc. All notices and other
------------
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at 300 Park Avenue,
New York, New York 10022, Attention: Treasurer; if to any
Borrowing Subsidiary, c/o the Borrower at its above address; if
to any Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; and if to any other Lender, at its
Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; or, as to each
party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company, respectively,
except that notices and communications to a Lender pursuant to
Article II shall not be effective until received by such Lender.
49
SECTION 7.03. No Waiver; Remedies. No failure on the
-------------------
part of any Lender 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 7.04. Costs, Expenses, Etc. (a) The Borrower
--------------------
agrees to pay on demand all out-of-pocket costs and expenses in
connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the
Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-
pocket expenses of not more than one counsel for the
Documentation Advisors, with respect thereto and with respect to
advising the Documentation Advisors as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and
expenses of the Lenders), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under
this Section 7.04(a).
(b) The Borrower undertakes and agrees to indemnify
and hold harmless each Lender against any and all claims,
damages, liabilities and expenses (including but not limited to
fees and disbursements of counsel) which may be incurred by or
asserted against such Lender, except where the direct result of
such Lender's own negligence or willful misconduct, in connection
with or arising out of any investigation, litigation, or
proceeding (whether or not any of the Lenders is a party thereto)
relating to or arising out of this Agreement, the Notes or any
actual or proposed use of proceeds of Advances hereunder,
including but not limited to any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or any
portion of the stock or substantially all of the assets of any
Person.
(c) If any payment of principal of any Adjusted CD
Rate Advance or Eurodollar Rate Advance is made other than on the
last day of the Interest Period for such A Advance, as a result
of a prepayment pursuant to Section 2.10, 2.11(c) or 5.02(b)(ii)
or acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, the Borrower shall upon demand by
any Lender pay to such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses which it
50
may reasonably incur as a result of such payment, including,
without limitation, any loss (including any loss of margin for
the period after any such prepayment), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain such A Advance.
(d) Without prejudice to the survival of any other
agreement or obligation of the Borrower hereunder, the agreements
and obligations of the Borrower contained in Sections 2.13 and
7.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 7.05. Right of Set-off. Upon (i) the
----------------
occurrence and during the continuance of any Event of Default and
(ii) the action of the Required Lenders to declare the Notes due
and payable pursuant to the provisions of Section 6.01, each
Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and any Note held by such
Lender, whether or not (in the case of obligations other than
principal and interest) such Lender shall have made any demand
under this Agreement or such Note and although such obligations
(other than principal) may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall
--------
not affect the validity of such set-off and application. The
rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender and its
Affiliates may have.
SECTION 7.06. Binding Effect; Assignment by Borrower.
--------------------------------------
(a) This Agreement shall become effective when it shall have
been executed by the Borrower and by each Bank and thereafter
shall be binding upon and inure to the benefit of the Borrower
and each Lender and (subject to Section 7.07) their respective
successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
(b) Notwithstanding subsection (a) above, the Borrower
shall have the right to assign its rights to borrow hereunder (in
whole or in part) to any Subsidiary (a "Borrowing Subsidiary"),
--------------------
provided that (i) such Subsidiary assumes the obligations of the
- --------
Borrower hereunder relating to the rights so assigned by
51
executing and delivering an assignment and assumption agreement
reasonably satisfactory to the Required Lenders, covering
notices, places of payment and other mechanical details, (ii) the
Borrower guarantees such Subsidiary's obligations thereunder and
under the Notes issued in connection with such assignment and
assumption by executing and delivering a Guaranty substantially
in the form of Exhibit F hereto (a "Guaranty") and (iii) the
--------
Borrower and such Subsidiary furnish the Lenders with such other
documents and legal opinions as the Required Lenders may
reasonably request relating to the existence of such Subsidiary,
its corporate power and authority to request Advances hereunder,
and the authority of the Borrower to execute and deliver such
Guaranty and the legality, validity, binding effect and
enforceability of such assignment, assumption and Guaranty. No
such assignment and assumption shall substitute a Borrowing
Subsidiary for the Borrower or relieve the Borrower named herein
(i.e., Colgate-Palmolive Company) of its obligations with respect
to the covenants, representations, warranties, Events of Default
and other terms and conditions of this Agreement, all of which
shall continue to apply to such Borrower and its Subsidiaries.
SECTION 7.07. Assignments and Participations by
---------------------------------
Lenders. (a) Each Lender may assign to one or more banks or
- -------
other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitment, the A Advances owing to it and the A
Note or Notes held by it); provided, however, that (i) each such
-------- -------
assignment shall be of a constant, and not a varying, percentage
of all rights and obligations under this Agreement (other than
any B Advances or B Notes), (ii) each assignee shall be subject
to the prior written approval and acceptance of the Borrower
(unless the assignee is an Affiliate of the assignor), and (iii)
the parties to each such assignment shall execute and deliver to
the Borrower, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any A Note or Notes
subject to such assignment, and give notice thereof to each other
Lender. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder
and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto).
52
Notwithstanding anything to the contrary contained in
this Agreement, no Lender may assign all or any part of, or any
interest in, such Lender's A Advances and such Lender's rights
and obligations hereunder and under the A Notes issued to it
hereunder, unless such Lender is simultaneously assigning to the
same assignee a ratable share of such Lender's rights and
obligations under the 364 Day Credit Agreement and the "A Notes"
(as defined therein) issued to it thereunder.
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any
Borrowing Subsidiary or the performance or observance by the
Borrower or any Borrowing Subsidiary of any of its obligations
under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and/or
Section 5.01(e)(i) and (ii) and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon 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; and (vi) such assignee
agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) The Borrower shall maintain at its address
referred to in Section 7.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the A Advances owing to,
each Lender from time to time (the "Register"). The entries in
--------
the Register shall be conclusive and binding for all purposes,
absent manifest error, with regard to the names, addresses and
Commitments of each Lender, and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
53
all purposes of this Agreement. The Register shall be available
for inspection and copying by any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, together with
any A Note or Notes subject to such assignment, the Borrower
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
the other Lenders. Within five Business Days after its receipt
of such notice, the Borrower, at its own expense, shall execute
and deliver to the assignee in exchange for the surrendered A
Note or Notes a new A Note to the order of such assignee in an
amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new A Note to the order of the
assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new A Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or
other entities any B Note or Notes held by it. Each Lender may
assign to any Affiliate of such Lender, without the consent of
the Borrower, its interest in this Agreement, the A Advances
owing to it and the A Note held by it, but such assignment shall
not relieve such assigning Lender of its obligations hereunder
including, without limitation, its Commitment.
(f) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) such
Lender shall not grant to any such participant the right to
participate in the Lender's actions on amendments, waivers or
consents permitted under this Agreement, except to the extent
54
that such actions would change the amount of the Commitment, the
principal amount, payment dates or maturity of any Notes or
Advances, the interest rate, or the method of computing the
interest rate thereon, or any fees payable hereunder.
(g) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 7.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
--------
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(h) No assignee of a Lender shall be entitled to the
benefits of Sections 2.11 and 2.13 in relation to circumstances
applicable to such assignee immediately following the assignment
to it which at such time (if a payment were then due to the
assignee on its behalf from the Borrower) would give rise to any
greater financial burden on the Borrower under Sections 2.11 and
2.13 than those which it would have been under in the absence of
such assignment.
(i) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time, without the consent
of the Borrower, create a security interest in all or any portion
of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A
of the Board of Governors of the Federal Reserve System.
SECTION 7.08. Change of Control. (a) Notwithstanding
-----------------
any other provision of this agreement, the Required Lenders may,
upon and after the occurrence of a Change in Control, by notice
to the Borrower (i) immediately suspend or terminate the
obligations of the Lenders to make Advances hereunder and/or (ii)
require the Borrower to repay all or any portion of the Advances
on the date or dates specified in the notice which shall not be
less than 30 days after the giving of the notice.
(b) For purposes of this Section "Change in Control"
-----------------
shall mean the happening of any of the following events:
(i) An acquisition, directly or indirectly, by
any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) of beneficial
------------
ownership (within the meaning of Rule 13d-3 promulgated
55
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Borrower or
(B) the combined voting power of the then outstanding voting
securities of the Borrower entitled to vote generally in the
election of directors; excluding, however (1) any
acquisition by the Borrower, or (2) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Borrower or any corporation controlled by
the Borrower; or
(ii) A change in composition of the Board of
Directors of the Borrower (the "Board") such that the
-----
individuals who, as of the date hereof, constitute the Board
(such Board shall be hereinafter referred to as the
"Incumbent Board") cease for any reason to constitute at
---------------
least a majority of the Board; provided, however, for
-------- -------
purposes of this Section 7.08, that any individual who
becomes a member of the Board subsequent to the date hereof,
whose election, or nomination for election by the Borrower's
stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent Board; but,
provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual
or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent
Board.
SECTION 7.09. Mitigation of Adverse Circumstances. If
-----------------------------------
circumstances arise which would or would upon the giving of
notice result in a payment or an increase in the amount of any
payment to be made to a Lender by reason of Section 2.02(c), 2.11
or 2.12, or which would result in a Lender being unable to make
Eurodollar Rate Advances by reason of Section 2.02(b), then,
without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under any of the such Sections, such
Lender shall promptly, upon becoming aware of the same, notify
the Borrower thereof and, in consultation with the Borrower, take
such reasonable steps as may be open to it to mitigate the
effects of such circumstances, including the transfer of its
Applicable Lending Office to another jurisdiction; provided that
--------
such Lender shall be under no obligation to make any such
transfer if in the bona fide opinion of such Lender, such
---------
transfer would or would likely have an adverse effect upon its
business, operations or financial condition.
56
SECTION 7.10. Governing Law. This Agreement and the
-------------
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 7.11. Execution in Counterparts. This
-------------------------
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 7.12 Jurisdiction, Etc. (a) Each of the
-----------------
parties hereto (including each Borrowing Subsidiary) hereby
irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this
Agreement, the Notes, or any Guaranty, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State or, to the extent permitted
by law, in such federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this
Agreement, the Notes or any Guaranty in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
such New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 7.13. Waiver of Jury Trial. Each of the
--------------------
Borrower, the Borrowing Subsidiaries and the Lenders hereby
irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement, the
Notes or any Guaranty or the actions of any Lender or
57
Documentation Advisor in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
COLGATE-PALMOLIVE COMPANY
By /s/ Brian J. Heidtke
--------------------
Vice President and Corporate
Treasurer
58
Banks
-----
Commitment
- ----------
$27,777,777.78 ABN AMRO BANK N.V.,
NEW YORK BRANCH
By /s/ Denise A. Gallagher
-----------------------
Vice President
By /s/ Megan M. Leitzinger
-----------------------
Corporate Banking Officer
$27,777,777.78 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Lucy H. Coyle
-----------------
Vice President
$27,777,777.78 THE BANK OF NEW YORK
By /s/ Mary Anne Zagroba
---------------------
Vice President
59
$27,777,777.78 BANQUE NATIONALE DE PARIS
By /s/ Bonnie G. Eisenstat
-----------------------
Vice President
By /s/ Richard L. Sted
-------------------
Vice President
$27,777,777.78 BANQUE PARIBAS
By /s/ Mary T. Finnegan
--------------------
Vice President
By /s/ Stanley P. Berkman
----------------------
Senior Vice President
$27,777,777.78 CHASE MANHATTAN BANK, N.A.
By /s/ Elyse O'Hara
----------------
Managing Director
$27,777,777.78 CHEMICAL BANK
By /s/ Robert P. Kellas
--------------------
Vice President
60
$27,777,777.78 CITIBANK, N.A.
By /s/ W. Dwight Raiford
---------------------
Vice President
$27,777,777.78 COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
By /s/ Dana W. Hemenway
--------------------
Vice President
By /s/ Robert B. Benoit
--------------------
Senior Vice President
$27,777,777.78 CREDIT SUISSE
By /s/ Michael C. Mast
-------------------
Member of Senior Management
By /s/ Chris T. Horgan
-------------------
Associate
$27,777,777.78 DEUTSCHE BANK AG
By /s/ Robert A. Maddux
---------------------
Director
By /s/ Frederick W. Laird
-----------------------
Director
$27,777,777.78 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ S. Thomas Knoff
-------------------
61
Assistant Vice President
$27,777,777.78 J. P. MORGAN DELAWARE
By /s/ David J. Morris
-------------------
Vice President
$27,777,777.78 NATIONAL WESTMINSTER BANK PLC
By /s/ Richard A. Stevens
----------------------
Vice President
$27,777,777.78 NATIONSBANK OF NORTH CAROLINA,
N.A.
By /s/ Moses J. Sawney
-------------------
Vice President
$27,777,777.78 PNC BANK, NATIONAL ASSOCIATION
By /s/ Mark Williams
-----------------
Vice President
$27,777,777.78 ROYAL BANK OF CANADA
By /s/ Linda Murrer
----------------
Senior Manager
62
$27,777,777.78 SOCIETE GENERALE
By /s/ Bruce Drossman
------------------
Vice President
$500,000,000 Total of the Commitments
-----------
EXHIBIT A-1
[FORM OF A NOTE]
PROMISSORY NOTE
U.S.$[Lender's Commitment] Dated: , 199
--------------------- --------- -
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES
--------
TO PAY to the order of (the "Lender")
--------------------------- ------
for the account of its Applicable Lending Office (as defined in
the Five Year Credit Agreement referred to below) the principal
amount of each Base Rate Advance (as defined in the Five Year
Credit Agreement referred to below) on the Termination Date (as
defined in the Five Year Credit Agreement referred to below) and
the principal amount of each other A Advance (as defined below)
made by the Lender to the Borrower pursuant to the Five Year
Credit Agreement on the last day of the Interest Period (as
defined in the Five Year Credit Agreement) for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each A Advance from the date of such A
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the Five Year Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to the Lender at
_______________________________________, in immediately available
funds. Each A Advance made by the Lender to the Borrower
pursuant to the Five Year Credit Agreement, the date on which it
is due, the interest rate thereon and all prepayments made on
account of principal thereof shall be recorded by the Lender on
its books, and for each A Advance outstanding at the time of any
transfer hereof the same information shall be endorsed on the
grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the A Notes referred to
in, and is entitled to the benefits of, the Five Year Credit
Agreement dated as of March __, 1994 (as amended or otherwise
modified from time to time, the "Five Year Credit Agreement")
--------------------------
among the Borrower, the Lender and certain other lenders party
thereto. The Five Year Credit Agreement, among other things, (i)
provides for the making of advances (the "A Advances") by the
----------
Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above
2
mentioned, the indebtedness of the Borrower resulting from each
such A Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States.
COLGATE-PALMOLIVE COMPANY
By
--------------------------
Title:
- ---------------
[Note: Upon request by a Lender, the Borrower will issue
separate A Notes payable to one or more offices of the
Lender, for Base Rate Advances, CD Rate Advances and
Eurodollar Rate Advances. This form will be modified
to refer to the specific type of A Advance and to the
appropriate maturity of such type of A Advance.]
SCHEDULE TO PROMISSORY NOTE DATED , 199
---------- -
OF COLGATE-PALMOLIVE COMPANY
ADVANCES AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------
| Amount | Date | | | |
| of | Principal | | Principal | Unpaid | Notation
Date | Advance | Due | Rate | Prepaid | Principal | Made By
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
EXHIBIT A-2
[FORM OF B NOTE]
PROMISSORY NOTE
U.S.$ Dated: , 199
-------------- -------- -
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES
--------
TO PAY to the order of (the
-----------------------------
"Lender") for the account of its Applicable Lending Office (as
------
defined in the Five Year Credit Agreement referred to below), on
, 19 , the principal amount of Dollars
- ---------- -- --------------
(U.S.$ ).
--------------
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
Interest Rate: % per annum (calculated on the basis of a
----
year of 360 days for the actual number of days elapsed).
Interest Payment Date or Dates:
-------------------------
Both principal and interest are payable in lawful money
of the United States of America to the Lender at its office at
, in immediately available
- -----------------------------------
funds.
This Promissory Note is one of the B Notes referred to
in, and is entitled to the benefits of, the Five Year Credit
Agreement dated as of March , 1994 (as amended or otherwise
--
modified from time to time, the "Five Year Credit Agreement")
--------------------------
among the Borrower, the Lender and certain other lenders party
thereto. The Five Year Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
2
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States.
COLGATE-PALMOLIVE COMPANY
By
-------------------------
Title:
EXHIBIT B-1
FORM OF
NOTICE OF A BORROWING
Each of the Lenders party
to the Five Year Credit Agreement
referred to below
- ------------------------
[Date]
- ------------------------
Attention:
-------------------
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to
the Five Year Credit Agreement dated as of March , 1994 (as
--
amended or otherwise modified through the date hereof, the "Five
----
Year Credit Agreement", the terms defined therein being used
- ---------------------
herein as therein defined) among the undersigned and certain
Lenders party thereto, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Five Year Credit Agreement that
the undersigned hereby requests an A Borrowing under the Five
Year Credit Agreement, and in that connection sets forth below
the information relating to such A Borrowing (the "Proposed A
----------
Borrowing") as required by Section 2.02(a) of the Five Year
- ---------
Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
, 199 .
----------- -
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Adjusted CD Rate Advances] [Base Rate
Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing
is $ .
-----------
[(iv) The Interest Period for each A Advance made as
part of the Proposed A Borrowing is [ days] [
---- ----
month[s]].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed A Borrowing:
2
(A) the representations and warranties contained in
Section 4.01 are correct, before and after giving effect to
the Proposed A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
and
(B) no event has occurred and is continuing, or would
result from such Proposed A Borrowing or from the
application of the proceeds therefrom, which constitutes an
Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or
both.
[As an alternative, the following three representations may be
substituted if the proviso in Section 3.02 is applicable:
(A) The Proposed A Borrowing will not increase the
aggregate outstanding amount of A Advances owing to each
Lender over the aggregate outstanding amount of A Advances
owing to such Lender immediately prior to such A Borrowing;
(B) the representations and warranties contained in
Section 4.01 (excluding those contained in the last sentence
of subsection (e) and in subsection (f) thereof) are
correct, before and after giving effect to the Proposed A
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(C) no event has occurred and is continuing, or would
result from such Proposed A Borrowing or from the
application of the proceeds therefrom, which constitutes an
Event of Default.]
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By
--------------------------
Title:
EXHIBIT B-2
FORM OF
NOTICE OF B BORROWING
Each of the Lenders party
to the Five Year Credit Agreement
referred to below
- ------------------------
[Date]
- ------------------------
Attention:
-------------------
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to
the Five Year Credit Agreement dated as of March , 1994 (as
--
amended or otherwise modified through the date hereof, the "Five
----
Year Credit Agreement", the terms defined therein being used
- ---------------------
herein as therein defined) among the undersigned and certain
Lenders party thereto, and hereby gives you notice pursuant to
Section 2.03 of the Five Year Credit Agreement that the
undersigned hereby requests a B Borrowing under the Five Year
Credit Agreement, and in that connection sets forth the terms on
which such B Borrowing (the "Proposed B Borrowing") is requested
--------------------
to be made:
(A) Date of Proposed B Borrowing
----------------
(B) Aggregate Amount of Proposed B Borrowing
-----------
(C) Interest Rate Basis
----------------
(D) Maturity Date
----------------
(E) Interest Payment Date(s)
----------------
(F)
-------------------- ----------------
(G)
-------------------- ----------------
(H)
-------------------- ----------------
2
The undersigned hereby certifies that the following
statements are true on the date hereof and will be true on the
date of the Proposed B Borrowing:
(a) the representations and warranties contained in
Section 4.01 are correct, before and after giving effect to
the Proposed B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed B Borrowing or from the application
of the proceeds therefrom, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both;
(c) The information concerning the undersigned that
has been provided in writing to each Lender by the
undersigned in connection with the Five Year Credit
Agreement as required by the terms of the Five Year Credit
Agreement did not include an untrue statement of a material
fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading; provided that with regard to any information
--------
delivered to a Lender pursuant to Section 5.01(e)(vii) of
the Five Year Credit Agreement, the representation and
warranty in this paragraph (c) shall apply only to such
information that is specifically identified to the
undersigned at the time the request is made as information
(i) that may be delivered to a purchaser of a B Note, or
(ii) that is otherwise requested to be subject to this
paragraph (c).
(d) the aggregate amount of the Proposed B Borrowing
and all other Borrowings to be made on the same day under
the Five Year Credit Agreement is within the aggregate
amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with
Section 2.03(e) of the Five Year Credit Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
----------------------
Title:
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated , 199
--------- -
Reference is made to the Five Year Credit Agreement
dated as of March , 1994 (as amended or otherwise modified
--
through the date hereof, the "Five Year Credit Agreement") among
--------------------------
COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower"), and the Lenders (as defined in the Five Year Credit
--------
Agreement). Terms defined in the Five Year Credit Agreement are
used herein with the same meaning.
(the "Assignor") and (the
--------------- -------- -------------
"Assignee") agree as follows:
--------
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights
and obligations under the Five Year Credit Agreement as of the
date hereof (other than in respect of B Advances and B Notes)
which represents the percentage interest specified on Schedule 1
of all outstanding rights and obligations under the Five Year
Credit Agreement (other than in respect of B Advances and B
Notes), including, but not limited to, such interest in the
Assignor's Commitment, the A Advances owing to the Assignor, and
the A Note[s] held by the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of
the A Advances owing to the Assignee will be as set forth in
Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by
it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Five Year Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Five
Year Credit Agreement or any other instrument or document
furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the
Five Year Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the A Note[s]
referred to in paragraph 1 above and requests that the Borrower
exchange such A Note[s] for a new A Note payable to the order
of the Assignee in an amount equal to the Commitment assumed
by the Assignee pursuant hereto or new A Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed
by the Assignee pursuant hereto and to the order of the Assignor in
an amount equal to the Commitment retained by the Assignor under the
Five Year Credit Agreement, respectively, as specified on Schedule 1 hereto.
2
3. The Assignee (i) confirms that it has received a
copy of the Five Year Credit Agreement, together with copies of
the financial statements referred to in Section 4.01 or delivered
pursuant to Section 5.01(e) thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without
reliance upon the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Five Year Credit Agreement; (iii) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the Five Year Credit Agreement
are required to be performed by it as a Lender; [and] (iv)
specifies as its CD Lending Office, Domestic Lending Office (and
address for notices) and Eurodollar Lending Office the offices
set forth beneath its name on the signature pages hereof [and (v)
attaches the forms prescribed by the Internal Revenue Service of
the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee
under the Five Year Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax
treaty].*
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Borrower for acceptance and recording by the Borrower.
The effective date of this Assignment and Acceptance shall be the
date of acceptance thereof by the Borrower, unless otherwise
specified on Schedule 1 hereto (the "Effective Date").
--------------
- -------------------
* If the Assignee is organized under the laws of a
jurisdiction outside the United States.
3
5. Upon such acceptance and recording by the Borrower,
as of the Effective Date, (i) the Assignee shall be a party to
the Five Year Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations
of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Five Year Credit
Agreement.
6. Upon such acceptance and recording by the Borrower,
from and after the Effective Date, the Borrower shall make all
payments under the Five Year Credit Agreement and the A Notes in
respect of the interest assigned hereby (including, but not
limited to, all payments of principal, interest and commitment
and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the Five Year Credit Agreement and the A Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated , 19
----- --
Section 1.
- ---------
Percentage Interest: %
-------
Section 2.
- ---------
Assignee's Commitment: $
-------
Assignor's Retained Commitment: $
-------
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee: $
-------
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignor: $
-------
An A Note payable to the order of the Assignee
Dated: , 19
--------- ---
Principal amount:
------
An A Note payable to the order of the Assignor
Dated: , 19
--------- ---
Principal amount:
------
Section 3.
- ---------
Effective Date*: ,19
--------- ---
[NAME OF ASSIGNOR]
By:
--------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
--------------------------------------
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and address for
notices):
[Address]
Eurodollar Lending Office:
[Address]
* This date should be no earlier than the date of acceptance
by the Borrower.
2
Accepted this day
----
of , 19
------------ --
COLGATE-PALMOLIVE COMPANY
By:
----------------------------------------------------
Title:
EXHIBIT D
FORM OF OPINION OF COMPANY COUNSEL
-------------------, 1994
To each of the Lenders party
to the Credit Agreement
referred to below
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary for
Colgate-Palmolive Company (hereinafter referred to as the "Borrower"), I
am familiar with the $500,000,000 Five Year Credit Agreement, dated as
of April 8, 1994 among the Borrower and the Lenders thereto (the "Credit
Agreement"). This opinion is being furnished to you pursuant to Section
3.01(e) of the Credit Agreement. Terms used in this opinion which are
defined in the Credit Agreement are used herein as so defined.
I or attorneys under my supervision in the Borrower's Legal
Department have examined such records, certificates, and other documents
and such questions of law as I have considered necessary or appropriate
for purposes of this opinion. In addition, I or attorneys under my
supervision in the Borrower's Legal Department have examined such
records, certificates, and other documents, relied on upon certificates
of the officers of the Borrower and performed such investigations as I
have considered necessary or appropriate for purposes of this opinion in
respect of matters of fact. I believe that both you and I are justified
in relying upon such certificates. Based upon, and subject to, to
foregoing, it is my opinion that:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Notes and the Guaranties are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by-laws or
(ii) law or (to my knowledge after due inquiry) any contractual
restriction binding on or affecting the Borrower. The Credit Agreement
and the A Notes have been duly executed and delivered on behalf of the
Borrower.
To each of the Lenders party
to the Credit Agreement
referred to below
-------------------, 1994
Page 2
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of the Credit Agreement, the Notes and the Guaranties.
4. The Credit Agreement is and the A Notes will be, and each of
the Guaranties and B Notes when executed and delivered will be, upon the
receipt of due consideration therefore, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
5. To my actual knowledge (after due inquiry), there is no pending
or threatened action or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator which
may have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of the Credit Agreement, any Notes
and any Guaranties.
I am licensed to practice law in the State of New York and do
not purport to be an expert on, or to express any opinion (other than to
the extent necessary to render the opinions set forth in paragraph (1)
above, which opinion is based on certificates of public officials)
concerning any law other than the law of the State of New York, the
General Corporation Law of the State of Delaware and the Federal law of
the United States. The opinions expressed herein are solely for your
benefit and may not be relied upon in any manner or for any purpose by
any other persons.
The opinion set forth in paragraph (4) above is subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, and to
the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding equity or at law).
Very truly yours,
EXHIBIT E
OPINION OF SPECIAL NEW YORK COUNSEL
TO THE DOCUMENTATION ADVISORS
_______, 1994
To the Lenders party to the
Credit Agreement referred
to below
Colgate-Palmolive Company
-------------------------
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank,
N.A. and Morgan Guaranty Trust Company of New York as
Documentation Advisors in connection with the preparation,
execution and delivery of the Five Year Credit Agreement dated as
of April 8, 1994 (the "Credit Agreement") among Colgate-Palmolive
Company (the "Borrower") and each of you. Terms defined in the
Credit Agreement are used herein as therein defined.
In that connection, we have examined the following
documents:
(1) A counterpart of the Credit Agreement, executed by
each of the parties thereto.
(2) The documents furnished by the Borrower pursuant
to Section 3.01 of the Credit Agreement, including the
opinion of , General Counsel of the
-------------------
Borrower.
In our examination of the documents referred to above,
we have assumed the authenticity of all such documents submitted
to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents, and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that each of you has duly
executed and delivered, with all necessary power and authority
(corporate and otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve
conclusions as to the matters set forth in paragraphs 1, 2 and 3
of the above-mentioned opinion of counsel for the
Borrower, we have assumed without independent investigation the
correctness of the matters set forth in such paragraphs, our
opinion being subject to the assumptions, qualifications and
limitations set forth in such opinion with respect thereto.
2
Based upon the foregoing and upon such other
investigation as we have deemed necessary, we are of the
following opinion:
1. The Credit Agreement and each Note delivered on
the date hereof are the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
2. The above-mentioned opinion of counsel for the
Borrower, and the other documents referred to in item (2)
above, are substantially responsive to the requirements of
the Credit Agreement.
Our opinions above are subject to the following qualifications:
(a) Our opinion in paragraph 1 above is subject to the
effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(b) Our opinion in paragraph 1 above is also subject
to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(c) Our opinions expressed above are limited to the
law of the State of New York and the Federal law of the
United States, and we do not express any opinion herein
concerning any other law. Without limiting the generality
of the foregoing, we express no opinion as to the effect of
the law of any jurisdiction other than the State of New York
wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought which limits
the rates of interest legally chargeable or collectible.
Very truly yours,
SHEARMAN & STERLING
LCJ:KBM
EXHIBIT F
FORM OF GUARANTY
GUARANTY, dated , 19 , made by COLGATE-
---------- --
PALMOLIVE COMPANY, a corporation organized and existing under the
laws of Delaware (the "Guarantor"), in favor of each of the
---------
Lenders (the "Lenders") parties to the Five Year Credit Agreement
-------
(as defined below).
PRELIMINARY STATEMENTS.
(1) The Lenders and the Guarantor have entered into a
Five Year Credit Agreement dated as of March , 1994 (said
--
Agreement, as it may heretofore have been or hereafter be amended
or otherwise modified from time to time, being the "Five Year
---------
Credit Agreement", the terms defined therein and not otherwise
- ----------------
defined herein being used herein as therein defined). Pursuant
to Section 7.06(b) of the Five Year Credit Agreement and an
Assignment and Assumption Agreement dated , 19 the
---------- --
Guarantor has assigned to , a
----------------------------
corporation organized and existing under the laws of
-------------
(the "Assignee"), certain rights under the Five Year Credit
- ----- --------
Agreement, so that the Assignee may borrow and receive Advances
under the Five Year Credit Agreement. The Assignee is a
Subsidiary of the Guarantor and engages in business transactions
with the Guarantor, and the Guarantor represents that it will
derive substantial direct and indirect benefit from all Advances
to the Assignee.
(2) It is a condition precedent to the making of such
assignment to the Assignee that the Guarantor shall have executed
and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in
order to induce the Lenders to accept such assignment and to make
Advances to the Assignee under the Five Year Credit Agreement,
the Guarantor hereby agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby
--------
unconditionally guarantees the punctual payment when due, whether
at stated maturity, by acceleration or otherwise, of all
obligations of the Assignee now or hereafter existing under the
Five Year Credit Agreement and under the Notes evidencing
Advances to the Assignee (the "Notes"), whether for principal,
-----
interest, fees, expenses or otherwise (such obligations being the
"Obligations"), and agrees to pay any and all expenses (including
-----------
counsel fees and expenses) incurred by the Lenders in enforcing
any rights under this Guaranty. Without limiting the generality
of the foregoing, the Guarantor's liability shall extend to all
amounts which constitute part of the Obligations and would be
owed by the Assignee to the Lenders under the Five Year Credit
2
Agreement and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the
Assignee.
SECTION 2. Guaranty Absolute. The Guarantor
-----------------
guarantees that the Obligations will be paid strictly in
accordance with the terms of the Five Year Credit Agreement and
the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Lenders with respect thereto. The
obligations of the Guarantor under this Guaranty are independent
of the Obligations, and a separate action or actions may be
brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against
the Assignee or whether the Assignee is joined in any such action
or actions. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Five
Year Credit Agreement, the Notes or any other agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any
consent to departure from the Five Year Credit Agreement or
the Notes, including, without limitation, any increase in
the Obligations resulting from the extension of additional
credit to the Assignee or any of its subsidiaries or
otherwise;
(iii) any taking, exchange, release or non-perfection
of any collateral, or any taking, release or amendment or
waiver of or consent to departure from any other guaranty,
for all or any of the Obligations;
(iv) any manner of application of collateral, or
proceeds thereof, to all or any of the Obligations, or any
manner of sale or other disposition of any collateral for
all or any of the Obligations or any other assets of the
Assignee or any of its subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of the Assignee or any of
its subsidiaries or its status as a Subsidiary of the
Guarantor; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Assignee or a guarantor.
3
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 any
Lender upon the insolvency, bankruptcy or reorganization of the
Assignee or otherwise, all as though such payment had not been
made.
SECTION 3. Waiver. The Guarantor hereby waives
------
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations, this Guaranty or any
circumstance referred to in Section 2, and waives any requirement
that any Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any
right or take any action against the Assignee or any other person
or entity or any collateral.
SECTION 4. Subrogation. (a) The Guarantor will not
-----------
exercise any rights which it may acquire by way of subrogation
under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations and all other amounts payable under
this Guaranty shall have been paid in full and the Commitments
shall have expired or terminated. If any amount shall be paid to
the Guarantor on account of such subrogation rights at any time
prior to the later of (x) the payment in full of the Obligations
and all other amounts payable under this Guaranty and (y) the
expiration or termination of the Commitments, such amount shall
be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for the benefit of, the Lenders and shall
forthwith be paid to the Lenders to be credited and applied upon
the Obligations, whether matured or unmatured, in accordance with
the terms of the Five Year Credit Agreement or to be held by the
Lenders as collateral security for any Obligations thereafter
existing. If (i) the Guarantor shall make payment to the Lenders
of all or any part of the Obligations, (ii) all the Obligations
and all other amounts payable under this Guaranty shall be paid
in full and (iii) the Commitments shall have expired or
terminated, the Lenders will, at the Guarantor's request, execute
and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to the Guarantor of an
interest in the Obligations resulting from such payment by the
Guarantor.
[The preceding Section 4(a) will be used if the
Assignee is incorporated and has its principal office in a
jurisdiction other than the United States of America, or a State,
Territory or possession thereof. Otherwise, the following
Section 4(a) will be used.]
SECTION 4. Waiver of Subrogation. (a) The Guarantor
---------------------
hereby irrevocably waives any claim or other right which it may
now or hereafter acquire against the Assignee that arises from
4
the existence, payment, performance or enforcement of the
Guarantor's obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy
of any Lender against the Assignee or any collateral which any
Lender now has or hereafter acquires, whether or not such claim,
remedy or right arises in equity, or under contract, statute or
common law, including without limitation, the right to take or
receive from the Assignee, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or
security on account of such claim or other right. If any amount
shall be paid to the Guarantor on account of such subrogation
rights at any time prior to the later of (x) the payment in full
of the Obligations and all other amounts payable under this
Guaranty and (y) the expiration or termination of the
Commitments, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for the benefit
of the Lenders and shall forthwith be paid to the Lenders to be
credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the Five Year Credit
Agreement or to be held by the Lenders as collateral security for
any Obligations thereafter existing. The waiver set forth in
this Section 4(a) is knowingly made in contemplation of the
benefits referred to in the Preliminary Statements.
(b) The Guarantor agrees that, to the extent that the
Assignee makes a payment or payments to any Lender or any Lender
receives any proceeds of collateral, which payment or payments or
any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or otherwise required to be
repaid to the Assignee, its estate, trustee, receiver or any
other party, including, without limitation, under any bankruptcy
law, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the Obligation or part
thereof which has been paid, reduced or satisfied by such amount
shall be reinstated and continued in full force and effect as of
the date such initial payment, reduction or satisfaction occurred.
The Guarantor shall defend and indemnify each Lender from and
against any claim or loss under this Section 4(b) (including
reasonable attorneys' fees and expenses) in the defense of any
such action or suit.
SECTION 5. Payments With Respect to Taxes, Etc. Any
-----------------------------------
and all payments made by the Guarantor hereunder shall be subject
to and made in accordance with Section 2.13 of the Five Year
Credit Agreement as if all such payments were being made by the
Borrower.
SECTION 6. Representations and Warranties. The
------------------------------
Guarantor hereby represents and warrants as follows:
5
(a) The Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of
Delaware, and has all corporate power required to carry on
its business as now conducted.
(b) The execution and delivery by the Guarantor of
this Guaranty, and the performance of its obligations
hereunder, are within the Guarantor's corporate power, have
been duly authorized by all necessary corporate and other
action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Guarantor or of any
agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting the Guarantor or result
in the creation or imposition of any Lien on any asset of
the Guarantor or any of its Subsidiaries.
(c) This Guaranty has been duly executed and delivered
by the Guarantor and constitutes a valid and binding
agreement of the Guarantor enforceable in accordance with
its terms.
(d) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Guarantor of this Guaranty.
(e) The Assignee is a Subsidiary of the Guarantor and
is a corporation duly incorporated, validly existing and in
good standing under the laws of .
----------
(f) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied
or waived.
(g) The Guarantor has, independently and without
reliance upon any Lender and based on such documents and
information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guaranty.
SECTION 7. Amendments, Etc. No amendment or waiver of
---------------
any provision of this Guaranty, and no consent to any departure
by the Guarantor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given,
provided, however, that no amendment, waiver or consent shall,
- -------- -------
unless in writing and signed by all the Lenders, (a) limit or
release the liability of the Guarantor hereunder, (b) postpone
any date fixed for payment hereunder, or (c) change the number of
6
Lenders required to take any action hereunder.
SECTION 8. Addresses for Notices. All notices and
---------------------
other communications provided for hereunder shall be given and
effective as provided in Section 7.02 of the Five Year Credit
Agreement.
SECTION 9. No Waiver; Remedies. No failure on the
-------------------
part of any Lender to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10. Right of Set-off. If the Guarantor shall
----------------
fail to make any payment promptly when due hereunder after notice
by any Lender to the Guarantor that the Assignee has failed to
pay any Obligation when due, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender to or for
the credit or the account of the Guarantor against any and all of
the obligations of the Guarantor now or hereafter existing under
this Guaranty, whether or not such Lender shall have made any
demand under this Guaranty and although such obligations may be
contingent and unmatured. Each Lender agrees to notify the
Guarantor and each other Lender promptly after any such set-off
and application made by such Lender, provided that the failure to
--------
give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Lender
may have.
SECTION 11. Continuing Guaranty; Assignments under
--------------------------------------
Credit Agreement. This Guaranty is a continuing guaranty and
- ----------------
shall (i) remain in full force and effect until the later of (x)
the payment in full of the Obligations and all other amounts
payable under this Guaranty and (y) the expiration or termination
of the Commitments, (ii) be binding upon the Guarantor, its
successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under
the Five Year Credit Agreement (including, without limitation,
all or any portion of its Commitment, the Advances owing to it
and any Note held by it) to any other person or entity, and such
other person or entity shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or
7
otherwise, subject, however, to the provisions of Section 7.07 of
the Five Year Credit Agreement.
SECTION 12. Governing Law. This Guaranty shall be
-------------
governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
COLGATE-PALMOLIVE COMPANY
By
-------------------------------
Title:
EXHIBIT 10.P
CONFORMED COPY
U.S. $250,000,000
364 DAY CREDIT AGREEMENT
Dated as of April 8, 1994
Among
COLGATE-PALMOLIVE COMPANY
as Borrower
-- --------
and
THE BANKS NAMED HEREIN
as Banks
-- -----
T A B L E O F C O N T E N T S
- - - - - - - - - - - - - - -
Section Page
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . 1
1.01. Certain Defined Terms . . . . . . . . . . . . . . 1
---------------------
1.02. Computation of Time Periods . . . . . . . . . . . 15
---------------------------
1.03. Accounting Terms . . . . . . . . . . . . . . . . 15
----------------
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES . . . . . . 15
2.01. The A Advances . . . . . . . . . . . . . . . . . 15
--------------
2.02. Making the A Advances . . . . . . . . . . . . . . 15
---------------------
2.03. The B Advances . . . . . . . . . . . . . . . . . 17
--------------
2.04. Facility Fee . . . . . . . . . . . . . . . . . . 21
------------
2.05. Reduction of the Commitments . . . . . . . . . . 21
----------------------------
2.06. Repayment of A Advances . . . . . . . . . . . . . 21
-----------------------
2.07. Interest on A Advances . . . . . . . . . . . . . 21
----------------------
2.08. Additional Interest on Eurodollar Rate Advances . 23
-----------------------------------------------
2.09. Interest Rate Determination . . . . . . . . . . . 23
---------------------------
2.10. Prepayments of A Advances . . . . . . . . . . . . 24
-------------------------
2.11. Increased Costs, Etc . . . . . . . . . . . . . . 25
--------------------
2.12. Payments and Computations . . . . . . . . . . . . 26
-------------------------
2.13. Taxes . . . . . . . . . . . . . . . . . . . . . . 27
-----
2.14. Sharing of Payments, Etc . . . . . . . . . . . . 30
------------------------
ARTICLE III
CONDITIONS OF LENDING . . . . . . . . . 31
3.01. Condition Precedent to Initial Advances . . . . . 31
---------------------------------------
3.02. Conditions Precedent to Each A Borrowing . . . . 32
------------------------------ ---------
3.03. Conditions Precedent to Each B Borrowing . . . . 32
----------------------------------------
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . 34
4.01. Representations and Warranties of the Borrower . 34
----------------------------------------------
ARTICLE V
COVENANTS OF THE BORROWER . . . . . . . . 36
5.01. Affirmative Covenants . . . . . . . . . . . . . . 36
---------------------
5.02. Negative Covenants . . . . . . . . . . . . . . . 39
------------------
ARTICLE VI
EVENTS OF DEFAULT . . . . . . . . . . 43
6.01. Events of Default . . . . . . . . . . . . . . . . 43
-----------------
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . 46
7.01. Amendments, Etc. . . . . . . . . . . . . . . . . 46
---------------
7.02. Notices, Etc. . . . . . . . . . . . . . . . . . . 46
------------
7.03. No Waiver; Remedies . . . . . . . . . . . . . . . 47
-------------------
ii
Section Page
------- ----
7.04. Costs, Expenses, Etc. . . . . . . . . . . . . . . 47
--------------------
7.05. Right of Set-off . . . . . . . . . . . . . . . . 48
----------------
7.06. Binding Effect; Assignment by Borrower . . . . . 48
--------------------------------------
7.07. Assignments and Participations by Lenders . . . . 49
-----------------------------------------
7.08. Change of Control . . . . . . . . . . . . . . . . 52
-----------------
7.09. Mitigation of Adverse Circumstances . . . . . . . 53
-----------------------------------
7.10. Governing Law . . . . . . . . . . . . . . . . . . 53
-------------
7.11. Extensions of Termination Date for Commitments . 54
----------------------------------------------
7.12. Execution in Counterparts . . . . . . . . . . . . 54
-------------------------
7.13 Jurisdiction, Etc . . . . . . . . . . . . . . . . 54
-----------------
7.14. Waiver of Jury Trial . . . . . . . . . . . . . . 55
--------------------
iii
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Opinion of Special New York Counsel to
the Lenders
Exhibit F - Form of Guarantee of Subsidiary
364 DAY CREDIT AGREEMENT
Dated as of April 8, 1994
COLGATE-PALMOLIVE COMPANY, a Delaware corporation (the
"Borrower") and the banks (the "Banks") listed on the signature
-------- -----
pages hereof, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
---------------------
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"A Advance" means an advance by a Lender to the
---------
Borrower as part of an A Borrowing and refers to an Adjusted
CD Rate Advance, a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of A Advance.
----
"A Borrowing" means a borrowing consisting of
-----------
simultaneous A Advances of the same Type and having the same
Interest Period made by each of the Lenders pursuant to
Section 2.01.
"A Note" means a promissory note of the Borrower
------
payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Adjusted CD Rate" means, for any Interest Period for
----------------
each Adjusted CD Rate Advance comprising part of the same
A Borrowing, an interest rate per annum equal to the sum
(rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such sum is not such a multiple) of:
(a) the rate per annum obtained by dividing
(i) the rate of interest equal to the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the
consensus bid rate determined by each of the Reference
Banks for the bid rates per annum, at 9:00 A.M. (New
York City time) (or as soon thereafter as practicable)
one Business Day before the first day of such Interest
Period, of New York certificate of deposit dealers of
recognized standing selected by such Reference Bank for
the purchase at face value of certificates of deposit
of such Reference Bank in an amount substantially equal
to such Reference Bank's Adjusted CD Rate Advance
2
comprising part of such A Borrowing and with a maturity
equal to such Interest Period, by (ii) a percentage
equal to 100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such Interest Period,
plus
(b) the Assessment Rate (as defined below) for
such Interest Period.
The "Adjusted CD Rate Reserve Percentage" for the Interest
-----------------------------------
Period for each Adjusted CD Rate Advance comprising part of
the same A Borrowing means the reserve percentage applicable
one Business Day 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, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with deposits
exceeding one billion dollars with respect to liabilities
consisting of or including (among other liabilities) U.S.
dollar nonpersonal time deposits in the United States with a
maturity equal to such Interest Period. The "Assessment
----------
Rate" for the Interest Period for each Adjusted CD Rate
----
Advance comprising part of the same A Borrowing means the
annual assessment rate (or, if more than one rate, the
average of such rates) estimated by the Reference Banks one
Business Day before the first day of such Interest Period
for determining the then current annual assessment payable
by the Reference Banks to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of the Reference Banks in the United States. The
Adjusted CD Rate for the Interest Period for each Adjusted
CD Rate Advance comprising part of the same A Borrowing
shall be determined by the Borrower on the basis of
applicable rates furnished to and received by the Borrower
from the Reference Banks one Business Day before the first
day of such Interest Period, subject, however, to the
------- -------
provisions of Section 2.09.
"Adjusted CD Rate Advance" means an A Advance which
------------------------
bears interest as provided in Section 2.07(b).
"Advance" means an A Advance or a B Advance.
-------
"Affiliate" means, as to any Person, any other Person
---------
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person.
"Applicable Lending Office" means, with respect to each
-------------------------
Lender, such Lender's Domestic Lending Office in the case of
3
a Base Rate Advance, such Lender's CD Lending Office in the
case of an Adjusted CD Rate Advance, and such Lender's
Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such
Lender notified by such Lender to the Borrower as its
Applicable Lending Office with respect to such B Advance.
"Assignment and Acceptance" means an assignment and
-------------------------
acceptance entered into by a Lender and an assignee, and
accepted by the Borrower, in substantially the form of
Exhibit C hereto.
"B Advance" means an advance by a Lender to the
---------
Borrower as part of a B Borrowing resulting from the auction
bidding procedure described in Section 2.03.
"B Borrowing" means a borrowing consisting of
-----------
simultaneous B Advances from each of the Lenders whose offer
to make one or more B Advances as part of such borrowing has
been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower
------
payable to the order of any Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of
the Borrower to such Lender resulting from a B Advance made
by such Lender.
"B Reduction" has the meaning specified in
-----------
Section 2.01.
"Base Rate" means a fluctuating interest rate per annum
---------
as shall be in effect from time to time which rate per annum
shall at all times be equal to the highest of:
(a) the average of the rates of interest
announced publicly by the Reference Banks in New York,
New York, from time to time, as their base or prime
rate;
(b) 1/4 of one percent per annum above the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average being
determined weekly on each Monday (or, if any such date
is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous
Friday by the Reference Banks on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated,
4
on the basis of the average of the quotations for such
rates received by each Reference Bank from three New
York certificate of deposit dealers of recognized
standing selected by it, in either case adjusted to the
nearest 1/4 of one percent or, if there is no nearest
1/4 of one percent, to the next higher 1/4 of one
percent; and
(c) 1/2 of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means an A Advance which bears
-----------------
interest as provided in Section 2.07(a).
"Borrowing" means an A Borrowing or a B Borrowing.
---------
"Borrowing Subsidiary" has the meaning specified in
--------------------
Section 7.06(b).
"Business Day" means a day of the year on which banks
------------
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"CD Lending Office" means, with respect to any Lender,
-----------------
the office of such Lender specified as its "CD Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a
Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower.
"Change of Control" has the meaning specified in
-----------------
Section 7.08(b).
"Code" means the Internal Revenue Code of 1986, as
----
amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Commitment" has the meaning specified in Section 2.01.
----------
"Consolidated Net Tangible Assets" means, at any time,
--------------------------------
the excess of (a) all assets which appear on the most recent
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with
generally accepted accounting principles, after deducting
therefrom the sum of:
(i) the book amount appearing on such
consolidated balance sheet of good will, trademarks,
trademark rights, trade names, trade name rights,
5
copyrights, patents, patent rights, licenses,
unamortized debt discount and expense and other like
intangibles;
(ii) any write-up in the book value of any asset
resulting from a revaluation thereof subsequent to
December 31, 1993, except write-ups of assets located
outside of the United States of America pursuant to
applicable law or custom;
(iii) all reserves, including reserves for deferred
taxes, depreciation, obsolescence, depletion, insurance
and inventory valuation, but excluding contingency
reserves not allocated for any particular purpose and
not deducted from assets;
(iv) the amount, if any, at which any shares of
capital stock of the Borrower appear on the asset side
of such consolidated balance sheet; and
(v) the amount of the minority interest, if any,
in the shares of stock and surplus of any Consolidated
Subsidiary;
over (b) all current liabilities of the Borrower and its
Consolidated Subsidiaries on a consolidated basis.
"Consolidated Subsidiary" means at any date any
-----------------------
Subsidiary or other entity the accounts of which would, in
accordance with generally accepted accounting principles, be
included with those of the Borrower in its consolidated
financial statements as of such date.
"Debt" means (i) indebtedness for borrowed money,
----
(ii) obligations evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services (other than
accounts payable in the ordinary course of business),
(iv) obligations as lessee under leases which shall have
been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, and
(v) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in
clauses (i) through (iv) above.
"Disclosed Litigation" has the meaning specified in
--------------------
Section 4.01(f).
6
"Documentation Advisors" means Citibank, N.A. and
----------------------
Morgan Guaranty Trust Company of New York.
"Domestic Lending Office" means, with respect to any
-----------------------
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower.
"Domestic Subsidiary" means any Subsidiary a majority
-------------------
of the business of which is conducted within the United
States of America, or a majority of the properties and
assets of which are located within the United States of
America, except (i) any Subsidiary substantially all of the
assets of which consist of the securities of Subsidiaries
which are not Domestic Subsidiaries, (ii) any Subsidiary
which is an FSC as defined in Section 922 of the Code and
(iii) any Subsidiary for any period during which an election
under Section 936 of the Code applies to such Subsidiary.
"Environmental Action" means any administrative,
--------------------
regulatory or judicial action, suit, demand, demand letter,
claim, notice of non-compliance or violation, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to the environment including, without limitation,
(a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory
authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or
-----------------
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to the
environment or Hazardous Materials and applicable to the
Borrower or its Subsidiaries or any property owned or
operated by the Borrower or its Subsidiaries under the laws
of the jurisdiction where the Borrower or such Subsidiary or
property is located.
"ERISA" means the Employee Retirement Income Security
-----
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
---------------
Title IV of ERISA is a member of the Borrower's controlled
7
group, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable
-----------
event, within the meaning of Section 4043 of ERISA, with
respect to any Plan unless the 30-day notice requirement
with respect to such event has been waived by the PBGC;
(b) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e)
of ERISA); (c) the cessation of operations at a facility of
the Borrower or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by the Borrower or any of its ERISA Affiliates
from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (e) the failure by the Borrower
or any of its ERISA Affiliates to make a payment to a Plan
if the conditions for imposition of a lien under
Section 302(f)(1) of ERISA are satisfied; (f) the adoption
of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or
(g) the institution by the PBGC of proceedings to terminate
a Plan, pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA
that could constitute grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
------------------------
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
-------------------------
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower.
"Eurodollar Rate" means, for the Interest Period for
---------------
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
8
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing (or, if such
Borrowing is a B Borrowing, equal to $1,000,000) and for a
period equal to such Interest Period. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by
the Borrower on the basis of applicable rates furnished to
and received by the Borrower from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
------- -------
"Eurodollar Rate Advance" means an A Advance which
-----------------------
bears interest as provided in Section 2.07(c) or a B Advance
which bears interest as provided in Section 2.03(h) for a
Quoted Margin Advance.
"Eurodollar Rate Reserve Percentage" of any Lender for
----------------------------------
the Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
-----------------
Section 6.01.
"Federal Funds Rate" means, for any period, a
------------------
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by each Reference Bank from three Federal funds brokers of
recognized standing selected by it.
"Five Year Credit Agreement" means the Five Year Credit
--------------------------
Agreement dated as of April 8, 1994 among the Borrower and
the lenders named therein, as such agreement may be amended
or otherwise modified from time to time.
9
"Guaranty" has the meaning specified in
--------
Section 7.06(b).
"Hazardous Materials" means petroleum and petroleum
-------------------
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, radon gas and any
other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic," or
words of similar import, under any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or agency interpretation, policy or
guidance and applicable to the Borrower or its Subsidiaries
or any property owned or operated by the Borrower or its
Subsidiaries under the laws of the jurisdiction where the
Borrower or such Subsidiary or property is located.
"Insufficiency" means, with respect to any Plan, the
-------------
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Advance (other than a
---------------
Base Rate Advance) comprising part of the same Borrowing,
the period commencing on the date of such Advance and ending
on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be 30, 60, 90 or 180 days in the case
of an Adjusted CD Rate Advance, and 1, 2, 3 or 6 months in
the case of a Eurodollar Rate Advance, in each case as the
Borrower may select by notice received by each Lender not
later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period,
in the case of Eurodollar Rate Advances, and the second
Business Day prior to such first day in the case of Adjusted
CD Rate Advances; provided, however, that:
-------- -------
(i) the Borrower may not select any Interest
Period which ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Advances comprising part of the same Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a
--------
Eurodollar Rate Advance, that if such extension would
cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day; and
10
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Lenders" means the Banks listed on the signature pages
-------
hereof and each assignee that shall become a party hereto
pursuant to Section 7.07 or Section 2.11(b).
"Lien" means any mortgage, lien, pledge, security
----
interest, encumbrance or charge of any kind, any conditional
sale or other title retention agreement or any lease in the
nature thereof, provided that the term "Lien" shall not
--------
include any lease involved in a Sale and Leaseback
Transaction.
"Major Domestic Manufacturing Property" means any
-------------------------------------
Principal Domestic Manufacturing Property the net
depreciated book value of which on the date as of which the
determination is made exceeds 2.5% of Consolidated Net
Tangible Assets.
"Material Adverse Change" means any material adverse
-----------------------
change in the business, condition or operations of the
Borrower and its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
-----------------------
effect on the business, condition or operations of the
Borrower and its Consolidated Subsidiaries taken as a whole.
"Moody's" means Moody's Investors Service, Inc. or any
-------
successor to its business of rating long-term debt.
"Multiemployer Plan" means a "multiemployer plan" as
------------------
defined in Section 4001(a)(3) of ERISA to which the Borrower
or any of its ERISA Affiliates is making or accruing an
obligation to make contributions, or has within any of the
preceding three plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
----------------------
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and at least one Person other than the Borrower
and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates
could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
11
"Note" means an A Note or a B Note.
----
"Notice of A Borrowing" has the meaning specified in
---------------------
Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in
---------------------
Section 2.03(b).
"Offer" has the meaning specified in Section 2.03(c).
-----
"Operating Cash Flow" of the Borrower and its
-------------------
Subsidiaries for any period means (A) net income for such
period plus (B) the sum of all non-cash expenses and charges
deducted in arriving at net income for such period,
including but not limited to allowances for depreciation and
amortization and accruals for interest and taxes to the
extent that they exceed payments for interest and taxes
during the period, less (C) (i) all payments of interest and
taxes during the period to the extent that they exceed
accruals for interest and taxes for the period and
(ii) other payments of expenses not deducted in arriving at
net income for the period and (D) less net gains or plus net
losses from the sale or other disposition of fixed assets or
businesses for the period, to the extent they were included
in computing net income for the period, but the Borrower may
exclude from the computation under this clause (D) any gains
from the sale of certain parcels of real estate in New
Jersey pursuant to its present program to develop and sell
them over a period of years; provided that the aggregate
--------
number of parcels in the program shall not exceed 35.
"PBGC" means the Pension Benefit Guaranty Corporation
----
or any successor thereto.
"Person" means an individual, partnership, corporation
------
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
----
Employer Plan.
"Principal Domestic Manufacturing Property" means any
-----------------------------------------
building, structure or facility (including the land on which
it is located and the improvements and fixtures constituting
a part thereof) used primarily for manufacturing or
processing which is owned or leased by the Borrower or any
of its Subsidiaries, is located in the United States of
America and the net depreciated book value of which on the
date as of which the determination is made exceeds 1% of
Consolidated Net Tangible Assets, except any such building,
------
12
structure or facility which the Board of Directors of the
Borrower by resolution declares is not of material
importance to the total business conducted by the Borrower
and its Subsidiaries as an entirety.
"Principal Domestic Subsidiary" means (i) each
-----------------------------
Subsidiary which owns or leases a Principal Domestic
Manufacturing Property, (ii) each Domestic Subsidiary the
consolidated net worth of which exceeds 2.5% of Consolidated
Net Tangible Assets (as set forth in the most recent
financial statements referred to in Section 4.01(e) or
delivered pursuant to Section 5.01(e)(i) or (ii)), and (iii)
each Domestic Subsidiary of each Subsidiary referred to in
the foregoing clause (i) or (ii) except any such Subsidiary
------
the accounts receivable and inventories of which have an
aggregate net book value of less than $5,000,000.
"Quoted Margin", "Quoted Margin Advance", "Quoted Rate"
------------- --------------------- -----------
and "Quoted Rate Advance" shall have the respective meanings
-------------------
specified in Section 2.03(b).
"Reference Banks" means Citibank, N.A., Morgan Guaranty
---------------
Trust Company of New York and Chemical Bank.
"Register" has the meaning specified in
--------
Section 7.07(c).
"Rentals" with respect to any lease and for any period
-------
means the aggregate amounts payable by the lessee pursuant
to the terms of the lease for such period, whether or not
referred to as rent. Whenever it is necessary to determine
the amount of Rentals for any period in the future and to
the extent that such Rentals are not definitely determinable
by the terms of the lease, for the purpose of this
definition such Rentals may be estimated in such reasonable
manner as the Borrower may determine.
"Required Lenders" means at any time Lenders holding at
----------------
least 66-2/3% of the then aggregate unpaid principal amount
of the A Notes held by Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 66-2/3%
of the Commitments (provided that, for purposes hereof,
--------
neither the Borrower, nor any of its Affiliates, if a
Lender, shall be included in (i) the Lenders holding such
amount of the A Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid
principal amount of the A Advances or the total
Commitments).
"Restricted Property" means and includes (i) all
-------------------
Principal Domestic Manufacturing Properties, (ii) all
Securities of all Principal Domestic Subsidiaries, and
13
(iii) all inventories and accounts receivable of the
Borrower and its Principal Domestic Subsidiaries.
"S&P" means Standard & Poor's Corporation or any
---
successor to its business of rating long-term debt.
"Sale and Leaseback Debt" of any Person means, at the
-----------------------
date of determination thereof, the aggregate amount of
Rentals required to be paid by such Person under all Sale
and Leaseback Transactions to which such Person is a party
during the respective remaining terms thereof (after giving
effect to any renewals and extensions at the option of the
lessor) discounted from the respective dates of payment of
such Rentals to such date of determination at the actual
interest factor included in such Rentals or, if such
interest factor cannot be readily determined, at an interest
factor calculated in such manner as the Borrower shall
reasonably determine; provided, however, that if any portion
-------- -------
of the net proceeds of the sale of the property leased
pursuant to a Sale and Leasback Transaction has been or is
being applied as provided in Section 5.02(b)(ii) and/or
Section 5.02(b)(iii), there shall be excluded in determining
Sale and Leaseback Debt that portion of the discounted
Rentals required to be paid under such Sale and Leaseback
Transaction which bears the same ratio to the total
discounted Rentals required to be paid under such Sale and
Leaseback Transaction as the portion of such net proceeds
which has been or is being applied as provided in
Section 5.02(b)(ii) and/or Section 5.02(b)(iii) bears to the
total amount of such net proceeds.
"Sale and Leaseback Transaction" means any arrangement
------------------------------
directly or indirectly providing for the leasing by the
Borrower or any Principal Domestic Subsidiary for a period
in excess of three years of any Principal Domestic
Manufacturing Property which was sold or transferred by the
Borrower or any Principal Domestic Subsidiary more than
120 days after the acquisition thereof or the completion of
construction thereof, except any such arrangement solely
------
between the Borrower and a Principal Domestic Subsidiary or
solely between Principal Domestic Subsidiaries.
"Securities" of any corporation means and includes
----------
(i) all capital stock of all classes of and all other equity
interests in such corporation and all rights, options or
warrants to acquire the same, and (ii) all promissory notes,
debentures, bonds and other evidences of Debt of such
corporation.
"Senior Funded Debt" of any Person means, as of the
------------------
date of determination thereof, all Debt of such Person which
(i) matures by its terms more than one year after the date
14
as of which such determination is made (including any such
Debt which is renewable or extendable, or in effect
renewable or extendable through the operation of a revolving
credit agreement or other similar agreement, at the option
of such Person for a period or periods ending more than one
year after the date as of which such determination is made),
and (ii) is not, by the terms of any instrument or
instruments evidencing or securing such Debt or pursuant to
which such Debt is outstanding, expressly subordinated in
right of payment to any other Debt of such Person.
"Significant Subsidiary" means (x) each Subsidiary
----------------------
which is a Principal Domestic Subsidiary by operation of
clause (i), (ii) or (iii) of the definition of Principal
Domestic Subsidiary, and (y) each other Subsidiary whose
assets as at the end of the fiscal year immediately
preceding the time of determination exceeded 2% of
consolidated assets of the Borrower and its Subsidiaries as
at the end of such fiscal year.
"Single Employer Plan" means a single employer plan, as
--------------------
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any of its ERISA
Affiliates and no Person other than the Borrower and its
ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subsidiary" means any corporation of which more than
----------
50% of the outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether or not at the time
capital stock of any other class or classes of such
corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or
indirectly owned by the Borrower, by the Borrower and one or
more other Subsidiaries, or by one or more other
Subsidiaries.
"Termination Date" means the earlier of (a) subject to
----------------
the provisions of Section 7.11, the 364th day after the date
hereof and (b) the date of termination in whole of the
Commitments pursuant to Section 2.05 or 6.01.
"Withdrawal Liability" shall have the meaning given
--------------------
such term under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
---------------------------
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
15
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
----------------
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally
--------------
agrees, on the terms and conditions hereinafter set forth, to
make A Advances to the Borrower or a Borrowing Subsidiary from
time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set opposite such
Lender's name on the signature pages hereof or, if such Lender
has entered into any Assignment and Acceptance, set forth for
such Lender in the Register, as such amount may be reduced
pursuant to Section 2.05 (such Lender's "Commitment"), provided
---------- --------
that the aggregate amount of the Commitments of the Lenders shall
be deemed used from time to time to the extent of the aggregate
amount of the B Advances then outstanding and such deemed use of
the aggregate amount of the Commitments shall be applied to the
Lenders ratably according to their respective Commitments (such
deemed use of the aggregate amount of the Commitments being a
"B Reduction"). Each A Borrowing shall be in an aggregate amount
-----------
not less than $25,000,000 or an integral multiple of $5,000,000
in excess thereof (unless the aggregate amount of the unused
Commitments is less than $25,000,000, in which case such
Borrowing shall be equal to the aggregate amount of the unused
Commitments) and shall consist of A Advances of the same Type and
having the same Interest Period made on the same day by the
Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may
from time to time borrow, repay pursuant to Section 2.06 or
prepay pursuant to Section 2.10 or 2.11(b) and reborrow under
this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A
---------------------
Borrowing shall be made on notice given by the Borrower or a
Borrowing Subsidiary, as the case may be, and received by each
Lender not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed A Borrowing
in the case of Eurodollar Rate Advances, on the second Business
Day prior to such date in the case of Adjusted CD Rate Advances,
or the same Business Day in the case of Base Rate Advances. Each
such notice of an A Borrowing (a "Notice of A Borrowing") shall
---------------------
be given by telecopier, telex or cable, confirmed immediately by
16
hand or by mail, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such A Borrowing,
(ii) Type of A Advances comprising such A Borrowing,
(iii) aggregate amount of such A Borrowing, and (iv) in the case
of an A Borrowing comprised of Adjusted CD Rate Advances or
Eurodollar Rate Advances, the Interest Period for each such
A Advance. Upon fulfillment of the applicable conditions set
forth in Article III, each Lender shall, before 1:00 P.M. (New
York City time) on the date of such A Borrowing, make available
for the account of its Applicable Lending Office to the Borrower
or the applicable Borrowing Subsidiary at an account specified by
the Borrower or the applicable Borrowing Subsidiary by notice to
the Lender, in immediately available funds, such Lender's ratable
portion of such A Borrowing.
(b) Anything in subsection (a) above to the contrary
notwithstanding:
(i) if any Lender shall, at least one Business Day
before the date of any requested Borrowing, notify the
Borrower that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful,
or that any central bank or other governmental authority
asserts that it is unlawful, for such Lender or its
Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances hereunder, the Borrower
shall immediately notify each other Lender and the right of
the Borrower and any Borrowing Subsidiary to select
Eurodollar Rate Advances for the portion of such Borrowing
advanced by the Lender which has provided the notice
described above or the portion of any subsequent Borrowing
advanced by such Lender shall be suspended until such Lender
shall notify the Borrower that the circumstances causing
such suspension no longer exist, and each such Advance shall
be a Base Rate Advance;
(ii) if fewer than two Reference Banks furnish timely
information to the Borrower for determining the Adjusted CD
Rate for any Adjusted CD Rate Advances, or the Eurodollar
Rate for any Eurodollar Rate Advances, comprising any
requested Borrowing, the Borrower shall immediately notify
each Lender and the right of the Borrower and any Borrowing
Subsidiary to select Adjusted CD Rate Advances or Eurodollar
Rate Advances, as the case may be, for such Borrowing or any
subsequent Borrowing shall be suspended until the Borrower
shall notify the Lenders that the circumstances causing such
suspension no longer exist, and each Advance comprising such
Borrowing shall be a Base Rate Advance; and
(iii) if the Required Lenders shall, at least one
Business Day before the date of any requested Borrowing,
17
notify the Borrower that the Eurodollar Rate for Eurodollar
Rate Advances comprising such Borrowing will not adequately
reflect the cost to such Required Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances for
such Borrowing, the Borrower shall immediately notify each
other Lender and the right of the Borrower and any Borrowing
Subsidiary to select Eurodollar Rate Advances for such
Borrowing or any subsequent Borrowing shall be suspended,
and each Advance comprising such Borrowing shall be a Base
Rate Advance. The Lenders will review regularly the
circumstances causing such suspension, and as soon as such
circumstances no longer exist the Required Lenders will
notify the Borrower that such suspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable
and binding on the Borrower or Borrowing Subsidiary, as the case
may be. In the case of any A Borrowing that the related Notice
of A Borrowing specifies is to be comprised of Adjusted CD Rate
Advances or Eurodollar Rate Advances, the Borrower or Borrowing
Subsidiary, as the case may be, shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified
in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without
limitation, any loss (including any loss of margin for the period
after any such failure to borrow), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the A Advance to be made by
such Lender as part of such A Borrowing when such A Advance, as a
result of such failure, is not made on such date.
(d) The failure of any Lender to make the A Advance to
be made by it as part of any A Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its
A Advance on the date of such A Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
A Advance to be made by such other Lender on the date of any
A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender
--------------
severally agrees that the Borrower or a Borrowing Subsidiary, as
the case may be, may request B Borrowings under this Section 2.03
from time to time on any Business Day during the period from the
date hereof until the date occurring (i) 15 days prior to the
Termination Date in the case of a Quoted Rate Advance (as defined
below) or (ii) 30 days prior to the Termination Date in the case
of a Quoted Margin Advance (as defined below), in the manner set
forth below; provided that, following the making of each
--------
B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any
B Reduction).
18
(b) The Borrower or a Borrowing Subsidiary, as the
case may be, may request a B Borrowing under this Section 2.03 by
delivering to each Lender, by telecopier, telex or cable,
confirmed immediately by hand or by mail, a notice of a
B Borrowing (a "Notice of B Borrowing"), in substantially the
---------------------
form of Exhibit B-2 hereto, specifying:
(i) the date and aggregate amount of the proposed
B Borrowing (which shall not be less than $25,000,000 or an
integral multiple of $5,000,000 in excess thereof; provided
--------
that if the aggregate amount of the unused Commitments is
less than $25,000,000, the amount of such proposed Borrowing
shall be equal to the aggregate amount of the unused
Commitments),
(ii) whether each Lender should quote (x) a rate of
interest (a "Quoted Rate") to be the entire rate applicable
-----------
to the proposed B Advance (a "Quoted Rate Advance") or (y) a
-------------------
marginal per annum rate (a "Quoted Margin") to be added to
-------------
the Eurodollar Rate for an Interest Period equal to the term
of the proposed B Borrowing (a "Quoted Margin Advance"),
---------------------
(iii) the maturity date for repayment of each B Advance
to be made as part of such B Borrowing (which maturity date
may not be earlier than the date occurring 15 days after the
date of such B Borrowing in the case of a Quoted Rate
Advance, shall be one, two, three or six months after such
date in the case of a Quoted Margin Advance, and in any case
may not be later than the Termination Date),
(iv) the interest payment date or dates relating
thereto, and
(v) any other terms to be applicable to such
B Borrowing,
not later than 10:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed B Borrowing, in
the case of a Quoted Rate Advance and (B) at least five Business
Days prior to the date of the proposed B Borrowing, in the case
of a Quoted Margin Advance.
(c) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more B Advances
to the Borrower or Borrowing Subsidiary, as the case may be, as
part of such proposed B Borrowing by transmitting to the Borrower
or Borrowing Subsidiary, as the case may be, a written notice (an
"Offer") received by the Borrower or Borrowing Subsidiary, as the
-----
case may be, (A) before 9:00 A.M. (New York City time) on the
date of such proposed B Borrowing, in the case of a Quoted Rate
Advance and (B) before 12:00 noon (New York City time) three
Business Days before the date of such proposed B Borrowing, in
19
the case of a Quoted Margin Advance, specifying (x) the minimum
amount and maximum amount of each B Advance which such Lender
would be willing to make as part of such proposed B Borrowing
(which amounts may, subject to the proviso to Section 2.03(a),
exceed such Lender's Commitment), (y) a Quoted Rate or a Quoted
Margin therefor (as requested by the Notice of B Borrowing) and
(z) such Lender's Applicable Lending Office with respect to such
B Advance. If any Lender shall elect not to make an Offer, such
Lender shall so notify the Borrower or Borrowing Subsidiary, as
the case may be, before the applicable time and date for receipt
by the Borrower or Borrowing Subsidiary, as the case may be, of
the Offers, and such Lender shall not be obligated to, and shall
not, make any B Advance as part of such B Borrowing; provided
--------
that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(d) The Borrower or Borrowing Subsidiary, as the case
may be, shall, in turn, (A) before 10:00 A.M. (New York City
time) on the date of such proposed B Borrowing, in the case of a
Quoted Rate Advance and (B) before 1:00 P.M. (New York City time)
three Business Days before the date of such proposed B Borrowing,
in the case of a Quoted Margin Advance, either
(i) cancel such B Borrowing by giving each Lender
notice to that effect, and such B Borrowing shall not be
made, or
(ii) accept one or more of the Offers made by any
Lender or Lenders, in its sole discretion, by giving notice
to each Lender of the amount of each B Advance to be made by
each Lender as part of such B Borrowing (which amount shall
be equal to or greater than the minimum amount, and equal to
or less than the maximum amount, offered to the Borrower or
Borrowing Subsidiary, as the case may be, by such Lender for
such B Advance in its notice given pursuant to
subsection (c) above), and such notice shall reject any
remaining Offers made by Lenders pursuant to subsection (c)
above, provided that (x) the Borrower or Borrowing
--------
Subsidiary, as the case may be, shall not accept Offers for
an aggregate principal amount of B Advances in excess of the
aggregate principal amount stated in the Notice of
B Borrowing, (y) the Borrower or Borrowing Subsidiary, as
the case may be, shall not accept any Offer unless all
Offers specifying a lower Quoted Rate or Quoted Margin, as
the case may be, are also accepted, and (z) if all Offers
specifying the same Quoted Rate or Quoted Margin, as the
case may be, are not accepted in full, the Borrower or
Borrowing Subsidiary, as the case may be, shall apportion
its acceptances among such Offers in proportion to the
respective principal amounts of such Offers (rounded, where
necessary, to the nearest $1,000,000).
20
(e) If the Borrower accepts one or more of the Offers,
each Lender that is to make a B Advance as part of such
B Borrowing shall, before 12:00 noon (New York City time) on the
date of such B Borrowing, or as soon thereafter as it shall have
received from the Borrower documents which fulfill the applicable
conditions set forth in Article III, make available for the
account of its Applicable Lending Office to the Borrower at an
account specified by the Borrower by notice to such Lender, such
Lender's B Advance, in immediately available funds. Promptly
after each B Borrowing the Borrower will notify each Lender of
the amount of the B Borrowing, the consequent B Reduction and the
dates upon which such B Reduction commenced and will terminate.
(f) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (g) below, and reborrow under this Section 2.03,
provided that a B Borrowing shall not be made within three
- --------
Business Days of the date of any other B Borrowing.
(g) The Borrower shall repay to each Lender that has
made a B Advance, or each other holder of a B Note, on the
maturity date of such B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the
related Notice of B Borrowing and provided in the B Note
evidencing such B Advance), the then unpaid principal amount of
such B Advance. The Borrower shall have no right to prepay any
principal amount of any B Advance.
(h) The Borrower shall pay interest on the unpaid
principal amount of each B Advance from the date of such
B Advance to the date the principal amount of such B Advance is
repaid in full, at (x) the Quoted Rate, in the case of a Quoted
Rate Advance, and (y) at the sum of the Eurodollar Rate for the
Interest Period of such B Advance plus the Quoted Margin, in the
case of a Quoted Margin Advance, in each case as specified for
such B Advance by the Lender making such B Advance in its Offer
with respect thereto, payable on the interest payment date or
dates specified by the Borrower for such B Advance in the related
Notice of B Borrowing and set forth in the B Note evidencing such
B Advance.
(i) The indebtedness of the Borrower resulting from
each B Advance made to the Borrower as part of a B Borrowing
shall be evidenced by a separate B Note of the Borrower payable
to the order of the Lender making such B Advance.
SECTION 2.04. Facility Fee. The Borrower agrees to
------------
pay to each Lender a facility fee on the average daily amount of
such Lender's Commitment, accruing from the date on which this
Agreement becomes fully executed in the case of each Bank and
from the effective date specified in the Assignment and
21
Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date, payable on the last
day of each March, June, September and December during the term
of such Lender's Commitment, commencing June 30, 1994, and on the
Termination Date, computed from time to time at the rate per
annum set forth below opposite the lower of the ratings then
applicable to the Borrower's long-term senior debt as published
by S&P and Moody's:
Facility
Moody's S&P Fee
------- --- --------
A3 or above A- or above .0900%
Baa1 or below, or unrated BBB+ or
below, or unrated .1500%
SECTION 2.05. Reduction of the Commitments. The
----------------------------
Borrower shall have the right, upon at least three Business Days'
notice to each Lender, to terminate in whole all of the
Commitments or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that the
--------
aggregate amount of the Commitments of the Lenders shall not be
reduced to an amount which is less than the aggregate principal
amount of the Advances then outstanding, and provided further
-------- -------
that each partial reduction (other than a reduction pursuant to
Section 2.11) shall be in the aggregate amount of $25,000,000 or
an integral multiple thereof.
SECTION 2.06. Repayment of A Advances. The Borrower
-----------------------
or Borrowing Subsidiary, as the case may be, shall repay the
principal amount of each Base Rate Advance made by each Lender to
the Borrower or Borrowing Subsidiary, as the case may be, on the
Termination Date and the principal amount of each other A Advance
made by each Lender on the last day of the Interest Period for
such A Advance.
SECTION 2.07. Interest on A Advances. The Borrower or
----------------------
Borrowing Subsidiary, as the case may be, shall pay interest on
the unpaid principal amount of each A Advance made by each Lender
to the Borrower or Borrowing Subsidiary, as the case may be, from
the date of such A Advance until such principal amount shall be
paid in full, at the following rates per annum:
(a) Base Rate Advances. If such A Advance is a Base
------------------
Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time, payable quarterly on
the last day of each March, June, September, and December
during such period and on the date such Base Rate Advance
shall be paid in full; provided that any amount of principal
--------
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the
22
date on which such amount is due until such amount is paid
in full, payable on demand, at a rate per annum equal at all
times to 1% per annum above the Base Rate in effect from
time to time.
(b) Adjusted CD Rate Advances. If such A Advance is
-------------------------
an Adjusted CD Rate Advance, a rate per annum equal during
the Interest Period for such A Advance to the sum of the
Adjusted CD Rate for such Interest Period plus the per annum
rate equal from time to time to the rate set forth below
opposite the lower of the ratings then applicable to the
Borrower's long-term senior debt as published by S&P and
Moody's:
Moody's S&P Rate
------- --- ----
A3 or above A- or above .3600%
Baa1 or below, or unrated BBB+ or
below, or unrated .4750%
payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than 90 days, on each
day which occurs during such Interest Period every 90 days
from the first day of such Interest Period; provided that
--------
any amount of principal which is not paid when due (whether
at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate
per annum equal to (x) until the end of the then current
Interest Period, 1% per annum above the rate per annum
required to be paid on such A Advance immediately prior to
the date on which such amount became due, and
(y) thereafter, 1% per annum above the Base Rate in effect
from time to time.
(c) Eurodollar Rate Advances. If such A Advance is a
------------------------
Eurodollar Rate Advance, a rate per annum equal during the
Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the per annum
rate equal from time to time to the rate set forth below
opposite the lower of the ratings then applicable to the
Borrower's long-term senior debt as published by S&P and
Moody's:
Moody's S&P Rate
------- --- ----
A3 or above A- or above .2350%
Baa1 or below, or unrated BBB+ or
below, or unrated .3500%
23
payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on
each day which occurs during such Interest Period every
three months from the first day of such Interest Period;
provided that any amount of principal which is not paid when
--------
due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal to (x) until the end of
the then current Interest Period, 1% per annum above the
rate per annum required to be paid on such A Advance
immediately prior to the date on which such amount became
due, and (y) thereafter, 1% per annum above the Base Rate in
effect from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate
--------------------------------------
Advances. The Borrower or Borrowing Subsidiary, as the case may
- --------
be, shall pay to each Lender, so long as such Lender shall be
required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount
of each Eurodollar Rate Advance of such Lender to the Borrower or
Borrowing Subsidiary, as the case may be, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be
determined by such Lender and the Borrower or Borrowing
Subsidiary, as the case may be, shall be notified of such
additional interest.
SECTION 2.09. Interest Rate Determination.
---------------------------
(a) Each Reference Bank agrees to furnish to the Borrower and
the Borrowing Subsidiaries timely information for the purpose of
determining the Base Rate from time to time in effect and each
Adjusted CD Rate or Eurodollar Rate, as applicable. Subject to
the terms of Section 2.02(b)(ii), if any one or more of the
Reference Banks shall not furnish such timely information to the
Borrower and the Borrowing Subsidiaries for the purpose of
determining any such interest rate, the Borrower or Borrowing
Subsidiary, as the case may be, shall determine such interest
rate on the basis of timely information furnished by the
remaining Reference Banks.
(b) The Borrower or Borrowing Subsidiary, as the case
may be, shall give prompt notice to the Lenders of each
applicable interest rate determined therefrom by the Borrower or
24
such Borrowing Subsidiary for purposes of Section 2.03(h)(y) or
Section 2.07(a), (b) or (c), and the applicable rate furnished by
each Reference Bank for the purpose of determining such
applicable interest rate.
(c) If (but only so long as) fewer than two Reference
Banks shall furnish timely information to the Borrower for
determining the Base Rate in effect from time to time when Base
Rate Advances are outstanding, the Borrower shall immediately
give notice to each Lender, and the Required Lenders shall
immediately designate an additional Reference Bank for the
purpose of determining the Base Rate, but such designation shall
terminate if a replacement Reference Bank is nominated and
approved as provided in the following sentence. Whenever a
Reference Bank either ceases to be a Lender or repeatedly fails
to furnish timely information to the Borrower for determining the
Base Rate, the Adjusted CD Rate or the Eurodollar Rate, the
Borrower will give prompt notice thereof to the Lenders and will
nominate another Lender to replace such Reference Bank, and such
Lender shall, if approved by the Required Lenders, replace such
Reference Bank.
SECTION 2.10. Prepayments of A Advances. The Borrower
-------------------------
or Borrowing Subsidiary, as the case may be, may, upon notice to
each Lender stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, or if the
Borrower or Borrowing Subsidiary, as the case may be, is required
to prepay any A Advance pursuant to Section 2.11(c)
or 5.02(b)(ii) hereof, the Borrower or Borrowing Subsidiary, as
the case may be, shall, prepay the outstanding principal amounts
of the A Advances comprising part of the same A Borrowing in
whole or ratably in part (provided that with regard to
--------
prepayments made pursuant to Section 2.11(c), the Borrower or
such Borrowing Subsidiary shall be required to prepay only the
outstanding principal amounts of the A Advances made by the
Lender or Lenders affected by Section 2.11(c)), together with
accrued interest to the date of such prepayment on the principal
amount prepaid, and the losses, costs and expenses, if any,
payable pursuant to Section 7.04(c). Such notice shall be
received by each Lender not later than 11:00 A.M. (New York City
time), on the third Business Day prior to the date of the
proposed prepayment in the case of Eurodollar Rate Advances, on
the second Business Day prior to such date in the case of
Adjusted CD Rate Advances or on the Business Day prior to such
date in the case of Base Rate Advances. Except for prepayments
made pursuant to Section 2.11(c) or 5.02(b), each partial
prepayment shall be in an aggregate principal amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and any partial prepayment of any Adjusted CD Rate
Advances or Eurodollar Rate Advances shall not leave outstanding
less than $25,000,000 aggregate principal amount of such
A Advances comprising part of any A Borrowing.
25
SECTION 2.11. Increased Costs, Etc. (a) If, due to
--------------------
either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements,
in the case of Adjusted CD Rate Advances, included in the
Adjusted CD Rate Reserve Percentage or, in the case of Eurodollar
Rate Advances, included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the
costs to any Lender of agreeing to make or making, funding or
maintaining Adjusted CD Rate Advances or Eurodollar Rate
Advances, then the Borrower shall from time to time, upon demand
by such Lender, pay to such Lender additional amounts sufficient
to compensate such Lender for such increased costs for a period
beginning not more than 90 days prior to such demand. A
certificate as to the amount of such increased cost submitted to
the Borrower by such Lender, setting forth in reasonable detail
the calculation of the increased costs, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender which decreases such Lender's
return on its capital (after taking into account any changes in
the Eurodollar Rate and Eurodollar Rate Reserve Percentage) and
that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender, the
Borrower shall immediately pay to such Lender, from time to time
as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder, such
compensation to cover a period beginning not more than 90 days
prior to such demand. A certificate as to such amounts submitted
to the Borrower by such Lender, setting forth in reasonable
detail the calculation of the amount required to be paid
hereunder, shall be conclusive and binding for all purposes,
absent manifest error.
(c) Within 30 days after the receipt of (A) notice
from a Lender as described in Section 2.02(b)(i), or (B) a demand
for compensation from a Lender under subsection (a) or (b) above,
the Borrower may, by at least three Business Days' notice to each
Lender, terminate the Commitment (in whole but not in part) of
any Lender which has provided such notice under
Section 2.02(b)(i), or demanded compensation under subsection (a)
26
or (b) above in an amount (expressed as a percentage per annum of
its unused Commitment) which exceeds the compensation demanded by
the other Lenders, provided that (i) the Borrower shall first pay
--------
to such Lender all compensation required to be paid under
subsection (a) or (b) above accrued to the termination date of
such Commitment, (ii) the Borrower shall first prepay all
outstanding A Advances made by such Lender in accordance with the
provisions of Section 2.10 hereof, (iii) the Borrower shall not
terminate the Commitment of any Lender under this subsection
unless it also terminates the Commitment of all other Lenders
providing similar notice under Section 2.02(b)(i) or demanding
compensation at a rate equal to or higher than that demanded by
such Lender under subsection (a) or (b) above, and (iv) the
Borrower shall not take any action under this subsection which
would reduce the aggregate of the Commitments below the aggregate
of the Advances outstanding. Effective with such termination,
the Borrower may substitute for such Lender one or more other
banks or entities which will assume the Commitment and other
obligations hereunder of such terminated Lender or Lenders, and
will become a Lender or Lenders hereunder upon executing an
assumption agreement in form and substance reasonably
satisfactory to the Borrower and the Required Lenders.
SECTION 2.12. Payments and Computations. (a) The
-------------------------
Borrower or Borrowing Subsidiary, as the case may be, shall make
each payment hereunder and under the Notes not later than
11:00 A.M. (New York City time) on the day when due in
U.S. dollars to each Lender at its address referred to in
Section 7.02 in immediately available funds, for the account of
its Applicable Lending Office. Upon its acceptance of an
Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 7.07(d),
from and after the effective date specified in such Assignment
and Acceptance, the Borrower or Borrowing Subsidiary, as the case
may be, shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender's assignee
thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) Each of the Borrower and any Borrowing Subsidiary
hereby authorizes each Lender, if and to the extent payment owed
to such Lender is not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or
all of the Borrower's or such Borrowing Subsidiary's as the case
may be, accounts with such Lender any amount so due.
(c) All computations of interest based on clause (a)
of the definition of Base Rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and all computations
of interest based on the Adjusted CD Rate, the Eurodollar Rate, a
Quoted Rate or the Federal Funds Rate and of commitment fees and
27
facility fees shall be made on the basis of a year of 360 days,
in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which
such interest or fees are payable.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest, commitment fee or facility
fee, as the case may be; provided, however, if such extension
-------- -------
would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) The date and amount of each A Advance made by each
Lender, the date on which it is due, the interest rate applicable
thereto and any prepayments thereof shall be recorded by such
Lender on its books, which shall be presumptive evidence thereof,
whether or not the same is endorsed on the grid annexed to such
Lender's A Note.
SECTION 2.13. Taxes. (a) Subject to subsection (f)
-----
below, any and all payments hereunder or under the A Notes shall
be made, in accordance with Section 2.12, (i) if made by the
Borrower, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings of the United States of America or any state thereof
or political subdivision of any of them or any other jurisdiction
from or through which the Borrower elects to make such payment,
and all liabilities with respect thereto, and (ii) if made by a
Borrowing Subsidiary, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions,
charges or withholdings of any jurisdiction within which it is
organized or does business or is managed or controlled or has its
head or principal office or from or through which such Borrowing
Subsidiary elects to make such payment, and all liabilities with
respect thereto, excluding (w) in the case of each Lender, taxes
---------
imposed on its income, and franchise taxes imposed on it, by any
jurisdiction under the laws of which such Lender is organized or,
as to the United States of America or any state thereof or any
political subdivision of any of them, is doing business or any
political subdivision thereof and by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof, (x) in the case of each Lender, any income tax or
franchise tax imposed on it by a jurisdiction (except the United
States of America or any state thereof or any political
subdivision of any of them) as a result of a connection between
such jurisdiction and such Lender (other than as a result of such
Lender's having entered into this Agreement, performing hereunder
or enforcing this Agreement), (y) any payment of tax which the
Borrower is obliged to make pursuant to Section 159 of the Income
28
and Corporation Taxes Act 1970 of the United Kingdom (or any re-
enactment or replacement thereof) on behalf of a Lender which is
resident for tax purposes in the United Kingdom but is not
recognized as a bank by H.M. Inland Revenue and (z) Other Taxes
as defined in subsection (b) below, (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the
-----
Borrower or any Borrowing Subsidiary shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder
or under any A Note to any Lender, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.13) such Lender receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower or such Borrowing Subsidiary shall
make such deductions and (iii) the Borrower or such Borrowing
Subsidiary shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower or the Borrowing
Subsidiary shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the
A Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the A Notes
(hereinafter referred to as "Other Taxes"). Each Bank represents
-----------
that at the date of this Agreement it is not aware of any Other
Taxes applicable to it. Each Lender agrees to notify the
Borrower or such Borrowing Subsidiary on becoming aware of the
imposition of any such Other Taxes.
(c) The Borrower or the Borrowing Subsidiary will
indemnify each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.13)
paid by such Lender and any liability (including penalties,
interest and expenses not attributable to acts or omissions of
any party other than the Borrower or such Borrowing Subsidiary)
arising therefrom or with respect thereto. This indemnification
shall be paid within 30 days from the date such Lender makes
written demand therefor.
(d) As soon as practicable after the date of any
payment of Taxes (other than Taxes of the United States of
America or any state thereof or political subdivision of any of
them), the Borrower or the Borrowing Subsidiary will furnish to
each Lender, at its address referred to in Section 7.02, the
original or a certified copy of a receipt evidencing payment
thereof (if any such receipt is reasonably available), other
evidence of such payment or, if neither a receipt nor other
evidence is available, a statement by the Borrower or such
29
Borrowing Subsidiary confirming payment thereof. If no such
Taxes are payable in respect of any payment hereunder or under
the A Notes, the Borrower or such Borrowing Subsidiary will at
the request of a Lender furnish to such Lender, an opinion of
counsel for the Borrower or such Borrowing Subsidiary stating
that such payment is exempt from or not subject to Taxes.
(e) Each Lender will, from time to time as requested
by the Borrower or the Borrowing Subsidiary in writing, provide
the Borrower or the Borrowing Subsidiary with any applicable
forms, completed and signed, that may be required by the tax
authority of a jurisdiction in order to certify such Lender's
exemption from or applicable reduction in any applicable Taxes of
such jurisdiction with respect to any and all payments that are
subject to such an exemption or reduction to be made to such
Lender hereunder and under the A Notes, if the Lender is entitled
to such an exemption or reduction.
(f) Notwithstanding anything contained herein to the
contrary, the Borrower or the Borrowing Subsidiary shall not be
required to pay any additional amounts pursuant to this Section
on account of any Taxes of, or imposed by, the United States, to
any Lender which is not entitled on the date on which it signed
this Agreement (or, in the case of an assignee of a Lender, on
the date on which the assignment to it became effective), to
submit Form 1001 or Form 4224 or a certification that it is a
corporation or other entity organized in or under the laws of the
United States or a state thereof, so as to establish a complete
exemption from such Taxes with respect to all payments hereunder
and under the A Notes. If as a result of an erroneous
certification made by a Lender the Borrower or such Borrowing
Subsidiary makes a payment to it without deduction for United
States withholding taxes, but would have made such a deduction
had such certification not been erroneous and the Borrower or
such Borrowing Subsidiary subsequently is required to account,
and does account, to the United States tax authorities for any
amount which should have been deducted, such Lender shall pay to
the Borrower or such Borrowing Subsidiary an amount sufficient to
reimburse the Borrower or such Borrowing Subsidiary for such
amount.
(g) At the request of a Borrower or a Borrowing
Subsidiary, any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
which may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender. The Borrower or such Borrowing Subsidiary shall
reimburse such Lender for the Borrower's or such Borrowing
30
Subsidiary's equitable share of such Lender's reasonable expenses
incurred in connection with such change or in considering such a
change.
(h) Without prejudice to the survival of any other
agreement of the Borrower and its Borrowing Subsidiaries
hereunder, the agreements and obligations of the Borrower and its
Borrowing Subsidiaries contained in this Section 2.13 shall
survive the payment in full of principal and interest hereunder
and under the A Notes, provided, however, that the Borrower or
-------- -------
such Borrowing Subsidiary has received timely notice of the
assertion of any Taxes or Other Taxes in order for it to contest
such Taxes or Other Taxes to the extent permitted by law.
SECTION 2.14. Sharing of Payments, Etc. If any Lender
------------------------
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the A Advances (whether for principal, interest, fees or
otherwise) made by it (other than pursuant to Section 2.08, 2.11
or 2.13) in excess of its ratable share of payments on account of
the A Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in
the A Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them, provided, however, that if all or any portion of such
-------- -------
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
each such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Each of the
Borrower and any Borrowing Subsidiary agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower or such Borrowing
Subsidiary, as the case may be, in the amount of such
participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances.
---------------------------------------
The obligation of each Lender to make its initial Advance is
subject to the condition precedent that such Lender shall have
received, on or before the date of such Advance, or, if earlier,
May 6, 1994, the following, each dated no later than the first
31
date on which all of such documents have been delivered, in form
and substance satisfactory to such Lender and (except for the
Notes) in sufficient copies for each Lender:
(a) The A Note and, if applicable, the B Note payable
to the order of such Lender.
(b) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and
the Notes and each Guaranty, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Agreement and the Notes.
(c) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement and the Notes and the other documents to
be delivered hereunder.
(d) A certificate of a duly authorized officer of the
Borrower certifying that the representations and warranties
contained in Section 4.01 are correct on and as of such date
(before and after giving effect to any Borrowing on such
date and the application of the proceeds therefrom), as
though made on and as of such date, and that no event has
occurred and is continuing (or would result from any such
Borrowing or application of the proceeds thereof) which
constitutes an Event of Default or would constitute an Event
of Default but for the requirement that notice be given or
time elapse or both.
(e) A favorable opinion of the General Counsel or an
Associate General Counsel of the Borrower, substantially in
the form of Exhibit D hereto.
(f) A favorable opinion of Shearman & Sterling,
special counsel for the Documentation Advisors,
substantially in the form of Exhibit E hereto.
(g) Evidence of the termination of the Commitments
under (i) the Credit Agreement dated as of March 30, 1990
among the Borrower and the lenders party thereto, and
(ii) the Credit Agreement dated as of August 27, 1993 among
the Borrower and the lenders party thereto.
SECTION 3.02. Conditions Precedent to Each A
------------------------------
Borrowing. The obligation of each Lender to make an A Advance on
- ---------
the occasion of each A Borrowing (including the initial
A Borrowing) shall be subject to the further conditions precedent
that on the date of such A Borrowing (a) the following statements
shall be true (and each of the giving of the applicable Notice of
A Borrowing and the acceptance by the Borrower or any Borrowing
32
Subsidiary of the proceeds of such A Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such A Borrowing such statements are true):
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the date of such
A Borrowing, before and after giving effect to such
A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would
result from such A Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both;
provided, however, that, on the occasion of an A Borrowing which
- -------- -------
would not increase the aggregate outstanding amount of A Advances
owing to each Lender over the aggregate outstanding amount of
A Advances owing to such Lender immediately prior to making such
A Borrowing, the statements set forth in subsections (i) and (ii)
above shall be modified as follows:
(i) In subsection (i) the phrase "(excluding those
contained in the last sentence of subsection (e) and in
subsection (f) thereof)" shall be inserted immediately after
"Section 4.01"; and
(ii) In subsection (ii) the words "or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both" shall be omitted;
and (b) the Lenders shall have received such other approvals,
opinions or documents as any Lender may reasonably request,
evidencing the accuracy of the representations and warranties and
compliance with other conditions of lending.
SECTION 3.03. Conditions Precedent to Each
----------------------------
B Borrowing. The obligation of each Lender which is to make a
- -----------
B Advance on the occasion of a B Borrowing (including the initial
B Borrowing) to make such B Advance as part of such B Borrowing
is subject to the conditions precedent that (i) such Lender shall
have received the written confirmatory Notice of B Borrowing with
respect thereto, (ii) on or before the date of such B Borrowing,
but prior to such B Borrowing, such Lender shall have received a
B Note payable to the order of such Lender for each of the one or
more B Advances to be made by such Lender as part of such
B Borrowing, each in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such B Advance in accordance
with Section 2.03, and (iii) on the date of such B Borrowing the
following statements shall be true (and each of the giving of the
33
applicable Notice of B Borrowing and the acceptance by the
Borrower or any Borrowing Subsidiary of the proceeds of such
B Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such B Borrowing such statements are
true):
(a) The representations and warranties contained in
Section 4.01 are correct on and as of the date of such
B Borrowing, before and after giving effect to such
B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) No event has occurred and is continuing, or would
result from such B Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or
which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both, and
(c) The information concerning the Borrower that has
been provided in writing to each Lender by the Borrower in
connection herewith as required by the provisions of this
Agreement did not include an untrue statement of a material
fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not
misleading; provided that with regard to any information
--------
delivered to a Lender pursuant to Section 5.01(e)(vii), the
representation and warranty in this Section 3.03(c) shall
apply only to such information that is specifically
identified to the Borrower at the time the request is made
as information (i) that may be delivered to a purchaser of a
B Note, or (ii) that is otherwise requested to be subject to
this Section 3.03(c).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
-------------------------------------
Borrower. The Borrower represents and warrants as follows:
- --------
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the
Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene
(i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the
Borrower.
34
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement
or the Notes.
(d) This Agreement is, and each of the Notes when
executed and delivered hereunder will be, the legal, valid
and binding obligation of the Borrower enforceable against
the Borrower in accordance with their respective terms,
except as the same may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors rights generally or by
general principles of equity.
(e) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at December 31, 1993 and
the related consolidated statements of income, cash flow and
retained earnings of the Borrower and its Consolidated
Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Arthur Andersen & Co., independent public
accountants, copies of which have been furnished to each
Bank, fairly present the consolidated financial condition of
the Borrower and its Consolidated Subsidiaries as at such
date and the consolidated results of the operations of the
Borrower and its Consolidated Subsidiaries for the period
ended on such date, all in accordance with generally
accepted accounting principles consistently applied (except
for mandated changes in accounting disclosed in such
financial statements). Since December 31, 1993 there has
been no Material Adverse Change.
(f) There is no pending or (to the knowledge of the
Borrower) threatened action or proceeding, including,
without limitation, any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably
likely to have a Material Adverse Effect, other than as
disclosed on Schedule 4.01(f) (the "Disclosed Litigation")
--------------------
or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or Guaranty,
and there has been no change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 4.01(f)
which is reasonably likely to have a Material Adverse
Effect.
(g) None of the Borrower or any of its Subsidiaries is
engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will
35
be used in such manner as to cause any Lender to be in
violation of such Regulation U.
(h) The Borrower and each Subsidiary are in compliance
in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority, non-compliance with which would have
a Material Adverse Effect.
(i) In the ordinary course of its business, the
Borrower conducts reviews (which reviews are in varying
stages of implementation) of the effect of Environmental
Laws on the business, operations and properties of the
Borrower and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs.
On the basis of thess reviews, the Borrower has reasonably
concluded that Environmental Laws are unlikely to have a
Material Adverse Effect.
(j) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that is
reasonably likely to result in the imposition of a lien in
excess of $25,000,000 on the assets of the Borrower and/or
any of its ERISA Affiliates in favor of the PBGC or the Plan
or in a requirement that the Borrower or any of its ERISA
Affiliates provide security to the Plan in an amount
exceeding $25,000,000.
(k) The most recently filed Schedule B (Actuarial
Information) annual report (Form 5500 Series) for each Plan
was complete and accurate and fairly presented the funding
status of such Plan as of the date of such Schedule B, and
since the date of such Schedule B, there has been no change
in such funding status which is reasonably likely to have a
Material Adverse Effect.
(l) Neither the Borrower nor any of its ERISA
Affiliates has incurred, or is reasonably expected to incur,
any Withdrawal Liability to any Multiemployer Plan
which is reasonably likely to have a Material Adverse
Effect.
(m) Neither the Borrower nor any of its ERISA
Affiliates has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of
Title IV of ERISA, which in either case would be reasonably
likely to have a Material Adverse Effect, and no such
Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA, which in either case would be reasonably
likely to have a Material Adverse Effect.
36
(n) Except as set forth in the financial statements
described in Section 4.01(e) or delivered pursuant to
Section 5.01(e), the Borrower and its Subsidiaries have no
material liability with respect to "expected postretirement
benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(o) The Borrower and each Subsidiary have filed all
tax returns (Federal, state and local) required to be filed
and paid all taxes shown thereon to be due, including
interest and penalties other than those not yet delinquent
and except for those contested in good faith, or provided
adequate reserves for payment thereof.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
---------------------
Note shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will, unless the Required Lenders shall
otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc.
----------------------------------------
Preserve and maintain, and cause each Significant Subsidiary
to preserve and maintain, its corporate existence except as
permitted under Section 5.02(c); provided, however, that the
-------- -------
Borrower or any Significant Subsidiary shall not be required
to preserve the corporate existence of any Significant
Subsidiary if the Board of Directors of the Borrower shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or
such Significant Subsidiary, as the case may be, and that
the liquidation thereof is not disadvantageous in any
material respect to the Lenders.
(b) Compliance with Laws, Etc. Comply, and cause each
-------------------------
of its Subsidiaries to comply, in all material respects with
all applicable laws, rules, regulations and orders, where
any failure to comply would have a Material Adverse Effect,
such compliance to include, without limitation, paying
before the same become delinquent all material taxes,
assessments and governmental charges imposed upon it or upon
its property except to the extent contested in good faith.
(c) Maintenance of Properties, Etc. Maintain and
------------------------------
preserve, and cause each Significant Subsidiary to maintain
and preserve, all of its properties which are used or useful
in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the
failure to do so would not be reasonably likely to have a
Material Adverse Effect.
37
(d) Maintenance of Insurance. Maintain, and cause
------------------------
each Significant Subsidiary to maintain, insurance with
responsible and reputable insurance companies or
associations (including affiliated companies) for such
amounts, covering such risks and with such deductibles as is
usually carried by companies of comparable size engaged in
similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary
operates, or maintain a sound self-insurance program for
such risks as may be prudently self-insured.
(e) Reporting Requirements. Furnish to each Lender:
----------------------
(i) as soon as available and in any event within
60 days after the end of each of the first three
quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter
and related consolidated statements of income and cash
flow for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, prepared in accordance with generally accepted
accounting principles applicable to interim statements
and certified by the Treasurer or chief financial
officer of the Borrower;
(ii) as soon as available and in any event within
105 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for
the Borrower and its Consolidated Subsidiaries,
containing consolidated financial statements for such
year certified without exception as to scope by Arthur
Andersen & Co. or other independent public accountants
acceptable to the Required Lenders;
(iii) concurrently with the financial statements
delivered pursuant to clause (ii) above, a certificate
of the Treasurer, principal financial officer or the
principal accounting officer of the Borrower, and
concurrently with the financial statements delivered
pursuant to clause (i) above, a certificate of the
Treasurer or controller of the Borrower, stating in
each case that a review of the activities of the
Borrower and its Consolidated Subsidiaries during the
preceding quarter or fiscal year, as the case may be,
has been made under his supervision to determine
whether the Borrower has fulfilled all of its
respective obligations under this Agreement and the
Notes, and also stating that, to the best of his
knowledge, (x) neither an Event of Default nor an event
which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default has
38
occurred, or (y) if any such Event of Default or event
exists, specifying such Event of Default or event, the
nature and status thereof, and the action the Borrower
is taking or proposes to take with respect thereto;
(iv) as soon as possible and in any event within
five days after the occurrence of each Event of Default
and each event which, with the giving of notice or
lapse of time, or both, would constitute an Event of
Default, continuing on the date of such statement, a
statement of the chief financial officer of the
Borrower setting forth details of such Event of Default
or event and the action which the Borrower has taken
and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to its
security holders generally, and copies of all publicly
available reports and registration statements except
registration statements on Form S-8 which the Borrower
or any Subsidiary files with the Securities and
Exchange Commission or any national securities
exchange;
(vi) promptly after the filing or receiving
thereof each notice that the Borrower or any Subsidiary
receives from the PBGC regarding the Insufficiency of
any Plan, and, to any Lender requesting same, copies of
each Form 5500 annual return/report (including
Schedule B thereto) filed with respect to each Plan
under ERISA with the Internal Revenue Service;
(vii) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Lender may
from time to time reasonably request; and
(viii) promptly after any corporation shall become a
Principal Domestic Subsidiary, written notice thereof,
including the name of such corporation, the
jurisdiction of its incorporation and the nature of its
business.
SECTION 5.02. Negative Covenants. So long as any Note
------------------
shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, without the written consent of
the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit
----------
any of its Principal Domestic Subsidiaries to create or
suffer to exist, any Lien on any Restricted Property,
whether now owned or hereafter acquired, without making
39
effective provision (and the Borrower covenants and agrees
that it will make or cause to be made effective provision)
whereby the Notes shall be directly secured by such Lien
equally and ratably with (or prior to) all other
indebtedness secured by such Lien as long as such other
indebtedness shall be so secured; provided, however, that
-------- -------
there shall be excluded from the foregoing restrictions:
(i) Liens securing Debt not exceeding $10,000,000
which are existing on the date hereof on Restricted
Property; and, if any property now owned or leased by
Borrower or by a present Principal Domestic Subsidiary
at any time hereafter becomes a Principal Domestic
Manufacturing Property, any Liens existing on the date
hereof on such property securing the Debt now secured
or evidenced thereby;
(ii) Liens on Restricted Property of a Principal
Domestic Subsidiary as security for Debt of such
Subsidiary to the Borrower or to another Principal
Domestic Subsidiary;
(iii) in the case of any corporation which becomes
a Principal Domestic Subsidiary after the date of this
Agreement, Liens on Restricted Property of such
Principal Domestic Subsidiary which are in existence at
the time it becomes a Principal Domestic Subsidiary and
which were not incurred in contemplation of its
becoming a Principal Domestic Subsidiary;
(iv) any Lien existing prior to the time of
acquisition of any Principal Domestic Manufacturing
Property acquired by the Borrower or a Principal
Domestic Subsidiary after the date of this Agreement
through purchase, merger, consolidation or otherwise;
(v) any Lien on any Principal Domestic
Manufacturing Property (other than a Major Domestic
Manufacturing Property) acquired or constructed by the
Borrower or a Principal Domestic Subsidiary after the
date of this Agreement, which is placed on such
Property at the time of or within 120 days after the
acquisition thereof or prior to, at the time of or
within 120 days after completion of construction
thereof to secure all or a portion of the price of such
acquisition or construction or funds borrowed to pay
all or a portion of the price of such acquisition or
construction;
(vi) extensions, renewals or replacements of any
Lien referred to in clause (i), (iii), (iv) or (v) of
this subsection (a) to the extent that the principal
40
amount of the Debt secured or evidenced thereby is not
increased, provided that the Lien is not extended to
--------
any other Restricted Property unless the aggregate
value of Restricted Property encumbered by such Lien is
not materially greater than the value (as determined at
the time of such extension, renewal or replacement) of
the Restricted Property originally encumbered by the
Lien being extended, renewed or replaced;
(vii) Liens imposed by law, such as carriers',
warehousemen's, mechanics', materialmen's, vendors' and
landlords' liens, and Liens arising out of judgments or
awards against the Borrower or any Principal Domestic
Subsidiary which are (x) immaterial or (y) with respect
to which the Borrower or such Subsidiary at the time
shall currently be prosecuting an appeal or proceedings
for review and with respect to which it shall have
secured a stay of execution pending such appeal or
proceedings for review;
(viii) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for,
rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, and zoning
or other restrictions as to the use of any Principal
Domestic Manufacturing Property, which exceptions,
encumbrances, easements, reservations, rights and
restrictions do not, in the opinion of the Borrower, in
the aggregate materially detract from the value of such
Principal Domestic Manufacturing Property or materially
impair its use in the operation of the business of the
Borrower and its Principal Domestic Subsidiaries; and
(ix) any Lien on Restricted Property not referred
to in clauses (i) through (viii) of this subsection (a)
if, at the time such Lien is created, incurred, assumed
--
or suffered to be created, incurred or assumed, and
after giving effect thereto and to the Debt secured or
evidenced thereby, the sum of (A) the aggregate amount
of all outstanding Debt of the Borrower and its
Principal Domestic Subsidiaries secured or evidenced by
Liens on Restricted Property which are not referred to
in clauses (i) through (viii) of this subsection (a)
and which do not equally and ratably secure the Notes
plus (B) the aggregate amount of all outstanding Sale
and Leaseback Debt of the Borrower and its Principal
Domestic Subsidiaries, shall not exceed 15% of
Consolidated Net Tangible Assets.
If at any time the Borrower or any Principal Domestic
Subsidiary shall create, incur or assume or suffer to be
created, incurred or assumed any Lien on Restricted Property
41
by which the Notes are required to be secured pursuant to
the requirements of this subsection (a), the Borrower will
promptly deliver to each Lender an opinion, in form and
substance reasonably satisfactory to the Required Lenders,
of the General Counsel of the Borrower (so long as the
General Counsel is able to render an opinion as to the
relevant local law) or other counsel reasonably satisfactory
to the Required Lenders, to the effect that the Notes have
been secured in accordance with such requirements.
(b) Sale and Leaseback Transactions. The Borrower
-------------------------------
will not, and will not permit any Principal Domestic
Subsidiary to, enter into any Sale and Leaseback Transaction
unless either:
(i) immediately after giving effect to such Sale
and Leaseback Transaction, the sum of (A) the aggregate
amount of all outstanding Sale and Leaseback Debt of
the Borrower and its Principal Domestic Subsidiaries
and (B) the aggregate amount of all outstanding Debt of
the Borrower and its Principal Domestic Subsidiaries
secured or evidenced by Liens on Restricted Property
which are not referred to in clauses (i) through (viii)
of Section 5.02(a) and which do not equally and ratably
secure the Notes, shall not exceed 15% of Consolidated
Net Tangible Assets; or
(ii) within 90 days after the effective date of
such Sale and Leaseback Transaction, the Borrower shall
apply or cause to be applied an amount equal to the net
proceeds of the sale of the property leased pursuant to
such Sale and Leaseback Transaction to the prepayment
or other retirement (other than any mandatory
prepayment or retirement) of the A Notes in accordance
with the provisions of Section 2.10 hereof and/or
Senior Funded Debt of the Borrower or any of its
Principal Domestic Subsidiaries which is then subject
to optional prepayment or other retirement, and shall
deliver to the holders of the A Notes a certificate
executed by the principal financial officer, treasurer
or the chief executive officer of the Borrower
specifying the Debt so prepaid or retired; or
(iii) within 90 days after the effective date of
such Sale and Leaseback Transaction, the Borrower shall
deliver to the holders of the A Notes a certificate
executed by the principal financial officer, treasurer
or the chief executive officer of the Borrower stating
that an amount equal to the net proceeds of the sale of
the property leased pursuant to such Sale and Leaseback
Transaction has been applied, or is in good faith being
retained for application within a reasonable time after
42
the date of such Sale and Leaseback Transaction (and
the Borrower covenants and agrees that such proceeds
will be so applied), to the payment of the cost of the
purchase, construction or improvement of one or more
Principal Domestic Manufacturing Properties.
(c) Mergers, Etc. Merge or consolidate with or into,
------------
or convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or transfer
assets to, any other Subsidiary of the Borrower, (ii) any
Subsidiary of the Borrower may merge or consolidate with or
into or transfer assets to the Borrower, and (iii) the
Borrower may merge with or transfer assets to, and any
Subsidiary of the Borrower may merge or consolidate with or
into or transfer assets to, any other Person, provided that
--------
(A) in each case, immediately after giving effect to such
proposed transaction, no Event of Default or event which,
with the giving of notice or lapse of time, or both, would
constitute an Event of Default would exist, (B) in the case
of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation and (C) in the case of
any such merger or consolidation of a Borrowing Subsidiary
of the Borrower with or into any other Person, the Borrower
shall remain the guarantor of such Subsidiary's obligations
hereunder.
(d) Debt. Create or suffer to exist, or permit any of
----
its Subsidiaries to create or suffer to exist, any Debt if
(after giving effect to the applications of the proceeds of
any Debt) the ratio of (x) the Operating Cash Flow of the
Borrower and its Subsidiaries on a consolidated basis for
the most recent four consecutive calendar quarters then
ended to (y) the aggregate amount of Debt of the Borrower
and its Subsidiaries on a consolidated basis is less than
0.25 to 1.
(e) Use of Proceeds. Use, or permit any of its
---------------
Subsidiaries to use, any proceeds of any Advance for the
purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), or to extend credit to others
for such purpose, if, following application of the proceeds
of such Advance, more than 25% of the value of the assets
(either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) which are subject to
the restrictions of Section 5.02(a) or (b) or subject to any
restriction contained in any agreement or instrument between
the Borrower and any Lender or any Affiliate of any Lender,
43
relating to Debt and within the scope of Section 6.01(d)
(without giving effect to any limitation in principal amount
contained therein) will be margin stock (as defined in such
Regulation U).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
-----------------
following events ("Events of Default") shall occur and be
-----------------
continuing:
(a) The Borrower or any Borrowing Subsidiary shall
fail to pay when due any principal of any Note or to pay,
within five days after the date when due, the interest on
any Note, any fees or any other amount payable hereunder or
under any Guaranty; or
(b) Any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement or any Guaranty shall
prove to have been incorrect in any material respect when
made; or
(c) The Borrower shall fail to perform or observe
(i) any term, covenant or agreement contained in
Section 5.02, or (ii) any other term, covenant or agreement
contained in this Agreement (other than those referred to in
clauses (a) and (b) of this Section 6.01) on its part to be
performed or observed if the failure to perform or observe
such other term, covenant or agreement referred to in this
clause (ii) shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower
by any Lender; or
(d) The Borrower or any of its Significant
Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt which is outstanding in a principal
amount of at least $50,000,000 in the aggregate (but
excluding Debt evidenced by the Notes) of the Borrower or
such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the
effect of such event or condition is (i) to accelerate the
maturity of such Debt or (ii) if the long-term senior debt
44
of the Borrower is not then rated either at or above BBB by
S&P or at or above Baa2 by Moody's, to permit the
acceleration of the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant
Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed and unstayed for a
period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for
any substantial part of its property) shall occur; or the
Borrower or any of its Significant Subsidiaries shall take
any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $25,000,000 (calculated after deducting from the
sum so payable each amount thereof which will be paid by any
insurer that is not an Affiliate of the Borrower to the
extent such insurer has confirmed in writing its obligation
to pay such amount with respect to such judgment or order)
shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 20 consecutive
days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(g) The Borrower or any of its ERISA Affiliates shall
have incurred or, in the reasonable opinion of the Required
Lenders shall be reasonably likely to incur, liability in
excess of $50,000,000 in the aggregate as a result of one or
more of the following events which shall have occurred:
45
(i) any ERISA Event; (ii) the partial or complete
withdrawal of the Borrower or any of its ERISA Affiliates
from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan.
(h) Any Guaranty or any provision of any Guaranty
after delivery thereof pursuant to Section 7.06(b) shall for
any reason cease to be valid and binding on the Borrower, or
the Borrower shall so state in writing;
then, and in any such event, the Required Lenders may (i) by
notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) by notice to the Borrower, declare
the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the
-------- -------
event of an actual or deemed entry of an order for relief with
respect to the Borrower or any of its Subsidiaries which borrows
hereunder under the Federal Bankruptcy Code, (A) the obligation
of each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. The Lenders giving any
notice hereunder shall give copies thereof to all other Lenders,
but failure to do so shall not impair the effect of such notice.
In the event the Borrower assigns to one or more
Subsidiaries the right to borrow under this Agreement (as
provided in Section 7.06), each reference in this Article VI to
the Borrower shall be a reference to each such Subsidiary as well
as to the Borrower.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment or waiver
---------------
of any provision of this Agreement or the A Notes, nor consent to
any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
-------- -------
waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, 3.02 or 3.03 (if and to the
extent that the Borrowing for which such condition or conditions
46
are waived would result in an increase in the aggregate amount of
A Advances over the aggregate amount of A Advances outstanding
immediately prior to such Borrowing), (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the A Notes or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or
interest on, the A Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Notes, or the number
of Lenders, which shall be required for the Lenders or any of
them to take any action hereunder or (f) amend
Section 7.06(b)(ii) or this Section 7.01. No amendment or waiver
of any provision of a B Note, nor any consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the holder of such
B Note.
SECTION 7.02. Notices, Etc. All notices and other
------------
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at 300 Park Avenue,
New York, New York 10022, Attention: Treasurer; if to any
Borrowing Subsidiary, c/o the Borrower at its above address; if
to any Bank, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; and if to any other Lender, at its
Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; or, as to each
party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company, respectively,
except that notices and communications to a Lender pursuant to
Article II shall not be effective until received by such Lender.
SECTION 7.03. No Waiver; Remedies. No failure on the
-------------------
part of any Lender 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 7.04. Costs, Expenses, Etc. (a) The
--------------------
Borrower agrees to pay on demand all out-of-pocket costs and
expenses in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the
Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-
47
pocket expenses of not more than one counsel for the
Documentation Advisors, with respect thereto and with respect to
advising the Documentation Advisors as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and
expenses of the Lenders), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under
this Section 7.04(a).
(b) The Borrower undertakes and agrees to indemnify
and hold harmless each Lender against any and all claims,
damages, liabilities and expenses (including but not limited to
fees and disbursements of counsel) which may be incurred by or
asserted against such Lender, except where the direct result of
such Lender's own negligence or willful misconduct, in connection
with or arising out of any investigation, litigation, or
proceeding (whether or not any of the Lenders is a party thereto)
relating to or arising out of this Agreement, the Notes or any
actual or proposed use of proceeds of Advances hereunder,
including but not limited to any acquisition or proposed
acquisition by the Borrower or any Subsidiary of all or any
portion of the stock or substantially all of the assets of any
Person.
(c) If any payment of principal of any Adjusted CD
Rate Advance or Eurodollar Rate Advance is made other than on the
last day of the Interest Period for such A Advance, as a result
of a prepayment pursuant to Section 2.10, 2.11 or 5.02(b)(ii) or
acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, the Borrower shall upon
demand by any Lender pay to such Lender any amounts required to
compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such
payment, including, without limitation, any loss (including any
loss of margin for the period after any such prepayment), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or
maintain such A Advance.
(d) Without prejudice to the survival of any other
agreement or obligation of the Borrower hereunder, the agreements
and obligations of the Borrower contained in Sections 2.13
and 7.04 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the Notes.
SECTION 7.05. Right of Set-off. Upon (i) the
----------------
occurrence and during the continuance of any Event of Default and
(ii) the action of the Required Lenders to declare the Notes due
48
and payable pursuant to the provisions of Section 6.01, each
Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and any Note held by such
Lender, whether or not (in the case of obligations other than
principal and interest) such Lender shall have made any demand
under this Agreement or such Note and although such obligations
(other than principal) may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall
--------
not affect the validity of such set-off and application. The
rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender and its
Affiliates may have.
SECTION 7.06. Binding Effect; Assignment by Borrower.
--------------------------------------
(a) This Agreement shall become effective when it shall have
been executed by the Borrower and by each Bank and thereafter
shall be binding upon and inure to the benefit of the Borrower
and each Lender and (subject to Section 7.07) their respective
successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
(b) Notwithstanding subsection (a) above, the Borrower
shall have the right to assign its rights to borrow hereunder (in
whole or in part) to any Subsidiary (a "Borrowing Subsidiary"),
--------------------
provided that (i) such Subsidiary assumes the obligations of the
- --------
Borrower hereunder relating to the rights so assigned by
executing and delivering an assignment and assumption agreement
reasonably satisfactory to the Required Lenders, covering
notices, places of payment and other mechanical details, (ii) the
Borrower guarantees such Subsidiary's obligations thereunder and
under the Notes issued in connection with such assignment and
assumption by executing and delivering a Guaranty substantially
in the form of Exhibit F hereto (a "Guaranty") and (iii) the
--------
Borrower and such Subsidiary furnish the Lenders with such other
documents and legal opinions as the Required Lenders may
reasonably request relating to the existence of such Subsidiary,
its corporate power and authority to request Advances hereunder,
and the authority of the Borrower to execute and deliver such
Guaranty and the legality, validity, binding effect and
enforceability of such assignment, assumption and Guaranty. No
such assignment and assumption shall substitute a Borrowing
Subsidiary for the Borrower or relieve the Borrower named herein
(i.e., Colgate-Palmolive Company) of its obligations with respect
49
to the covenants, representations, warranties, Events of Default
and other terms and conditions of this Agreement, all of which
shall continue to apply to such Borrower and its Subsidiaries.
SECTION 7.07. Assignments and Participations by
---------------------------------
Lenders. (a) Each Lender may assign to one or more banks or
- -------
other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a
portion of its Commitment, the A Advances owing to it and the
A Note or Notes held by it); provided, however, that (i) each
-------- -------
such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement
(other than any B Advances or B Notes), (ii) each assignee shall
be subject to the prior written approval and acceptance of the
Borrower (unless the assignee is an Affiliate of the assignor),
and (iii) the parties to each such assignment shall execute and
deliver to the Borrower, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any A Note
or Notes subject to such assignment, and give notice thereof to
each other Lender. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto).
Notwithstanding anything to the contrary contained in
this Agreement, no Lender may assign all or any part of, or any
interest in, such Lender's A Advances and such Lender's rights
and obligations hereunder and under the A Notes issued to it
hereunder, unless such Lender is simultaneously assigning to the
same assignee a ratable share of such Lender's rights and
obligations under the Five Year Credit Agreement and the
"A Notes" (as defined therein) issued to it thereunder.
(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
50
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any
Borrowing Subsidiary or the performance or observance by the
Borrower or any Borrowing Subsidiary of any of its obligations
under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and/or
Section 5.01(e)(i) and (ii) and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon 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; and (vi) such assignee
agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) The Borrower shall maintain at its address
referred to in Section 7.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the A Advances owing to,
each Lender from time to time (the "Register"). The entries in
--------
the Register shall be conclusive and binding for all purposes,
absent manifest error, with regard to the names, addresses and
Commitments of each Lender, and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available
for inspection and copying by any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, together with
any A Note or Notes subject to such assignment, the Borrower
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
the other Lenders. Within five Business Days after its receipt
of such notice, the Borrower, at its own expense, shall execute
and deliver to the assignee in exchange for the surrendered
A Note or Notes a new A Note to the order of such assignee in an
amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new A Note to the order of the
assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new A Note or Notes shall be in an aggregate
51
principal amount equal to the aggregate principal amount of such
surrendered A Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or
other entities any B Note or Notes held by it. Each Lender may
assign to any Affiliate of such Lender, without the consent of
the Borrower, its interest in this Agreement, the A Advances
owing to it and the A Note held by it, but such assignment shall
not relieve such assigning Lender of its obligations hereunder
including, without limitation, its Commitment.
(f) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) such
Lender shall not grant to any such participant the right to
participate in the Lender's actions on amendments, waivers or
consents permitted under this Agreement, except to the extent
that such actions would change the amount of the Commitment, the
principal amount, payment dates or maturity of any Notes or
Advances, the interest rate, or the method of computing the
interest rate thereon, or any fees payable hereunder.
(g) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 7.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
--------
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such
Lender.
(h) No assignee of a Lender shall be entitled to the
benefits of Sections 2.11 and 2.13 in relation to circumstances
applicable to such assignee immediately following the assignment
to it which at such time (if a payment were then due to the
assignee on its behalf from the Borrower) would give rise to any
greater financial burden on the Borrower under Sections 2.11
52
and 2.13 than those which it would have been under in the absence
of such assignment.
(i) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time, without the consent
of the Borrower, create a security interest in all or any portion
of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A
of the Board of Governors of the Federal Reserve System.
SECTION 7.08. Change of Control.
-----------------
(a) Notwithstanding any other provision of this agreement, the
Required Lenders may, upon and after the occurrence of a Change
in Control, by notice to the Borrower (i) immediately suspend or
terminate the obligations of the Lenders to make Advances
hereunder and/or (ii) require the Borrower to repay all or any
portion of the Advances on the date or dates specified in the
notice which shall not be less than 30 days after the giving of
the notice.
(b) For purposes of this Section "Change in Control"
-----------------
shall mean the happening of any of the following events:
(i) An acquisition, directly or indirectly, by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) of beneficial
------------
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the
then outstanding shares of common stock of the Borrower or
(B) the combined voting power of the then outstanding voting
securities of the Borrower entitled to vote generally in the
election of directors; excluding, however (1) any
acquisition by the Borrower, or (2) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Borrower or any corporation controlled by
the Borrower; or
(ii) A change in composition of the Board of Directors
of the Borrower (the "Board") such that the individuals who,
-----
as of the date hereof, constitute the Board (such Board
shall be hereinafter referred to as the "Incumbent Board")
---------------
cease for any reason to constitute at least a majority of
the Board; provided, however, for purposes of this
-------- -------
Section 7.08, that any individual who becomes a member of
the Board subsequent to the date hereof, whose election, or
nomination for election by the Borrower's stockholders, was
approved by a vote of at least a majority of those
individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such
pursuant to this proviso) shall be considered as though such
53
individual were a member of the Incumbent Board; but,
provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual
or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent
Board.
SECTION 7.09. Mitigation of Adverse Circumstances. If
-----------------------------------
circumstances arise which would or would upon the giving of
notice result in a payment or an increase in the amount of any
payment to be made to a Lender by reason of Section 2.02(c), 2.11
or 2.12, or which would result in a Lender being unable to make
Eurodollar Rate Advances by reason of Section 2.02(b) then,
without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under any of the such Sections, such
Lender shall promptly, upon becoming aware of the same, notify
the Borrower thereof and, in consultation with the Borrower, take
such reasonable steps as may be open to it to mitigate the
effects of such circumstances, including the transfer of its
Applicable Lending Office to another jurisdiction; provided that
--------
such Lender shall be under no obligation to make any such
transfer if in the bona fide opinion of such Lender, such
---------
transfer would or would likely have an adverse effect upon its
business, operations or financial condition.
SECTION 7.10. Governing Law. This Agreement and the
-------------
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 7.11. Extensions of Termination Date for
----------------------------------
Commitments. The Borrower may from time to time request that the
- -----------
Lenders agree in writing to extend the Termination Date then in
effect (the "Specified Date") for the Commitments to the 364th
--------------
day after such Specified Date; such request shall be received by
the Lenders at least 20 days (but not more than 30 days) prior
to the expiration of the Termination Date then in effect. If at
least five days prior to the expiration of the Termination Date
for the Commitments then in effect the Borrower receives written
acceptance of its request from at least five Lenders, the
Termination Date for the Commitments then in effect will be
extended as to those Lenders who accept the Borrower's request
but shall not be extended as to any other Lender. Such extended
Commitments shall become effective on the Specified Date. To the
extent that the Termination Date for the Commitments in effect at
any time is not extended as to any Lender pursuant to this
Section 7.11 or by other prior written agreement executed by
such Lender on or before such Termination Date, the Commitment of
such Lender shall automatically terminate in whole on such
unextended Termination Date without any further notice or other
54
action by the Borrower, such Lender or any other Person. It is
understood that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrower for the extension of
the Termination Date for the Commitments.
SECTION 7.12. Execution in Counterparts. This
-------------------------
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 7.13 Jurisdiction, Etc. (a) Each of the
-----------------
parties hereto (including each Borrowing Subsidiary) hereby
irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this
Agreement, the Notes, or any Guaranty, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State or, to the extent permitted
by law, in such federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this
Agreement, the Notes or any Guaranty in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
such New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 7.14. Waiver of Jury Trial. Each of the
--------------------
Borrower, the Borrowing Subsidiaries and the Lenders hereby
irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement, the
Notes or any Guaranty or the actions of any Lender or
55
Documentation Advisor in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
COLGATE-PALMOLIVE COMPANY
By /s/ Brian J. Heidtke
--------------------
Vice President and Corporate
Treasuer
Banks
Commitment
- ----------
$13,888,888.89 ABN AMRO BANK N.V. NEW YORK
BRANCH
By /s/ Denise A. Gallagher
-----------------------
Vice President
By /s/ Megan M. Lutzinger
----------------------
Corporate Banking
Officer
$13,888,888.89 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Lucy H. Coyle
-----------------
Vice President
$13,888,888.89 THE BANK OF NEW YORK
By /s/ Mary Anne Zagroba
---------------------
Vice President
56
$13,888,888.89 BANQUE NATIONALE DE PARIS
By /s/ Bonnie G. Eisenstat
-----------------------
Vice President
By /s/ Richard L. Sted
-------------------
Senior Vice President
57
$13,888,888.89 BANQUE PARIBAS
By By /s/ Mary T. Finnegan
--------------------
Vice President
By /s/ Stanley P. Berkman
----------------------
Senior Vice President
$13,888,888.89 CHASE MANHATTAN BANK, N.A.
By /s/ Elyse O'Hara
----------------
Managing Director
$13,888,888.89 CHEMICAL BANK
By /s/ Robert A. Kellas
--------------------
Vice President
$13,888,888.89 CITIBANK, N.A.
By /s/ W. Dwight Raiford
---------------------
Vice President
$13,888,888.89 COOPERATIEVE CENTRALE AIFFEISEN-
BOERENLEENBANK B.A.
By By /s/ Dana W. Hemenway
--------------------
Vice President
By /s/ Robert B. Benoit
---------------------
Senior Vice President
$13,888,888.89 CREDIT SUISSE
By /s/ Michael C. Mast
-------------------
Member of Senior Management
By /s/ Chris T. Horgan
-------------------
Associate
58
$13,888,888.89 DEUTSCHE BANK AG
By /s/ Robert A. Maddux
--------------------
Director
By /s/ Frederick W. Laird
---------------------
Director
$13,888,888.89 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ S. Thomas Knoff
-------------------
Assistant Vice President
$13,888,888.89 J. P. MORGAN DELAWARE
By /s/ David J. Morris
-------------------
Vice President
$13,888,888.89 NATIONAL WESTMINSTER BANK PLC
By /s/ Richard Stevens
-------------------
Vice President
$13,888,888.89 NATIONSBANK OF NORTH CAROLINA,
N.A.
By /s/ Moses J. Sawney
-------------------
Vice President
$13,888,888.89 PNC BANK, NATIONAL ASSOCIATION
By /s/ Mark Williams
-----------------
Vice President
59
$13,888,888.89 ROYAL BANK OF CANADA
By /s/ Linda Murrer
----------------
Senior Manager
$13,888,888.89 SOCIETE GENERALE
By /s/ Bruce Drossman
------------------
Vice President
$250,000,000 Total of the Commitments
===========
EXHIBIT A-1
[FORM OF A NOTE]
PROMISSORY NOTE
U.S.$[Lender's Commitment] Dated: , 199
--------------------- --------- -
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES
--------
TO PAY to the order of (the "Lender")
--------------------------- ------
for the account of its Applicable Lending Office (as defined in
the 364 Day Credit Agreement referred to below) the principal
amount of each Base Rate Advance (as defined in the 364 Day
Credit Agreement referred to below) on the Termination Date (as
defined in the 364 Day Credit Agreement referred to below) and
the principal amount of each other A Advance (as defined below)
made by the Lender to the Borrower pursuant to the 364 Day Credit
Agreement on the last day of the Interest Period (as defined in
the 364 Day Credit Agreement) for such Advance.
The Borrower promises to pay interest on the unpaid
principal amount of each A Advance from the date of such A
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in
the 364 Day Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to the Lender at
, in immediately
- -----------------------------------------
available funds. Each A Advance made by the Lender to the
Borrower pursuant to the 364 Day Credit Agreement, the date on
which it is due, the interest rate thereon and all prepayments
made on account of principal thereof shall be recorded by the
Lender on its books, and for each A Advance outstanding at the
time of any transfer hereof the same information shall be
endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the A Notes referred to
in, and is entitled to the benefits of, the 364 Day Credit
Agreement dated as of , 1994 (as amended or otherwise
--------
modified from time to time, the "364 Day Credit Agreement") among
------------------------
the Borrower, the Lender and certain other lenders party thereto.
The 364 Day Credit Agreement, among other things, (i) provides
for the making of advances (the "A Advances") by the Lender to
----------
the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above
2
mentioned, the indebtedness of the Borrower resulting from each
such A Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments
on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States.
COLGATE-PALMOLIVE COMPANY
By
--------------------------
Title:
- ---------------
[Note: Upon request by a Lender, the Borrower will issue
separate A Notes payable to one or more offices of the
Lender, for Base Rate Advances, CD Rate Advances and
Eurodollar Rate Advances. This form will be modified
to refer to the specific type of A Advance and to the
appropriate maturity of such type of A Advance.]
SCHEDULE TO PROMISSORY NOTE DATED , 199
---------- -
OF COLGATE-PALMOLIVE COMPANY
ADVANCES AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------
| Amount | Date | | | |
| of | Principal | | Principal | Unpaid | Notation
Date | Advance | Due | Rate | Prepaid | Principal | Made By
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
| | | | | |
- ------|----------|--------------|------|-----------|-----------|-----------
EXHIBIT A-2
[FORM OF B NOTE]
PROMISSORY NOTE
U.S.$ Dated: , 199
-------------- --------- -
FOR VALUE RECEIVED, the undersigned, COLGATE-PALMOLIVE
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES
--------
TO PAY to the order of (the
-----------------------------
"Lender") for the account of its Applicable Lending Office (as
------
defined in the 364 Day Credit Agreement referred to below), on
, 19 , the principal amount of Dollars
- ---------- -- --------------
(U.S.$ ).
--------------
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
Interest Rate: % per annum (calculated on the basis of a
----
year of 360 days for the actual number of days elapsed).
Interest Payment Date or Dates:
-------------------------
Both principal and interest are payable in lawful money
of the United States of America to the Lender at its office at
, in immediately available
- -----------------------------------
funds.
This Promissory Note is one of the B Notes referred to
in, and is entitled to the benefits of, the 364 Day Credit
Agreement dated as of March , 1994 (as amended or otherwise
--
modified from time to time, the "Five Year Credit Agreement")
--------------------------
among the Borrower, the Lender and certain other lenders party
thereto. The 364 Day Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
2
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States.
COLGATE-PALMOLIVE COMPANY
By
-------------------------
Title:
EXHIBIT B-1
FORM OF
NOTICE OF A BORROWING
Each of the Lenders party
to the 364 Day Credit Agreement
referred to below
- ------------------------
[Date]
- ------------------------
Attention:
-------------------
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to
the 364 Day Credit Agreement dated as of March , 1994 (as
--
amended or otherwise modified through the date hereof, the "Five
----
Year Credit Agreement", the terms defined therein being used
- ---------------------
herein as therein defined) among the undersigned and certain
Lenders party thereto, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the 364 Day Credit Agreement that the
undersigned hereby requests an A Borrowing under the 364 Day
Credit Agreement, and in that connection sets forth below the
information relating to such A Borrowing (the "Proposed A
----------
Borrowing") as required by Section 2.02(a) of the 364 Day Credit
- ---------
Agreement:
(i) The Business Day of the Proposed A Borrowing is
, 199 .
----------- -
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Adjusted CD Rate Advances] [Base Rate
Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing
is $ .
-----------
[(iv) The Interest Period for each A Advance made as
part of the Proposed A Borrowing is [ days] [
---- ----
month[s]].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed A Borrowing:
2
(A) the representations and warranties contained in
Section 4.01 are correct, before and after giving effect to
the Proposed A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
and
(B) no event has occurred and is continuing, or would
result from such Proposed A Borrowing or from the
application of the proceeds therefrom, which constitutes an
Event of Default or would constitute an Event of Default but
for the requirement that notice be given or time elapse or
both.
[As an alternative, the following three representations may be
substituted if the proviso in Section 3.02 is applicable:
(A) The Proposed A Borrowing will not increase the
aggregate outstanding amount of A Advances owing to each
Lender over the aggregate outstanding amount of A Advances
owing to such Lender immediately prior to such A Borrowing;
(B) the representations and warranties contained in
Section 4.01 (excluding those contained in the last sentence
of subsection (e) and in subsection (f) thereof) are
correct, before and after giving effect to the Proposed A
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(C) no event has occurred and is continuing, or would
result from such Proposed A Borrowing or from the
application of the proceeds therefrom, which constitutes an
Event of Default.]
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By
--------------------------
Title:
EXHIBIT B-2
FORM OF
NOTICE OF B BORROWING
Each of the Lenders party
to the 364 Day Credit Agreement
referred to below
- ------------------------
[Date]
- ------------------------
Attention:
-------------------
Ladies and Gentlemen:
The undersigned, Colgate-Palmolive Company, refers to
the 364 Day Credit Agreement dated as of March , 1994 (as
--
amended or otherwise modified through the date hereof, the "Five
----
Year Credit Agreement", the terms defined therein being used
- ---------------------
herein as therein defined) among the undersigned and certain
Lenders party thereto, and hereby gives you notice pursuant to
Section 2.03 of the 364 Day Credit Agreement that the undersigned
hereby requests a B Borrowing under the 364 Day Credit Agreement,
and in that connection sets forth the terms on which such B
Borrowing (the "Proposed B Borrowing") is requested to be made:
--------------------
(A) Date of Proposed B Borrowing
---------------------
(B) Aggregate Amount of
Proposed B Borrowing
---------------------
(C) Interest Rate Basis
---------------------
(D) Maturity Date
---------------------
(E) Interest Payment Date(s)
---------------------
(F)
-------------------- ---------------------
(G)
-------------------- ---------------------
(H)
-------------------- ---------------------
2
The undersigned hereby certifies that the following
statements are true on the date hereof and will be true on the
date of the Proposed B Borrowing:
(a) the representations and warranties contained in
Section 4.01 are correct, before and after giving effect to
the Proposed B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed B Borrowing or from the application
of the proceeds therefrom, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both;
(c) The information concerning the undersigned that
has been provided in writing to each Lender by the
undersigned in connection with the 364 Day Credit Agreement
as required by the terms of the 364 Day Credit Agreement did
not include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the
statements contained therein, in the light of the
circumstances under which they were made, not misleading;
provided that with regard to any information delivered to a
--------
Lender pursuant to Section 5.01(e)(vii) of the 364 Day
Credit Agreement, the representation and warranty in this
paragraph (c) shall apply only to such information that is
specifically identified to the undersigned at the time the
request is made as information (i) that may be delivered to
a purchaser of a B Note, or (ii) that is otherwise requested
to be subject to this paragraph (c).
(d) the aggregate amount of the Proposed B Borrowing
and all other Borrowings to be made on the same day under
the 364 Day Credit Agreement is within the aggregate amount
of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B
Borrowing is to be made available to it in accordance with
Section 2.03(e) of the 364 Day Credit Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
----------------------
Title:
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated , 199
--------- -
Reference is made to the 364 Day Credit Agreement dated
as of March , 1994 (as amended or otherwise modified through
--
the date hereof, the "Five Year Credit Agreement") among COLGATE-
--------------------------
PALMOLIVE COMPANY, a Delaware corporation (the "Borrower"), and
--------
the Lenders (as defined in the 364 Day Credit Agreement). Terms
defined in the 364 Day Credit Agreement are used herein with the
same meaning.
(the "Assignor") and (the
--------------- -------- -------------
"Assignee") agree as follows:
--------
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights
and obligations under the 364 Day Credit Agreement as of the date
hereof (other than in respect of B Advances and B Notes) which
represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the 364 Day Credit
Agreement (other than in respect of B Advances and B Notes),
including, but not limited to, such interest in the Assignor's
Commitment, the A Advances owing to the Assignor, and the A
Note[s] held by the Assignor. After giving effect to such sale
and assignment, the Assignee's Commitment and the amount of the A
Advances owing to the Assignee will be as set forth in Section 2
of Schedule 1.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by
it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
364 Day Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the 364 Day
Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower
of any of its obligations under the 364 Day Credit Agreement or
any other instrument or document furnished pursuant thereto; and
(iv) attaches the A Note[s] referred to in paragraph 1 above
and requests that the Borrower exchange such A Note[s] for a new
A Note payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto or new A
Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto and to the
order of the Assignor in an amount equal to the Commitment retained
by the Assignor under the 364 Day Credit Agreement, respectively, as
specified on Schedule 1 hereto.
2
3. The Assignee (i) confirms that it has received a
copy of the 364 Day Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 or delivered
pursuant to Section 5.01(e) thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without
reliance upon the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the 364 Day Credit Agreement; (iii) agrees
that it will perform in accordance with their terms all of the
obligations which by the terms of the 364 Day Credit Agreement
are required to be performed by it as a Lender; [and] (iv)
specifies as its CD Lending Office, Domestic Lending Office (and
address for notices) and Eurodollar Lending Office the offices
set forth beneath its name on the signature pages hereof [and (v)
attaches the forms prescribed by the Internal Revenue Service of
the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee
under the 364 Day Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax
treaty].*
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Borrower for acceptance and recording by the Borrower.
The effective date of this Assignment and Acceptance shall be the
date of acceptance thereof by the Borrower, unless otherwise
specified on Schedule 1 hereto (the "Effective Date").
--------------
- -------------------
* If the Assignee is organized under the laws of a
jurisdiction outside the United States.
3
5. Upon such acceptance and recording by the Borrower,
as of the Effective Date, (i) the Assignee shall be a party to
the 364 Day Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the 364 Day Credit
Agreement.
6. Upon such acceptance and recording by the Borrower,
from and after the Effective Date, the Borrower shall make all
payments under the 364 Day Credit Agreement and the A Notes in
respect of the interest assigned hereby (including, but not
limited to, all payments of principal, interest and commitment
and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the 364 Day Credit Agreement and the A Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above
written, such execution being made on Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated , 19
----- --
Section 1.
- ---------
Percentage Interest: %
-------
Section 2.
- ---------
Assignee's Commitment: $
-------
Assignor's Retained Commitment: $
-------
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignee: $
-------
Aggregate Outstanding Principal
Amount of A Advances owing to the Assignor: $
-------
An A Note payable to the order of the Assignee
Dated: , 19
--------- --
Principal amount:
------
An A Note payable to the order of the Assignor
Dated: , 19
--------- --
Principal amount:
------
Section 3.
- ---------
Effective Date*: ,19
--------- ---
[NAME OF ASSIGNOR]
By:
---------------------------------
Title:
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
CD Lending Office:
[Address]
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
* This date should be no earlier than the date of acceptance
by the Borrower.
-2-
Accepted this day
----
of , 19
------------ --
COLGATE-PALMOLIVE COMPANY
By:
----------------------
Title:
EXHIBIT D
FORM OF OPINION OF COMPANY COUNSEL
-------------------, 1994
To each of the Lenders party
to the Credit Agreement
referred to below
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary for
Colgate-Palmolive Company (hereinafter referred to as the "Borrower"), I
am familiar with the $250,000,000 364 - Day Credit Agreement, dated as
of April 8, 1994 among the Borrower and the Lenders thereto (the "Credit
Agreement"). This opinion is being furnished to you pursuant to Section
3.01(e) of the Credit Agreement. Terms used in this opinion which are
defined in the Credit Agreement are used herein as so defined.
I or attorneys under my supervision in the Borrower's Legal
Department have examined such records, certificates, and other documents
and such questions of law as I have considered necessary or appropriate
for purposes of this opinion. In addition, I or attorneys under my
supervision in the Borrower's Legal Department have examined such
records, certificates, and other documents, relied on upon certificates
of the officers of the Borrower and performed such investigations as I
have considered necessary or appropriate for purposes of this opinion in
respect of matters of fact. I believe that both you and I are justified
in relying upon such certificates. Based upon, and subject to, to
foregoing, it is my opinion that:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Notes and the Guaranties are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by-laws or
(ii) law or (to my knowledge after due inquiry) any contractual
restriction binding on or affecting the Borrower. The Credit Agreement
and the A Notes have been duly executed and delivered on behalf of the
Borrower.
To each of the Lenders party
to the Credit Agreement
referred to below
-------------------, 1994
Page 2
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower
of the Credit Agreement, the Notes and the Guaranties.
4. The Credit Agreement is and the A Notes will be, and each of
the Guaranties and B Notes when executed and delivered will be, upon the
receipt of due consideration therefore, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
5. To my actual knowledge (after due inquiry), there is no pending
or threatened action or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator which
may have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of the Credit Agreement, any Notes
and any Guaranties.
I am licensed to practice law in the State of New York and do
not purport to be an expert on, or to express any opinion (other than to
the extent necessary to render the opinions set forth in paragraph (1)
above, which opinion is based on certificates of public officials)
concerning any law other than the law of the State of New York, the
General Corporation Law of the State of Delaware and the Federal law of
the United States. The opinions expressed herein are solely for your
benefit and may not be relied upon in any manner or for any purpose by
any other persons.
The opinion set forth in paragraph (4) above is subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, and to
the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding equity or at law).
Very truly yours,
EXHIBIT E
OPINION OF SPECIAL NEW YORK COUNSEL
TO THE DOCUMENTATION ADVISORS
_______, 1994
To the Lenders party to the
Credit Agreement referred
to below
Colgate-Palmolive Company
-------------------------
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank,
N.A. and Morgan Guaranty Trust Company of New York as
Documentation Advisors in connection with the preparation,
execution and delivery of the Five Year Credit Agreement dated as
of April 8, 1994 (the "Credit Agreement") among Colgate-Palmolive
Company (the "Borrower") and each of you. Terms defined in the
Credit Agreement are used herein as therein defined.
In that connection, we have examined the following
documents:
(1) A counterpart of the Credit Agreement, executed by
each of the parties thereto.
(2) The documents furnished by the Borrower pursuant
to Section 3.01 of the Credit Agreement, including the
opinion of , General Counsel of the
-------------------
Borrower.
In our examination of the documents referred to above,
we have assumed the authenticity of all such documents submitted
to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents, and the
conformity to the originals of all such documents submitted to us
as copies. We have also assumed that each of you has duly
executed and delivered, with all necessary power and authority
(corporate and otherwise), the Credit Agreement.
To the extent that our opinions expressed below involve
conclusions as to the matters set forth in paragraphs 1, 2 and 3
of the above-mentioned opinion of counsel for the
Borrower, we have assumed without independent investigation the
correctness of the matters set forth in such paragraphs, our
opinion being subject to the assumptions, qualifications and
limitations set forth in such opinion with respect thereto.
2
Based upon the foregoing and upon such other
investigation as we have deemed necessary, we are of the
following opinion:
1. The Credit Agreement and each Note delivered on
the date hereof are the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
2. The above-mentioned opinion of counsel for the
Borrower, and the other documents referred to in item (2)
above, are substantially responsive to the requirements of
the Credit Agreement.
Our opinions above are subject to the following qualifications:
(a) Our opinion in paragraph 1 above is subject to the
effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(b) Our opinion in paragraph 1 above is also subject
to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(c) Our opinions expressed above are limited to the
law of the State of New York and the Federal law of the
United States, and we do not express any opinion herein
concerning any other law. Without limiting the generality
of the foregoing, we express no opinion as to the effect of
the law of any jurisdiction other than the State of New York
wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought which limits
the rates of interest legally chargeable or collectible.
Very truly yours,
SHEARMAN & STERLING
LCJ:KBM
EXHIBIT F
FORM OF GUARANTY
GUARANTY, dated , 19 , made by COLGATE-
---------- --
PALMOLIVE COMPANY, a corporation organized and existing under the
laws of Delaware (the "Guarantor"), in favor of each of the
---------
Lenders (the "Lenders") parties to the 364 Day Credit Agreement
-------
(as defined below).
PRELIMINARY STATEMENTS.
(1) The Lenders and the Guarantor have entered into a
364 Day Credit Agreement dated as of March , 1994 (said
--
Agreement, as it may heretofore have been or hereafter be amended
or otherwise modified from time to time, being the "364 Day
-------
Credit Agreement", the terms defined therein and not otherwise
- ----------------
defined herein being used herein as therein defined). Pursuant
to Section 7.06(b) of the 364 Day Credit Agreement and an
Assignment and Assumption Agreement dated , 19 the
---------- --
Guarantor has assigned to , a
----------------------------
corporation organized and existing under the laws of
-------------
(the "Assignee"), certain rights under the 364 Day Credit
- ----- --------
Agreement, so that the Assignee may borrow and receive Advances
under the 364 Day Credit Agreement. The Assignee is a Subsidiary
of the Guarantor and engages in business transactions with the
Guarantor, and the Guarantor represents that it will derive
substantial direct and indirect benefit from all Advances to the
Assignee.
(2) It is a condition precedent to the making of such
assignment to the Assignee that the Guarantor shall have executed
and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in
order to induce the Lenders to accept such assignment and to make
Advances to the Assignee under the 364 Day Credit Agreement, the
Guarantor hereby agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby
--------
unconditionally guarantees the punctual payment when due, whether
at stated maturity, by acceleration or otherwise, of all
obligations of the Assignee now or hereafter existing under the
364 Day Credit Agreement and under the Notes evidencing Advances
to the Assignee (the "Notes"), whether for principal, interest,
-----
fees, expenses or otherwise (such obligations being the
"Obligations"), and agrees to pay any and all expenses (including
-----------
counsel fees and expenses) incurred by the Lenders in enforcing
any rights under this Guaranty. Without limiting the generality
of the foregoing, the Guarantor's liability shall extend to all
amounts which constitute part of the Obligations and would be
owed by the Assignee to the Lenders under the 364 Day Credit
2
Agreement and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving
the Assignee.
SECTION 2. Guaranty Absolute. The Guarantor
-----------------
guarantees that the Obligations will be paid strictly in
accordance with the terms of the 364 Day Credit Agreement and the
Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Lenders with respect thereto. The
obligations of the Guarantor under this Guaranty are independent
of the Obligations, and a separate action or actions may be
brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against
the Assignee or whether the Assignee is joined in any such action
or actions. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the 364
Day Credit Agreement, the Notes or any other agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any
consent to departure from the 364 Day Credit Agreement or
the Notes, including, without limitation, any increase in
the Obligations resulting from the extension of additional
credit to the Assignee or any of its subsidiaries or
otherwise;
(iii) any taking, exchange, release or non-perfection
of any collateral, or any taking, release or amendment or
waiver of or consent to departure from any other guaranty,
for all or any of the Obligations;
(iv) any manner of application of collateral, or
proceeds thereof, to all or any of the Obligations, or any
manner of sale or other disposition of any collateral for
all or any of the Obligations or any other assets of the
Assignee or any of its subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of the Assignee or any of
its subsidiaries or its status as a Subsidiary of the
Guarantor; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Assignee or a guarantor.
This Guaranty shall continue to be effective or be reinstated, as
3
the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by any
Lender upon the insolvency, bankruptcy or reorganization of the
Assignee or otherwise, all as though such payment had not been
made.
SECTION 3. Waiver. The Guarantor hereby waives
------
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations, this Guaranty or any
circumstance referred to in Section 2, and waives any requirement
that any Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any
right or take any action against the Assignee or any other person
or entity or any collateral.
SECTION 4. Subrogation. (a) The Guarantor will not
-----------
exercise any rights which it may acquire by way of subrogation
under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations and all other amounts payable under
this Guaranty shall have been paid in full and the Commitments
shall have expired or terminated. If any amount shall be paid to
the Guarantor on account of such subrogation rights at any time
prior to the later of (x) the payment in full of the Obligations
and all other amounts payable under this Guaranty and (y) the
expiration or termination of the Commitments, such amount shall
be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for the benefit of, the Lenders and shall
forthwith be paid to the Lenders to be credited and applied upon
the Obligations, whether matured or unmatured, in accordance with
the terms of the 364 Day Credit Agreement or to be held by the
Lenders as collateral security for any Obligations thereafter
existing. If (i) the Guarantor shall make payment to the Lenders
of all or any part of the Obligations, (ii) all the Obligations
and all other amounts payable under this Guaranty shall be paid
in full and (iii) the Commitments shall have expired or
terminated, the Lenders will, at the Guarantor's request, execute
and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to the Guarantor of an
interest in the Obligations resulting from such payment by the
Guarantor.
[The preceding Section 4(a) will be used if the
Assignee is incorporated and has its principal office in a
jurisdiction other than the United States of America, or a State,
Territory or possession thereof. Otherwise, the following
Section 4(a) will be used.]
SECTION 4. Waiver of Subrogation. (a) The Guarantor
---------------------
hereby irrevocably waives any claim or other right which it may
now or hereafter acquire against the Assignee that arises from
the existence, payment, performance or enforcement of the
4
Guarantor's obligations under this Guaranty or any other Loan
Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy
of any Lender against the Assignee or any collateral which any
Lender now has or hereafter acquires, whether or not such claim,
remedy or right arises in equity, or under contract, statute or
common law, including without limitation, the right to take or
receive from the Assignee, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or
security on account of such claim or other right. If any amount
shall be paid to the Guarantor on account of such subrogation
rights at any time prior to the later of (x) the payment in full
of the Obligations and all other amounts payable under this
Guaranty and (y) the expiration or termination of the
Commitments, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for the benefit
of the Lenders and shall forthwith be paid to the Lenders to be
credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the 364 Day Credit
Agreement or to be held by the Lenders as collateral security for
any Obligations thereafter existing. The waiver set forth in
this Section 4(a) is knowingly made in contemplation of the
benefits referred to in the Preliminary Statements.
(b) The Guarantor agrees that, to the extent that the
Assignee makes a payment or payments to any Lender or any Lender
receives any proceeds of collateral, which payment or payments or
any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or otherwise required to be
repaid to the Assignee, its estate, trustee, receiver or any
other party, including, without limitation, under any bankruptcy
law, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the Obligation or part
thereof which has been paid, reduced or satisfied by such amount
shall be reinstated and continued in full force and effect as of
the date such initial payment, reduction or satisfaction occurred.
The Guarantor shall defend and indemnify each Lender from and
against any claim or loss under this Section 4(b) (including
reasonable attorneys' fees and expenses) in the defense of any
such action or suit.
SECTION 5. Payments With Respect to Taxes, Etc. Any
-----------------------------------
and all payments made by the Guarantor hereunder shall be subject
to and made in accordance with Section 2.13 of the 364 Day Credit
Agreement as if all such payments were being made by the
Borrower.
SECTION 6. Representations and Warranties. The
------------------------------
Guarantor hereby represents and warrants as follows:
5
(a) The Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of
Delaware, and has all corporate power required to carry on
its business as now conducted.
(b) The execution and delivery by the Guarantor of
this Guaranty, and the performance of its obligations
hereunder, are within the Guarantor's corporate power, have
been duly authorized by all necessary corporate and other
action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Guarantor or of any
agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting the Guarantor or result
in the creation or imposition of any Lien on any asset of
the Guarantor or any of its Subsidiaries.
(c) This Guaranty has been duly executed and delivered
by the Guarantor and constitutes a valid and binding
agreement of the Guarantor enforceable in accordance with
its terms.
(d) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Guarantor of this Guaranty.
(e) The Assignee is a Subsidiary of the Guarantor and
is a corporation duly incorporated, validly existing and in
good standing under the laws of .
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(f) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied
or waived.
(g) The Guarantor has, independently and without
reliance upon any Lender and based on such documents and
information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guaranty.
SECTION 7. Amendments, Etc. No amendment or waiver of
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any provision of this Guaranty, and no consent to any departure
by the Guarantor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given,
provided, however, that no amendment, waiver or consent shall,
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unless in writing and signed by all the Lenders, (a) limit or
release the liability of the Guarantor hereunder, (b) postpone
any date fixed for payment hereunder, or (c) change the number of
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Lenders required to take any action hereunder.
SECTION 8. Addresses for Notices. All notices and
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other communications provided for hereunder shall be given and
effective as provided in Section 7.02 of the 364 Day Credit
Agreement.
SECTION 9. No Waiver; Remedies. No failure on the
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part of any Lender to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10. Right of Set-off. If the Guarantor shall
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fail to make any payment promptly when due hereunder after notice
by any Lender to the Guarantor that the Assignee has failed to
pay any Obligation when due, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender to or for
the credit or the account of the Guarantor against any and all of
the obligations of the Guarantor now or hereafter existing under
this Guaranty, whether or not such Lender shall have made any
demand under this Guaranty and although such obligations may be
contingent and unmatured. Each Lender agrees to notify the
Guarantor and each other Lender promptly after any such set-off
and application made by such Lender, provided that the failure to
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give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
SECTION 11. Continuing Guaranty; Assignments under
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Credit Agreement. This Guaranty is a continuing guaranty and
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shall (i) remain in full force and effect until the later of (x)
the payment in full of the Obligations and all other amounts
payable under this Guaranty and (y) the expiration or termination
of the Commitments, (ii) be binding upon the Guarantor, its
successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under
the 364 Day Credit Agreement (including, without limitation, all
or any portion of its Commitment, the Advances owing to it and
any Note held by it) to any other person or entity, and such
other person or entity shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or
otherwise, subject, however, to the provisions of Section 7.07 of
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the 364 Day Credit Agreement.
SECTION 12. Governing Law. This Guaranty shall be
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governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
COLGATE-PALMOLIVE COMPANY
By
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Title:
