MULTICURRENCY CREDIT AGREEMENT
Dated as of September 29, 1993
As Amended and Restated as of January 1, 1995
and
As Further Amended and Restated as of September 30, 1996
ECOLAB INC., a Delaware corporation (the "COMPANY"), the banks (the
"BANKS") listed on the signature pages hereof, CITIBANK, N.A. ("CITIBANK") as
administrative agent (the "AGENT") for the Banks hereunder, CITIBANK
INTERNATIONAL PLC, as agent for the banks in connection with certain of the
Eurocurrency Advances (the "EURO-AGENT") and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as co-agent (the "CO-AGENT"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A ADVANCE" means an advance by a Bank to a Borrower as part of
an A Borrowing and refers to a Base Rate Advance, an Adjusted CD Rate
Advance or a Eurocurrency 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 made to a single Borrower by each of the
Banks pursuant to SECTION 2.01.
"A NOTE" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of EXHIBIT A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Bank
resulting from the A Advances made by such Bank to such Borrower.
"ADDED BANK" means any Bank which becomes a Bank hereunder, or whose
Commitment is increased (to the extent of such increase), pursuant to an
Assumption and Acceptance as provided in SECTION 2.05(b).
"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 of:
(a) the rate per annum obtained by dividing (i) the rate of
interest determined by the Agent to be the average (rounded upward to
the nearest
whole multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the consensus bid rates determined by each of the
Reference Banks for the bid rates per annum, at 9:00 A.M. (New York
City time) (or as soon thereafter as practicable) on the first day of
such Interest Period, of New York certificate of deposit dealers of
recognized standing selected by such Reference Bank for the purchase
at face value of certificates of deposit of such Reference Bank in an
amount substantially equal to such Reference Bank's Adjusted CD Rate
Advance comprising part of such 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 Borrowing means the reserve
percentage applicable on the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York City
with deposits exceeding one billion Dollars with respect to liabilities
consisting of or including (among other liabilities) 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 Borrowing means the annual assessment rate estimated
by the Agent on the first day of such Interest Period for determining the then
current annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of Citibank in the
United States. The Adjusted CD Rate for each Interest Period for each Adjusted
CD Rate Advance comprising part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent
from the Reference Banks on the first day of such Interest Period, SUBJECT,
HOWEVER, to the provisions of SECTION 2.09.
"ADJUSTED CD RATE ADVANCE" means an Advance denominated in
Dollars which bears interest as provided in SECTION 2.07(b).
"ADVANCE" means an A Advance or a B Advance.
"AGREEMENT" means this Multicurrency Credit Agreement, as it may
from time to time be amended, restated, supplemented or otherwise
modified.
"ALTERNATIVE CURRENCY" means any lawful currency other than
Dollars which is freely transferable and convertible into Dollars.
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"ANNIVERSARY DATE" means each September 30 occurring during the term
of this Agreement, commencing September 30, 1997, or if any such date is
not a Business Day, the next preceding Business day.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate
Advance, such Bank's CD Lending Office in the case of an Adjusted CD
Rate Advance, and such Bank's Eurocurrency Lending Office in the case
of a Eurocurrency Advance, and, in the case of a B Advance, the office
of such Bank notified by such Bank to the Agent as its applicable
Lending office with respect to such B Advance.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance in
substantially the form of EXHIBIT C hereto pursuant to which a Bank assigns
all or a portion of such Bank's rights and obligations under this Agreement
in accordance with the terms of SECTION 9.08.
"ASSUMPTION AND ACCEPTANCE" means an assumption and acceptance in
substantially the form of EXHIBIT C-1 hereto pursuant to which an Added
Bank assumes a Commitment hereunder, or increases its Commitment hereunder,
as applicable, in accordance with the terms of SECTION 2.05(b).
"B ADVANCE" means an advance by a Bank to a Borrower as part of a
B Borrowing resulting from the applicable auction bidding procedure
described in SECTION 2.03.
"B BORROWING" means a borrowing consisting of simultaneous B
Advances to a Borrower from each of the Banks whose offer to make a B
Advance as part of such borrowing has been accepted by the Company on
behalf of such Borrower under the applicable auction bidding procedure
described in SECTION 2.03.
"B NOTE" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of EXHIBIT A-2 hereto,
evidencing the indebtedness of such Borrower to such Bank resulting
from a B Advance made by such Bank.
"B REDUCTION" has the meaning specified in SECTION 2.01.
"BASE RATE" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the higher of:
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(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; or
(b) one-half of one percent per annum above the
Federal Funds Rate.
"BASE RATE ADVANCE" means an A Advance denominated in Dollars
which bears interest as provided in SECTION 2.07(a).
"BORROWER" means the Company or any Borrowing Subsidiary, and
their respective successors and permitted assigns, and "BORROWERS"
means all of the foregoing.
"BORROWING" means an A Borrowing or a B Borrowing.
"BORROWING SUBSIDIARY" means any Subsidiary (i) that is a Wholly-
Owned Consolidated Subsidiary, and (ii) as to which an Election to
Participate shall have been delivered to the Agent, duly executed on
behalf of such Borrowing Subsidiary and the Company, prior to the date
of any Notice of Borrowing on behalf of such Borrowing Subsidiary.
"BUSINESS DAY" means a day of the year (i) on which banks are not
required or authorized to close in New York City, (ii) if the
applicable Business Day relates to any Eurocurrency Advance, on which
dealings are carried on in the London interbank market and (iii) if
the applicable Business Day relates to a disbursement to or payment by
a Borrowing Subsidiary, on which banks are not required or authorized
to close in the city in which the chief executive office or principal
place of business of such Borrowing Subsidiary is located.
"CAPITALIZATION" means, as of any date, the sum of Total Debt
plus Shareholders' Equity.
"CD LENDING OFFICE" means, with respect to any Bank, the office of
such Bank specified as its "CD Lending Office" opposite its name on
SCHEDULE I hereto (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Agent.
"CHANGE OF CONTROL" means an event which shall be deemed to have
occurred if any person or group of persons (within the meaning of
Section 13 or 14 of the Exchange Act) acquires beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Exchange Act) of stock of the Company of
any class or classes where the
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stock the beneficial ownership of which is so acquired carries (otherwise
than by reason only of the happening of a contingency) more than 50 percent
of the ordinary voting power for the election of directors generally of the
Company; or, during any period of 12 consecutive calendar months,
individuals:
(i) who were directors of the Company on the first day of such
period, or
(ii) whose election or nomination for election to the board of
directors of the Company was recommended or approved by at least
a majority of the directors then still in office who were
directors of the Company on the first day of such period, or
whose election or nomination for election was so approved
shall cease to constitute a majority of the board of directors of the
Company.
"COMMITMENT" has the meaning specified in SECTION 2.01.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary the
accounts of which would be consolidated with those of the Company in
its consolidated financial statements at such date in accordance with
GAAP.
"CONVERT", "CONVERSION", and "CONVERTED" each refer to a
conversion of A Advances of one Type into A Advances of another Type
pursuant to SECTION 2.09, 2.10 or 2.13.
"CREDIT RATING" means, at any time, the credit rating on the
Company's long-term senior unsecured debt then most recently publicly
announced by either Moody's or S&P and "CREDIT RATINGS" means both
such credit ratings.
"DEBT" means (but without duplication of any item) (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, excluding
trade obligations and other accounts payable arising in the ordinary
course of business, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as
capital leases, (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, and (vi) liabilities in
respect of unfunded vested benefits under plans covered by Title IV of
ERISA. "DEBT" shall not include contingent obligations for the
liabilities of any Joint Venture Entity imposed solely as a matter of
law by virtue of ownership of equity interests in such Joint Venture
Entity.
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"DEFAULT" means any event which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
"DOLLARS" and the sign "$" each means lawful money of the United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office"
opposite its name on SCHEDULE I hereto or such other office of such
Bank as such Bank may from time to time specify to the Company and the
Agent.
"ELECTION TO PARTICIPATE" means an Election to Participate in
substantially the form of EXHIBIT D hereto.
"ELIGIBLE ASSIGNEE" means (i) a Bank or any affiliate of a Bank;
(ii) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at
least $250,000,000; or (iii) a commercial bank organized under the
laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital and
surplus of at least $250,000,000 or the local currency equivalent
thereof, provided that such bank is acting through a branch or agency
located in the United States.
"ERISA" means the Employment Retirement Income Security Act of
1974, as amended from time to time and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" shall mean any (i) corporation which is a
member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Internal Revenue Code) as the Company
or any of its Subsidiaries, (ii) partnership, trade or business under
common control (within the meaning of Section 414(c) of the Internal
Revenue Code) with the Company or any of its Subsidiaries, and (iii)
member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Company or any of
its Subsidiaries, any corporation described in clause (i) or any
partnership, trade or business described in clause (ii).
"EUROCURRENCY ADVANCE" means an Advance denominated in Dollars or
in an Alternative Currency which bears interest as provided in SECTION
2.07(c).
"EUROCURRENCY LENDING OFFICE" means, with respect to any Bank,
the office of such Bank specified as its "Eurocurrency Lending Office"
opposite its
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name on SCHEDULE I hereto (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Bank as such Bank may from
time to time specify to the Company and the Agent. A Bank may specify
different offices for its A Advances denominated in Dollars and its A
Advances denominated in Alternative Currencies, respectively, and the term
"Eurocurrency Lending Office" shall refer to any or all such offices,
collectively, as the context may require when used in respect of such Bank.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EUROCURRENCY RATE" means, for the Interest Period for each
Eurocurrency Advance comprising part of the same A Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in Dollars or
in the relevant Alternative Currency are offered by the principal
office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurocurrency
Advance comprising part of such A Borrowing and for a period equal to
such Interest Period. The Eurocurrency Rate for the Interest Period
for each Eurocurrency Advance comprising part of the same A Borrowing
shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, SUBJECT,
HOWEVER, to the provisions of SECTION 2.09.
"EUROCURRENCY RATE RESERVE PERCENTAGE" of any Bank for the
Interest Period for any Eurocurrency 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 Bank 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.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"FIXED RATE AUCTION" has the meaning specified in SECTION
2.03(b)(i).
"GAAP" means generally accepted accounting principles set forth
in the opinions, statements and pronouncements of the Financial
Accounting Standards Board, Accounting Principles Board and the
American Institute of Certified Public Accountants or in such other
statements by such other entity as may be in general use by
significant segments of the accounting profession, which are
applicable to the circumstances as of the date of determination and in
any event applied in a manner consistent with the application thereof
used in the preparation of the financial statements referred to in
SECTION 4.01(e).
"INDEXED RATE AUCTION" has the meaning specified in SECTION
2.03(b)(i).
"INSUFFICIENCY" means, with respect to any Plan, the amount, if
any, by which the present value of the vested benefits under such Plan
exceeds the fair market value of the assets of such Plan allocable to
such benefits.
"INTEREST PERIOD" means, for each Adjusted CD Rate Advance
comprising part of the same A Borrowing or each Eurocurrency Advance
comprising part of the same A Borrowing, the period commencing on the
date of such A Advance or the date of the Conversion or
Redenomination, as applicable, of any Base Rate Advance into such an A
Advance and ending on the last day of the period selected by the
Company (on behalf of the respective Borrower) pursuant to the
provisions below, and thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Company (on behalf of
the respective Borrower) pursuant to the provisions of SECTION 2.10
and subject to the provisions below. The duration of each such
Interest Period shall be 30, 60, 90, 120, 150 or 180 days in the case
of an Adjusted CD Rate Advance, and one, two, three or six months, or
nine or twelve months, if
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available, in the case of a Eurocurrency Advance, in each case as the
Company may select pursuant to the provisions of SECTION 2.02(a) or SECTION
2.10, as applicable; PROVIDED, HOWEVER, that: (i) Interest Periods
commencing on the same date for A Advances comprising part of the same A
Borrowing shall be of the same duration; and (ii) whenever the last day of
any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day; PROVIDED, in the case of any Interest Period
for a Eurocurrency 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. If, in accordance with SECTION 2.13 or otherwise, any A Borrowing
shall include both Eurocurrency Advances and Base Rate Advances, each such
Base Rate Advance shall be assigned an Interest Period that is coextensive
with the Interest Period then assigned to such Eurocurrency Advances.
"JOINT VENTURE" means the Joint Venture Entities, the equity in
the income of which is reported on the consolidated income statements
of the Company and its Consolidated Subsidiaries.
"JOINT VENTURE AGREEMENT" means the Amended and Restated Umbrella
Agreement dated as of June 26, 1991 between the Company and Xxxxxx
Kommanditgesellschaft auf Aktien.
"JOINT VENTURE ENTITIES" means the joint venture entities and
their subsidiaries collectively, from time to time established in
accordance with the terms of the Joint Venture Agreement.
"MAJORITY BANKS" means at any time Banks holding at least 51% of
the then aggregate unpaid principal amount of the A Notes held by
Banks, or, if no such principal amount is then outstanding, Banks
having at least 51% of the Commitments. If at any time there shall be
no principal amount outstanding under the A Notes and the Commitments
shall have been terminated, "MAJORITY BANKS" shall mean the holders of
51% of the then aggregate unpaid principal amount of the B Notes.
"MARGIN STOCK" has the meaning specified in Regulation U issued
by the Board of Governors of the Federal Reserve System.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Company or any of its ERISA
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Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means an employee benefit plan, other
than a Multiemployer Plan, subject to Title IV of ERISA to which the
Company or any of its ERISA Affiliates, and more than one employer
other than the Company or any of its ERISA Affiliates, is making or
accruing an obligation to make contributions or, in the event that any
such plan has been terminated, to which the Company or any of its
ERISA Affiliates made or accrued an obligation to make contributions
during any of the five plan years preceding the date of termination of
such plan.
"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" means (i) in the case of a B Borrowing
proposed to be made pursuant to SECTION 2.03(b), a written request for
such B Borrowing substantially in the form of EXHIBIT B-2 hereto and
(ii) in the case of a B Borrowing proposed to be made pursuant to
SECTION 2.03(c), a written request for such B Borrowing substantially
in the form of EXHIBIT B-3 hereto.
"PAYMENT OFFICE" means (i) for Dollars, the principal office of
Citibank in New York City, located on the date hereof at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) for any Alternative
Currency, the office of Citibank International Plc located at 000
Xxxxxx, Xxxxxx XX0X XXX Xxxxxxx, or in either case such other office
of the Agent or the Euro-Agent as shall be from time to time selected
by it by written notice to the Company and the Banks.
"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.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PLAN" means an employee benefit plan, other than a Multiemployer
Plan, which is (or, in the event that any such plan has been
terminated within five years after a transaction described in Section
4069 of ERISA, was) maintained for employees of the Company or any of
its ERISA Affiliates and subject to Title IV of ERISA.
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"PRIMARY CURRENCY" means the lawful currency of each of the Federal
Republic of Germany, France, Japan, Italy, the United Kingdom and Canada.
"REDENOMINATE", "REDENOMINATION" and "REDENOMINATED" each refer to
redenomination of Advances comprising all or part of the same A Borrowing
from Dollars into an Alternative Currency or from an Alternative Currency
into Dollars or another Alternative Currency, or the continuation of such
Advances in the same Alternative Currency, in each case pursuant to SECTION
2.09, 2.10(b) or 2.13.
"REFERENCE BANKS" means Citibank and Xxxxxx Guaranty Trust
Company of New York.
"RESTATEMENT DATE" means September 30, 1996, the date that the
amendment and restatement of this Agreement has become effective pursuant
to SECTION 9.17.
"S&P" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHAREHOLDERS' EQUITY" means at any date the consolidated
shareholders' equity of the Company and its Consolidated Subsidiaries
which would appear as such on a consolidated balance sheet as of such
date of the Company and its Consolidated Subsidiaries, after deducting
treasury stock and as determined in accordance with GAAP.
"SIGNIFICANT SUBSIDIARY" shall have the meaning assigned to such
term in Regulation S-X issued pursuant to the Securities Act and the
Exchange Act.
"STATED TERMINATION DATE" means September 30, 2001, or such later date
as may be established pursuant to SECTION 2.19.
"SUBSIDIARY" means any corporation or other entity of which
securities having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are
at the time directly or indirectly (through one or more Subsidiaries)
owned or controlled by the Company.
"TERMINATION DATE" means the Stated Termination Date or the
earlier date of termination in whole of the Commitments pursuant to
SECTION 2.05 or 6.01.
"TERMINATION EVENT" means (i) a "reportable event," as such term
is described in Section 4043 of ERISA (other than a "reportable event"
not
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subject to the provision for 30-day notice to the PBGC), or an event
described in Section 4062(f) of ERISA, or (ii) the withdrawal of the
Company or any of its ERISA Affiliates from a Multiple Employer Plan during
a plan year in which it was a "substantial employer", as such term is
defined in Section 4001(a)(2) of ERISA, or the incurrence of liability by
the Company or any of its ERISA Affiliates under Section 4064 of ERISA upon
the termination of a Multiple Employer Plan, or (iii) the distribution of a
notice of intent to terminate a Plan pursuant to Section 4041(a)(2) of
ERISA or the treatment of a Plan amendment as a termination under Section
4041 of ERISA, or (iv) the institution of proceedings to terminate a Plan
by the PBGC under Section 4042 of ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan.
"TOTAL COMMITMENT" means, at any time, the sum of all of the
Commitments at such time.
"TOTAL DEBT" means, as of any date, all Debt of the Company and
its Consolidated Subsidiaries on a consolidated basis, other than, to
the extent included in Debt, liabilities in respect of unfunded vested
benefits under plans covered by Title IV of ERISA.
"TYPE", in respect of any A Advance, has the meaning assigned
thereto in the definition herein of "A ADVANCE".
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated
Subsidiary in which all of the shares of capital stock or other equity
interests are, at the time, directly or indirectly owned by the
Company; PROVIDED that up to 10% of each class of such shares of
capital stock or other equity interests may be directors' qualifying
shares or shares or equity interests issued by such Subsidiary under
employee compensation or incentive plans.
"WITHDRAWAL LIABILITY" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.03. ACCOUNTING TERMS AND CHANGE IN ACCOUNTING PRINCIPLES.
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. If any changes in accounting principles from those used
in the preparation of the financial statements referred to in SECTION 4.01(e)
are hereafter required or permitted by the
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rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company with the agreement of its independent certified public accountants and
such changes result in a change in the components of the calculation of any of
the financial covenants, standards or terms found in ARTICLE V hereof, the
Company and the Agent agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the Company's financial condition shall be the same
after such changes as if such changes had not been made, PROVIDED, HOWEVER, that
no change in GAAP that would affect the components of the calculation of any of
such financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Agent, to so reflect such change in accounting principles. Without limiting the
generality of the foregoing, any sale of accounts receivable, chattel paper,
instruments, general intangibles and related equipment or inventory or any other
assets by the Company or any Subsidiary which constitutes a sale of such assets
under GAAP as in effect from time to time shall not constitute Debt under this
Agreement or the grant of a Lien on such assets for purposes of this Agreement.
Notwithstanding anything in the second sentence of this Section to the contrary,
whether any such sale constitutes a sale shall be determined by SFAS 77 until
the effective date of SFAS 125, and shall be determined by SFAS 125 or any
successor pronouncement from and after its respective effective date.
SECTION 1.04. CURRENCY EQUIVALENTS GENERALLY. For all purposes of
this Agreement, except as otherwise provided in ARTICLE II, the equivalent in
any Alternative Currency of an amount in Dollars shall be determined at the rate
of exchange quoted by Citibank, in London, at 9:00 A.M. (London time) on the
date of determination, to prime banks in London for the spot purchase in the
London foreign exchange market of such amount of Dollars with such Alternative
Currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE A ADVANCES. (a) Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrowers from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount (determined in Dollars)
not to exceed at any time outstanding the Dollar amount set opposite such Bank's
name on the signature pages hereof (or of any Assignment and Acceptance or
Assumption and Acceptance to which such Bank is a party), as such amount may be
reduced or increased pursuant to SECTION 2.05 (such Bank's "COMMITMENT"),
PROVIDED that the aggregate amount of the Commitments of the Banks shall be
deemed used from time to time to the extent of the aggregate principal amount of
the B Advances then outstanding and such deemed use of the aggregate amount of
the Commitments
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shall be applied to the Banks ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "B
REDUCTION").
(b) Each A Borrowing shall consist of A Advances of the same Type
made on the same day to the same Borrower by the Banks ratably according to
their respective Commitments, and shall be in an aggregate amount:
(i) in the case of an A Borrowing comprised of Base Rate
Advances, not less than $1,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(ii) in the case of an A Borrowing comprised of Eurocurrency
Advances denominated in Dollars or Adjusted CD Rate Advances, not less than
$9,000,000 or an integral multiple of $1,000,000 in excess thereof; and
(iii) in the case of an A Borrowing comprised of Eurocurrency
Advances denominated in a Primary Currency, not less than the equivalent in
such Primary Currency of $9,000,000 or an integral multiple of the
equivalent in such Primary Currency of $1,000,000; and
(iv) in the case of an A Borrowing comprised of Eurocurrency
Advances denominated in any Alternative Currency other than a Primary
Currency, not less than any amount (and an integral multiple in excess
thereof) advised to the Company by the Euro-Agent on the basis of then
prevailing market conditions and conventions;
PROVIDED, that in the case of any such A Borrowing comprised of Eurocurrency
Advances denominated in an Alternative Currency, the proceeds of which shall be
used to repay a then maturing A Borrowing comprised of Eurocurrency Advances
denominated in such Alternative Currency, such new A Borrowing may, subject to
the terms and conditions otherwise set forth herein, be in an aggregate
principal amount equal to the aggregate principal amount of such maturing A
Borrowing.
(c) Within the limits of each Bank's Commitment, a Borrower may
borrow, repay pursuant to SECTION 2.06 or prepay pursuant to SECTION 2.11, and
reborrow under this SECTION 2.01. For purposes of this SECTION 2.01 and all
other provisions of this ARTICLE II, the equivalent in Dollars of any
Alternative Currency or the equivalent in any Alternative Currency of Dollars or
of any other Alternative Currency shall be determined in accordance with SECTION
2.16.
SECTION 2.02. MAKING THE A ADVANCES. (a) Each A Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) by the
Company (on behalf of the applicable Borrower):
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(w) in the case of a proposed A Borrowing comprised of Base Rate
Advances, to the Agent on the date of such proposed Borrowing;
(x) in the case of a proposed A Borrowing comprised of Adjusted CD
Rate Advances, to the Agent two Business Days prior to the date of such
proposed Borrowing;
(y) in the case of a proposed A Borrowing comprised of Eurocurrency
Advances denominated in Dollars, to the Agent two Business Days prior to
the date of such proposed Borrowing; and
(z) in the case of a proposed A Borrowing comprised of Eurocurrency
Advances denominated in an Alternative Currency, to the Euro-Agent three
Business Days prior to the date of such proposed Borrowing.
The Agent or Euro-Agent, as applicable, shall give each Bank prompt notice
thereof by telecopy, telex or cable. Each such notice of an A Borrowing (a
"NOTICE OF A BORROWING") shall be by telecopy, telex or cable, confirmed
immediately in writing, in substantially the form of EXHIBIT B-1 hereto,
specifying therein the requested (i) Borrower, (ii) date of such A Borrowing,
(iii) Type of A Advances comprising such A Borrowing, (iv) in the case of a
proposed A Borrowing comprised of Eurocurrency Advances, currency of such A
Advances, (v) in the case of a proposed A Borrowing comprised of Eurocurrency
Advances or Adjusted CD Rate Advances, initial Interest Period for each such
Advance and (vi) aggregate amount of such A Borrowing. The Company shall
certify, in each Notice of A Borrowing, the Credit Ratings, if any, then in
effect. In the case of an A Borrowing comprised of Eurocurrency Advances
denominated in an Alternative Currency, the Company shall request, within one-
half hour prior to the issuance of the applicable Notice of A Borrowing, the
advice of the Euro-Agent as to the applicable exchange rate then in effect with
respect to such Alternative Currency, and the Company shall specify in such
Notice of A Borrowing the exchange rate so advised to it by the Euro-Agent. In
the case of a proposed A Borrowing comprised of Eurocurrency Advances, the Agent
or the Euro-Agent, as applicable, shall promptly notify each Bank and the
Company of the applicable interest rate under SECTION 2.07(b).
(b) Each Bank shall make available for the account of its Applicable
Lending Office:
(i) in the case of an A Borrowing comprised of Base Rate
Advances, to the Agent before 12:00 noon (New York City time)(or, if
the applicable Notice of A Borrowing shall have been given on the date
of such A Borrowing, before 4:00 P.M. (New York City time)) on the
date of such A Borrowing, at such account maintained at the Payment
Office for Dollars as shall have been notified by the Agent to the
Banks prior thereto and in same day funds, such Bank's ratable portion
of such A Borrowing;
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(ii) in the case of an A Borrowing comprised of Eurocurrency
Advances denominated in Dollars or Adjusted CD Rate Advances, to the
Agent before 12:00 noon (New York City time) on the date of such A
Borrowing, at such account maintained at the Payment Office for
Dollars as shall have been notified by the Agent to the Banks prior
thereto and in same day funds, such Bank's ratable portion of such A
Borrowing in Dollars; and
(iii) in the case of an A Borrowing comprised of Eurocurrency
Advances denominated in an Alternative Currency, to the Euro-Agent
before 12:00 noon (London time) on the date of such A Borrowing, at
such account maintained at the Payment Office for such Alternative
Currency as shall have been notified by the Euro-Agent to the Banks
prior thereto and in same day funds, such Bank's ratable portion of
such A Borrowing in such Alternative Currency.
After the Agent's or the Euro-Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in ARTICLE III, the Agent or the Euro-
Agent, as applicable, will make such funds available to the applicable Borrower
at the aforesaid applicable Payment Office.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower on whose behalf it shall have been submitted. In the case of any A
Borrowing which the related Notice of A Borrowing specifies is to be comprised
of Eurocurrency Advances, the applicable Borrower shall indemnify each Bank
against any loss, cost or expense reasonably incurred by such Bank 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, cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund the A Advance to be made by such Bank as part of such A Borrowing
when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent or Euro-Agent, as applicable, shall have
received notice from a Bank prior to the date of any A Borrowing that such Bank
will not make available to the Agent or Euro-Agent such Bank's ratable portion
of such A Borrowing, the Agent or Euro-Agent, as applicable, may assume that
such Bank has made such portion available to it on the date of such A Borrowing
in accordance with SUBSECTION (b) of this SECTION 2.02 and it may, in reliance
upon such assumption, make (but shall not be required to make) available to the
applicable Borrower on such date a corresponding amount. If and to the extent
that such Bank shall not have so made such ratable portion available to the
Agent or the Euro-Agent, as applicable, such Bank and such Borrower severally
agree to repay to the Agent or Euro-Agent, as applicable, forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such amount
is repaid to the Agent or the Euro-Agent, as
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applicable, at (i) in the case of such Borrower, the interest rate applicable at
the time to A Advances comprising such A Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Agent or Euro-
Agent, as applicable, such corresponding amount, such amount so repaid shall
constitute such Bank's A Advance as part of such A Borrowing for purposes of
this Agreement.
(e) The failure of any Bank to make the A Advance to be made by it as
part of any A Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its A Advance on the date of such A Borrowing, but no
Bank shall be responsible for the failure of any other Bank to make the A
Advance to be made by such other Bank on the date of any A Borrowing.
SECTION 2.03. THE B ADVANCES. (a) Each Bank severally agrees that
the Company and any Borrowing Subsidiary may make B Borrowings under this
SECTION 2.03 from time to time on any Business Day during the period from the
date hereof until the date occurring 15 days prior to the Termination Date in
the manner set forth below; PROVIDED that, following the making of each B
Borrowing, the aggregate amount (determined in Dollars) of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Banks (computed without regard to any B Reduction).
(b) The procedures for the solicitation and acceptance of B Advances
to be denominated in Dollars are set forth below:
(i) The Company (on behalf of itself or any Borrowing
Subsidiary) may request a B Borrowing denominated in Dollars under
this SECTION 2.03(b) by delivering to the Agent, by telecopier, telex
or cable, confirmed immediately in writing, a Notice of B Borrowing,
identifying the applicable Borrower and specifying the date and
aggregate amount of the proposed B Borrowing, the maturity date for
repayment of each B Advance to be made as part of such B Borrowing
(which maturity date may not be earlier than the date occurring 15
days after the date of such B Borrowing or later than the Termination
Date), the interest payment date or dates relating thereto, and any
other terms to be applicable to such B Borrowing, not later than 10:00
A.M. (New York City time) (A) one Business Day prior to the date of
the proposed B Borrowing, if the Company shall specify in the Notice
of B Borrowing that the rates of interest to be offered by the Banks
shall be fixed rates per annum (such type of solicitation being a
"FIXED RATE AUCTION") and (B) three Business Days prior to the date of
the proposed B Borrowing, if the Company shall instead specify in the
Notice of B Borrowing an index or other basis to be used by the Banks
in determining the rates of interest to be offered by them (such type
of solicitation being an "INDEXED RATE AUCTION"). The Company shall,
in addition, certify in each Notice of B Borrowing the Credit Ratings,
if any, then in effect. The Agent shall, promptly following its
receipt of a Notice of B Borrowing under
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this SECTION 2.03(b), notify each Bank of such request by sending such Bank
a copy of such Notice of B Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more B Advances to the applicable
Borrower as part of such proposed B Borrowing at a rate or rates of
interest specified by such Bank in its sole discretion, by notifying
the Agent (which shall give prompt notice thereof to the Company),
before 10:00 A.M. (New York City time) (A) on the date of such
proposed B Borrowing, in the case of a Fixed Rate Auction, and (B) two
Business Days before the date of such proposed B Borrowing, in the
case of an Indexed Rate Auction, of the minimum amount and maximum
amount of each B Advance which such Bank would be willing to make as
part of such proposed B Borrowing (which amounts may, subject to the
proviso to the first sentence of SECTION 2.03(a), exceed such Bank's
Commitment), the rate or rates of interest therefor and such Bank's
Applicable Lending Office with respect to such B Advance; PROVIDED
that if the Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Company
of such offer before 9:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Agent by the other
Banks.
(iii) The Company shall, in turn, before 11:00 A.M. (New York
City time) (A) on the date of such proposed B Borrowing, in the case
of a Fixed Rate Auction, and (B) two Business Days before the date of
such proposed B Borrowing, in the case of an Indexed Rate Auction,
either:
(x) cancel such B Borrowing by giving the Agent notice to
that effect, or
(y) accept (on behalf of the applicable Borrower), subject
to SECTION 2.03(e), one or more of the offers made by any Bank or
Banks pursuant to PARAGRAPH (ii) above, in its sole discretion,
by giving notice to the Agent of the amount of each B Advance
(which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to
the Company by the Agent on behalf of such Bank for such B
Advance pursuant to PARAGRAPH (ii) above) to be made by each Bank
as part of such B Borrowing, and reject any remaining offers made
by Banks pursuant to PARAGRAPH (ii) above by giving the Agent
notice to that effect.
(iv) If the Company notifies the Agent that such B Borrowing is
cancelled pursuant to PARAGRAPH (iii)(x) above, the Agent shall give
prompt notice thereof to the Banks and such B Borrowing shall not be
made.
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(v) If the Company accepts (on behalf of the applicable
Borrower) one or more of the offers made by any Bank or Banks pursuant
to PARAGRAPH (iii)(y) above, the Agent shall in turn promptly notify
(A) each Bank that has made an offer as described in paragraph (ii)
above of the date and aggregate amount of such B Borrowing and whether
or not any offer or offers made by such Bank pursuant to paragraph
(ii) above have been accepted by the Company, (B) each Bank that is to
make a B Advance as part of such B Borrowing, of the amount of each B
Advance to be made by such Bank as part of such B Borrowing, and (C)
each Bank that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Agent has received forms of documents appearing
to fulfill the applicable conditions set forth in ARTICLE III. Each
Bank that is to make a B Advance as part of such B Borrowing shall,
before 12:00 noon (New York City time) on the date of such B Borrowing
specified in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Bank shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Agent at the Payment Office such Bank's portion of such
B Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in ARTICLE III and after receipt by the Agent of
such funds, the Agent will make such funds available to the applicable
Borrower at the Agent's aforesaid address. Promptly after each B
Borrowing the Agent will notify each Bank of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(c) The procedures for the solicitation and acceptance of B Advances
to be denominated in an Alternative Currency are set forth below:
(i) The Company (on behalf of itself or any Borrowing
Subsidiary) may request a B Borrowing denominated in an Alternative
Currency under this SECTION 2.03(c) by delivering to the Euro-Agent,
by telecopier, telex or cable, confirmed immediately in writing, a
Notice of a B Borrowing identifying the applicable Borrower and
specifying the date and aggregate amount of the proposed B Borrowing,
the maturity date for repayment of each B Advance to be made as part
of such B Borrowing (which maturity date may not be earlier than the
date occurring 15 days after the date of such B Borrowing or later
than the Termination Date), the interest payment date or dates
relating thereto, the requested Alternative Currency and any other
terms to be applicable to such B Borrowing, not later than 4:00 P.M.
(London time) four Business Days prior to the date of the proposed B
Borrowing. Each solicitation made under this SUBSECTION (c) shall
contemplate an Indexed Rate Auction. The Company shall request,
within one-half hour prior to the issuance of a Notice of B Borrowing
under this SECTION 2.03(c), the advice of the Euro-Agent as to the
exchange rate then in effect with respect to the applicable
Alternative Currency, and the
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Company shall specify in such Notice of B Borrowing the exchange rate so
advised to it by the Euro-Agent. The Company shall, in addition, certify
in each Notice of B Borrowing the Credit Ratings, if any, then in effect.
The Euro-Agent shall, promptly following its receipt of a Notice of B
Borrowing under this SECTION 2.03(c), notify each Bank of such request by
sending such Bank a copy of such Notice of B Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more B Advances to the applicable
Borrower as part of such proposed B Borrowing in the requested
Alternative Currency and at a rate or rates of interest specified by
such Bank in its sole discretion, by notifying the Euro-Agent (which
shall give prompt notice thereof to the Company), before Noon (London
time) three Business Days before the date of such proposed B
Borrowing, of the minimum amount and maximum amount of each B Advance
which such Bank would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of SECTION 2.03(a), exceed such Bank's Commitment), the rate
or rates of interest therefor and such Bank's Applicable Lending
Office with respect to such B Advance; PROVIDED that if the Euro-Agent
in its capacity as a Bank shall, in its sole discretion, elect to make
any such offer, it shall notify the Company of such offer before 11:30
A.M. (London time) on the date on which notice of such election is to
be given to the Euro-Agent by the other Banks.
(iii) The Company shall, in turn, before 4:00 P.M. (London time)
three Business Days before the date of such proposed B Borrowing
either:
(x) cancel such B Borrowing by giving the Euro-Agent notice
to that effect, or
(y) accept (on behalf of the applicable Borrower), subject
to SECTION 2.03(e), one or more of the offers made by any Bank or
Banks pursuant to PARAGRAPH (ii) above, in its sole discretion,
by giving notice to the Euro-Agent of the amount of each B
Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Company by the Euro-Agent on behalf of such Bank
for such B Advance pursuant to PARAGRAPH (ii) above) to be made
by each Bank as part of such B Borrowing, and reject any
remaining offers made by Banks pursuant to PARAGRAPH (ii) above
by giving the Euro-Agent notice to that effect.
(iv) If the Company notifies the Euro-Agent that such B
Borrowing is cancelled pursuant to PARAGRAPH (iii)(x) above, the Euro-
Agent shall give prompt notice thereof to the Banks and such B
Borrowing shall not be made.
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(v) If the Company accepts (on behalf of the applicable
Borrower) one or more of the offers made by any Bank or Banks pursuant
to PARAGRAPH (iii)(y) above, the Euro-Agent shall in turn promptly
notify (A) each Bank that has made an offer as described in paragraph
(ii) above of the Borrower, Alternative Currency, date and aggregate
amount of such B Borrowing and whether or not any offer or offers made
by such Bank pursuant to paragraph (ii) above have been accepted by
the Company, (B) each Bank that is to make a B Advance as part of such
B Borrowing, of the amount of each B Advance to be made by such Bank
as part of such B Borrowing, and (C) each Bank that is to make a B
Advance as part of such B Borrowing, upon receipt, that the Euro-Agent
has received forms of documents appearing to fulfill the applicable
conditions set forth in ARTICLE III. Each Bank that is to make a B
Advance as part of such B Borrowing shall, before 12:00 noon (London
time) on the date of such B Borrowing specified in the notice received
from the Euro-Agent pursuant to clause (A) of the preceding sentence
or any later time when such Bank shall have received notice from the
Euro-Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Euro-Agent at the Payment Office for the applicable Alternative
Currency such Bank's portion of such B Borrowing, in same day funds.
Upon fulfillment of the applicable conditions set forth in ARTICLE III
and after receipt by the Euro-Agent of such funds, the Euro-Agent will
make such funds available to the applicable Borrower at the Euro-
Agent's aforesaid address. Promptly after each B Borrowing the Euro-
Agent will notify each Bank of the Borrower, Alternative Currency and
amount of the B Borrowing, the consequent B Reduction and the dates
upon which such B Reduction commenced and will terminate.
(d) Each B Borrowing shall, (i) in the case of a B Borrowing to be
denominated in Dollars, be in an aggregate amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof (ii) in the case of a B
Borrowing to be denominated in an Alternative Currency, be in such minimum
amount as shall be advised by the Euro-Agent as being appropriate in light of
the prevailing market conditions and conventions at the time notice is given
pursuant to SECTION 2.03(c)(i), and, following the making of each B Borrowing,
the Borrowers shall be in compliance with the limitation set forth in the
proviso to the first sentence of SUBSECTION (a) above.
(e) Each acceptance by the Company pursuant to SECTION
2.03(b)(iii)(y) or SECTION 2.03(c)(iii)(y) of the offers made in response to a
Notice of B Borrowing shall be treated as an acceptance of such offers in
ascending order of the rates or margins, as applicable, at which the same were
made but if, as a result thereof, two or more offers at the same such rate or
margin would be partially accepted, then the amounts of the B Advances in
respect of which such offers are accepted shall be treated as being the amounts
which bear the same proportion to one another as the respective amounts of the B
Advances so offered bear
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to one another but, in each case, rounded as the Euro-Agent may consider
necessary to ensure that the amount of each such B Advance is $500,000 (or, if
the currency in which such B Advance is denominated is an Alternative Currency,
such comparable and convenient multiple thereof as the Euro-Agent shall consider
appropriate for the purpose) or an integral multiple thereof.
(f) Within the limits and on the conditions set forth in this SECTION
2.03, each Borrower may from time to time borrow under this SECTION 2.03, repay
pursuant to SUBSECTION (g) below, and reborrow under this SECTION 2.03.
(g) Each Borrower shall repay to the Agent for the account of each
Bank which has made a B Advance to it or (if different) for the account of the
holder of the applicable B Note, on the maturity date of each B Advance (such
maturity date being that specified by the Company 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.
No Borrower shall have any right to prepay any principal amount of any B Advance
unless, and then only on the terms, specified by the Company for such B Advance
in the related Notice of B Borrowing and set forth in the B Note evidencing such
B Advance.
(h) Each Borrower shall pay interest on the unpaid principal amount
of each B Advance made to it, from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of interest
for such B Advance specified by the Bank making such B Advance in the related
notice submitted by such Bank pursuant to SECTION 2.03(b)(ii) or SECTION
2.03(c)(ii), as applicable, payable on the interest payment date or dates
specified by the Company for such B Advance in such Notice of B Borrowing, in
each case as provided in the B Note evidencing such B Advance. In the event the
term of any B Advance shall be longer than three months, interest thereon shall
be payable not less frequently than once each three-month period during such
term.
(i) The indebtedness of each Borrower resulting from each B Advance
made to it shall be evidenced by a separate B Note of such Borrower payable to
the order of the Bank making such B Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to pay
each Bank a facility fee at the respective rate per annum set forth below on
such Bank's average daily Commitment (irrespective of usage and without giving
effect to any B Reduction) from the date hereof until the Termination Date,
payable on the last day of each March, June, September and December during the
term of such Bank's Commitment, commencing December 31, 1996, and on the
Termination Date. The facility fee payable under this Agreement for all periods
prior to the Restatement Date shall be payable at the rates set forth in this
Agreement prior to its amendment and restatement on such date. Commencing on
the Restatement Date, the facility
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fee in respect of any period shall be determined on the basis of the Credit
Ratings in effect during such period, in accordance with the table set forth
below. The rate per annum at which such facility fee is calculated shall change
when and as any Credit Rating changes.
Credit Rating Facility Fee
------------- ------------
(Rate per annum)
A or better (S&P) OR 0.07%
A2 or better (Xxxxx'x)
Below A (S&P) and A2 (Xxxxx'x)
but
A- (S&P) OR 0.08%
A3 (Xxxxx'x)
Below A- (S&P) and A3 (Xxxxx'x)
but 0.09%
BBB+ (S&P) OR
Baa1 (Xxxxx'x)
Below BBB+ (S&P) and Baa1 (Xxxxx'x)
but 0.11%
BBB (S&P) OR
Baa2 (Xxxxx'x)
Below BBB (S&P) and Baa2 (Xxxxx'x) 0.15%
but
BBB- (S&P) AND Baa3 (Xxxxx'x)
Below BBB- (S&P) or Baa3 (Xxxxx'x) 0.20%
If, during any period, the Company shall not have Credit Ratings from both S&P
and Xxxxx'x, the Credit Rating of the Company for purposes of this SECTION
2.04(a) shall be deemed to be below BBB- (S&P) and below Baa3 (Xxxxx'x) during
such period. In addition, and notwithstanding the foregoing chart, if the
Credit Rating of the Company from S&P is more than one level higher or lower
than the equivalent Credit Rating of the Company from Xxxxx'x at such time, then
the facility fee rate shall be determined as if the applicable Credit Rating of
the Company from each of S&P and Xxxxx'x were one level higher than the lower of
the two Credit Ratings.
(b) AGENCY FEE. The Company agrees to pay to the Agent and the Euro-
Agent those fees as are described in that certain letter agreement dated
August 23, 1996 (as
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the same may from time to time be amended, supplemented, restated or otherwise
modified), when and as the same shall become due and payable by the Company as
provided therein.
SECTION 2.05. REDUCTION OF THE COMMITMENTS; INCREASE OF THE
COMMITMENTS. (a) The Company shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Banks; PROVIDED, that the
aggregate amount of the Commitments of the Banks shall not be reduced to an
amount which is less than the aggregate principal amount of the B Advances then
outstanding; and PROVIDED, FURTHER, that each partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) If the Company's Credit Rating is better than or equal to Baa3
from Xxxxx'x and BBB- from S&P, and no Default or Event of Default is
outstanding, the Company shall have the right, upon at least five (5) Business
Days' notice to the Agent, to add one or more bank or banks as new Banks
hereunder or to increase the Commitment of any existing Bank or Banks, with any
such existing Bank's consent, pursuant to the terms hereof (any such addition of
a new Bank or increase in the Commitment of an existing Bank upon the request of
the Company pursuant to this SECTION 2.05(b) being referred to as a "BANK
ADDITION"); PROVIDED that (i) each such proposed Bank, in the case of a bank not
already a Bank hereunder, is acceptable to the Agent (the consent of the Agent
not to be unreasonably withheld) and would have a Commitment equal to or
exceeding $10,000,000; and (ii) after giving effect to the proposed Bank
Addition, the Total Commitment would not exceed $275,000,000. Each notice of a
proposed Bank Addition (a "NOTICE OF BANK ADDITION") shall be by telex or
telecopy, confirmed immediately in writing, in substantially the form of EXHIBIT
B-4 hereto, specifying therein (i) the name and address of the proposed Added
Bank or Banks, (ii) the date on which the Company wishes such Bank Addition to
become effective, and (iii) the amount of the Commitment each such Added Bank
would have hereunder after giving effect to such Bank Addition. Each such
Notice of Bank Addition shall be accompanied by a certified copy of resolutions
of the Board of Directors of the Company approving the increase in the Total
Commitment which would result from such Bank Addition, and a favorable opinion
of the General Counsel of the Company with respect to the due authorization by
the Company of such Bank Addition and the enforceability of the Agreement and
any new or increased Notes resulting from such Bank Addition. If the conditions
set forth in the proviso contained in the first sentence of this SECTION 2.05(b)
have been satisfied, and the certificate and opinion referred to in the
preceding sentence have been delivered, the Agent shall forward to each such
Added Bank and the Company for execution by such Added Bank and the Company an
Assumption and Acceptance. The Added Bank shall, upon such execution, return
the executed Assumption and Acceptance to the Agent, for the Agent's acceptance
thereof, together with a processing and recordation fee of $3,000.
Upon such execution, delivery and acceptance, from and after the
effective date specified in each Assumption and Acceptance, each Added Bank
shall, in addition to the
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rights and obligations hereunder held by it immediately prior to such effective
date (if any), have the rights and obligations hereunder that have been assumed
by it pursuant to such Assumption and Acceptance and, in the case of a bank not
previously a Bank hereunder, shall become a Bank hereunder.
By executing and delivering an Assumption and Acceptance, each Added
Bank confirms to and agrees with each party hereto as follows: (i) neither the
Agent nor any Bank makes any representation or warranty, nor assumes any
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; and (ii) neither the
Agent nor any Bank makes any representation or warranty, nor assumes any
responsibility with respect to, the financial condition of the Company or any
Borrowing Subsidiary or the performance or observance by the Company or any
Borrowing Subsidiary of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto.
The Agent shall maintain at its address referred to in SECTION 9.02 a
copy of each Assumption and Acceptance delivered to and accepted by it. Such
copies shall be available for inspection by the Company or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
Upon its receipt of an Assumption and Acceptance executed by an Added
Bank and the Borrowers the Agent shall, if such Assumption and Acceptance has
been completed and is in substantially the form of EXHIBIT C-1 hereto, (i)
accept such Assumption and Acceptance, and (ii) give prompt notice thereof to
the Company. Within five (5) Business Days after receipt of such notice, the
Company, at its own expense, shall execute and deliver to the Agent a new A Note
to the order of such Added Bank. Such new A Note or Notes shall be dated the
effective date of such Assumption and Acceptance and shall otherwise be in
substantially the form of EXHIBIT A-1 hereto.
(c) If there are any A Advances outstanding on the effective date of
any Assumption and Acceptance, the Added Bank shall purchase from the other
Banks such participations in such A Advances as shall be necessary to cause such
Added Bank to share ratably (based on the proportion that such Added Bank's
Commitment bears to the Total Commitment after giving effect to the Bank
Addition) in each such A Advance. To purchase such participations, the Added
Bank shall before 12:00 noon (New York City time) on the effective date of its
Assumption and Acceptance, make available for the account of its Applicable
Lending Office to the Agent at its address referred to in SECTION 9.02, in
Dollars and in same day funds, such Added Bank's ratable portion (based on the
proportion that such Added Bank's Commitment (or the increase in such Added
Bank's Commitment, in the case of an Added Bank which is an existing Bank
hereunder) bears to the Total Commitment after giving effect to the Bank
Addition) of each A Borrowing then outstanding, together with an
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amount equal to such ratable portion of the interest which has accrued to such
date and remains unpaid on such A Borrowing. After the Agent's receipt of such
funds, the Agent will promptly make such same day funds available to the account
of each Bank in an amount to such Bank's ratable portion of such payment by the
Added Bank.
SECTION 2.06. REPAYMENT OF A ADVANCES. Except as otherwise provided
in SECTION 2.13, each Borrower shall repay on the Termination Date the principal
amount of each A Advance made to it.
SECTION 2.07. INTEREST ON A ADVANCES. Each Borrower shall pay
interest on the unpaid principal amount of each A Advance made by each Bank to
such Borrower from the date of such A Advance until such principal amount shall
be paid in full, at the following rates per annum:
(a) BASE RATE ADVANCES. If such A Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable monthly on the tenth day of each
month and on the date such Base Rate Advance shall be paid in full;
PROVIDED, that any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal at all
times to 2% per annum above the Base Rate in effect from time to time.
The Agent shall provide telephonic notice to the Company (which in
turn shall advise the applicable Borrower) of the amount of interest
due and payable on Base Rate Advances by a date not later than the
date such payment is due; PROVIDED, HOWEVER, that the Agent's failure
to give such notice shall not discharge the applicable Borrower from
the payment of interest but shall only delay the due date of such
interest until such telephonic notice is given.
(b) ADJUSTED CD RATE ADVANCES. If such A Advance is an Adjusted CD
Rate Advance, a rate per annum equal at all times during the Interest
Period for such A Advance to the sum of the Adjusted CD Rate for such
Interest Period for such Advance plus the Applicable CD Rate Margin,
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 at all times to
2% per annum above (x) if the originally scheduled Interest Period shall
then be in effect, the sum of the Adjusted CD Rate plus the Applicable CD
Rate Margin then in effect with respect to such A Advance, and (y) in all
other cases, the Base Rate in effect from time to time.
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"APPLICABLE CD RATE MARGIN" means, in respect of any Adjusted CD Rate
Advance, a rate per annum determined as of the first day of the Interest
Period for such Adjusted CD Rate Advance in reference to the table set
forth below on the basis of the Credit Ratings at such time.
Applicable CD Rate
Margin
Credit Rating (Rate per annum)
------------- --------------
A or better (S&P) OR
A2 or better (Xxxxx'x) 0.280%
Below A (S&P) and A2
(Xxxxx'x) but
A- (S&P) OR A3 (Xxxxx'x) 0.290%
Below A- (S&P) and A3 (Xxxxx'x)
but
BBB+ (S&P) OR Baa1 (Xxxxx'x) 0.335%
Below BBB+ (S&P) and Baa1 (Xxxxx'x)
but
BBB (S&P) OR Baa2 (Xxxxx'x) 0.390%
Below BBB (S&P) and Baa2 (Xxxxx'x)
but
BBB- (S&P) AND Baa3 (Xxxxx'x) 0.475%
Below BBB- (S&P) OR Baa3 (Xxxxx'x) 0.625%
If, on the first day of the Interest Period for any Adjusted CD Rate
Advance, the Company shall not have Credit Ratings from both S&P and
Xxxxx'x, the Credit Ratings of the Company for purposes of this SECTION
2.07(b) shall be deemed to be below BBB- (S&P) and below Baa3 (Xxxxx'x)
during such period. In addition, and notwithstanding the foregoing chart,
if the Credit Rating of the Company from S&P is more than one level higher
or lower than the equivalent Credit Rating from Xxxxx'x at such time, then
the Applicable CD Rate Margin shall be determined as if the applicable
Credit Rating of the Company from each of S&P and Xxxxx'x were one level
higher than the lower of the two Credit Ratings.
(c) EUROCURRENCY ADVANCES. If such A Advance is a Eurocurrency
Advance, a rate per annum equal at all times during the Interest
Period for such A Advance to the sum of the Eurocurrency Rate for such
Interest Period plus
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the Applicable Eurocurrency Margin, 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 at all times to 2% per annum above (x) if the
originally scheduled Interest Period shall then be in effect, the sum of
the Eurocurrency Rate plus the Applicable Eurocurrency Margin then in
effect with respect to such A Advance, and (y) in all other cases, the Base
Rate in effect from time to time. "APPLICABLE EUROCURRENCY MARGIN" means,
in respect of any Eurocurrency Advance, a rate per annum determined as of
the first day of the Interest Period for such Eurocurrency Advance in
reference to the table set forth below on the basis of the Credit Ratings
at such time.
Applicable
Eurocurrency Margin
Credit Rating (Rate per Annum)
------------- ---------------
A or better (S&P) OR
A2 or better (Xxxxx'x) 0.155%
Below A (S&P) and A2 (Xxxxx'x)
but
A- (S&P) OR
A3 (Xxxxx'x) 0.165%
Below A- (S&P) and A3 (Xxxxx'x)
but
BBB+ (S&P) OR
Baa1 (Xxxxx'x) 0.210%
Below BBB+ (S&P) and Baa1 (Xxxxx'x)
but
BBB (S&P) OR
Baa2 (Xxxxx'x) 0.265%
Below BBB (S&P) and Baa2 (Xxxxx'x)
but
BBB- (S&P) AND
Baa3 (Xxxxx'x) 0.350%
-00-
Xxxxx XXX- (S&P) OR
Baa3 (Xxxxx'x) 0.500%
If, on the first day of the Interest Period for any Eurocurrency Advance,
the Company shall not have Credit Ratings from both S&P and Xxxxx'x, the
Credit Ratings of the Company, for purposes of this SECTION 2.07(b), shall
be deemed to be below BBB- (S&P) and below Baa3 (Xxxxx'x) during such
period. In addition, and notwithstanding the foregoing chart, if the
Credit Rating of the Company from S&P is more than one level higher or
lower than the equivalent Credit Rating of the Company from Xxxxx'x at such
time, then the Applicable Eurocurrency Margin shall be determined as if the
Credit Rating of the Company from each of S&P and Xxxxx'x were one level
higher than the lower of the two Credit Ratings.
SECTION 2.08. ADDITIONAL INTEREST ON EUROCURRENCY ADVANCES. Each
Borrower shall pay to each Bank, so long as such Bank 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 Eurocurrency Advance made by such Bank to such Borrower, from the date of
such A Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurocurrency Rate for the Interest Period for such A Advance from (ii) the rate
obtained by dividing such Eurocurrency Rate by a percentage equal to 100% minus
the Eurocurrency Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such A Advance. Such
additional interest so notified to the Company (which in turn shall advise the
applicable Borrower) by any Bank shall be payable to the Agent (or, in the case
of any Eurocurrency Advance denominated in an Alternative Currency, the Euro-
Agent) for the account of such Bank on the dates specified for payment of
interest for such Advance in SECTION 2.07.
SECTION 2.09. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Agent (in the case of Adjusted CD Rate Advances and
Eurocurrency Advances denominated in Dollars) and the Euro-Agent (in the case of
Eurocurrency Advances denominated in any Alternative Currency) timely
information for the purpose of determining each Adjusted CD Rate or Eurocurrency
Rate, as applicable. The Agent and Euro-Agent, as applicable, shall give prompt
notice to the Company (which in turn shall advise the applicable Borrower) and
the Banks of the applicable interest rate determined by the Agent for purposes
of SECTION 2.07(a), (b) or (c), and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest rate
under SECTION 2.07(b) or (c), as applicable.
(b) If the Agent or the Euro-Agent shall, at least one Business Day
before the date of any requested A Borrowing or the Conversion, Redenomination
or continuation of any A Borrowing, notify the Company and the Banks that either
Reference Bank shall have failed
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to furnish timely information to the Agent for determining the Adjusted CD Rate
for any Adjusted CD Rate Advances, or the Eurocurrency Rate for any Eurocurrency
Advances denominated in a particular currency, the Agent shall forthwith notify
the Company and the Banks that the interest rate cannot be determined for such
Adjusted CD Rate Advances or Eurocurrency Advances, as the case may be,
whereupon
(i) each such Advance will automatically, on the last day of the then
outstanding Interest Period therefor, Convert into or be Redenominated as,
and with respect to a requested A Advance as part of a requested A
Borrowing, such Advance shall be, a Eurocurrency Advance denominated in
Dollars, or, if the request was for Adjusted CD Rate Advances, or if the
affected currency is Dollars, as applicable, a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(ii) the rights of the Borrowers to select, and the obligation of the
Banks to make, or to Convert Advances into or Redenominate or continue
Advances as, Adjusted CD Rate Advances or Eurocurrency Advances in such
currency, as the case may be, shall be suspended until the Agent shall
notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist.
(c) If, with respect to any Eurocurrency Advances, the Majority Banks
shall at least one Business Day before the requested date of, or the proposed
Conversion, Redenomination or continuation of the Advances comprising all or
part of, any A Borrowing, notify the Agent that the Eurocurrency Rate for any
Interest Period for such Advances in a particular currency will not adequately
reflect the cost to such Majority Banks of making, funding or maintaining their
respective Eurocurrency Advances for such Interest Period, the Agent shall
forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert or be
Redenominated into or continued as, and with respect to a requested A
Advance as part of a requested A Borrowing, such Advance shall be, a
Eurocurrency Advance denominated in Dollars (or, if the affected currency
is Dollars, a Base Rate Advance), and
(ii) the rights of the Borrowers to select, and the obligation of the
Banks to make, or to Convert Advances into, or Redenominate or continue
Advances as, Eurocurrency Advances in such currency shall be suspended
until the Majority Banks have notified the Agent and the Agent shall notify
the Company and the Banks that the circumstances causing such suspension no
longer exist.
(d) If any Bank shall, not later than 10:00 A.M. (London time) two
Business Days before the date of, or the proposed Conversion, Redenomination or
continuation of, any requested Eurocurrency Advance, notify the Agent or the
Euro-Agent that such Bank is not
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satisfied that deposits in the relevant Alternative Currency will be freely
available to it in the relevant amount and for the relevant Interest Period, the
Agent shall forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance of such Bank will
automatically, on the last day of the then existing Interest Period
therefor, Convert or be Redenominated into or continued as, and with
respect to a requested A Advance as part of a requested A Borrowing, such
Advance shall be, a Eurocurrency Advance denominated in Dollars and having
an Interest Period coextensive with the Interest Period in effect in
respect of all other A Advances comprising a part of such A Borrowing; and
(ii) the right of the Borrowers to request Eurocurrency Advances in
such Alternative Currency from such Bank as part of such A Borrowing or any
other A Borrowing shall be suspended until such Bank shall notify the Agent
or the Euro-Agent that the circumstances causing such suspension no longer
exist, and the Advance to be made by such Bank as part of such A Borrowing
(and the Advance to be made by such Bank as part of any subsequent A
Borrowing in respect of which such Alternative Currency shall have been
requested during such period of suspension) shall be a Eurocurrency Advance
denominated in Dollars and having an Interest Period coextensive with the
Interest Period in effect in respect of all other Advances comprising a
part of such A Borrowing.
(e) If any Bank shall, not later than 10:00 A.M. (London time) two
Business Days before the date of, or the proposed Conversion, Redenomination or
continuation of, any requested Eurocurrency Advance in an Alternative Currency
other than a Primary Currency, notify the Agent or the Euro-Agent that such
Bank, in its sole discretion, does not wish to fund the requested Eurocurrency
Advance in such Alternative Currency for the relevant Interest Period, the Agent
shall forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance of such Bank will
automatically, on the last day of the then existing Interest Period
therefor, Convert or be Redenominated into or continued as, and with
respect to a requested A Advance as part of a requested A Borrowing, such
Advance to be made by such Bank as part of such A Borrowing shall be, a
Eurocurrency Advance denominated in Dollars and having an Interest Period
coextensive with the Interest Period in effect in respect of all other A
Advances comprising a part of such A Borrowing; and
(ii) the right of the Borrowers to request Eurocurrency Advances in
such Alternative Currency from such Bank as part of such A Borrowing shall
be suspended as to such A Borrowing for such Interest Period.
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(f) Each of the Agent and the Euro-Agent shall, upon becoming aware
that the circumstances causing any such suspension referred to in SECTIONS 2.09
(b)-(e) or 2.13 no longer apply, promptly so notify the Company, PROVIDED that
the failure of the Agent or the Euro-Agent to so notify the Company shall not
impair the rights of the Banks under this SECTION 2.09 or SECTION 2.13, as
applicable, or expose the Agent or the Euro-Agent to any liability.
(g) If the applicable Borrower shall fail to select the duration of
any Interest Period for any Adjusted CD Rate Advances or any Eurocurrency
Advances in accordance with the provisions contained in the definition of
"Interest Period" in SECTION 1.01 and the provisions of SECTION 2.10, or is not
entitled to Convert, continue or Redenominate such Advances into or as Adjusted
CD Rate Advances or Eurocurrency Advances pursuant to SECTION 2.10, the Agent
will forthwith so notify the Company and the Banks and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(h) On the date on which the aggregate unpaid principal amount of A
Advances comprising any A Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $9,000,000 (or its equivalent in any Alternative
Currency), such A Advances shall, if they are A Advances of a Type other than
Base Rate Advances, automatically Convert or be Redenominated into Base Rate
Advances, and on and after such date the right of the applicable Borrower to
Convert or Redenominate such A Advances into A Advances of a Type other than
Base Rate Advances shall terminate; provided, however, that if and so long as
each such A Advance shall be of the same Type and have the same Interest Period
as A Advances comprising another Borrowing or other Borrowings of such Borrower,
and the aggregate unpaid principal amount of all such A Advances shall equal or
exceed $9,000,000 (or its equivalent in any Alternative Currency), the Borrower
shall have the right to continue all such Advances as, or to Convert or
Redenominate all such Advances into, Advances of such Type having such Interest
Period.
SECTION 2.10. VOLUNTARY CONVERSION OR CONTINUATION OF ADVANCES. (a)
The applicable Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the second Business Day prior
to the date of the proposed Conversion or continuation, and subject to the
provisions of SECTIONS 2.09 and 2.13 and the provisos in this SECTION 2.10(a),
Convert all or any part of the A Advances of one Type denominated in Dollars
comprising the same A Borrowing into Advances of another Type denominated in
Dollars or continue all or any part of the A Advances of one Type denominated in
Dollars comprising the same A Borrowing as A Advances of the same Type
denominated in Dollars; PROVIDED, HOWEVER, that any such Conversion or
continuation of any Adjusted CD Rate Advances or Eurocurrency Advances shall be
made on, and only on, the last day of an Interest Period for such Adjusted CD
Rate Advances or Eurocurrency Advances; PROVIDED FURTHER, that any such
Conversion or continuation of A Advances shall be in the minimum amounts and
increments specified in SECTION 2.01(b); and PROVIDED FURTHER,
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that no Advance may be Converted into or continued as, an Adjusted CD Rate
Advance or a Eurocurrency Advance, at any time that a Default or Event of
Default has occurred and is continuing. Each such notice of a Conversion or
continuation shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Adjusted CD Rate Advances or Eurocurrency Advances, the
duration of the Interest Period for each such A Advance.
(b) The Borrower may, upon notice given to the Agent not later than
11:00 a.m. (New York City time) on a Business Day at least three Business Days
prior to the date of the proposed Redenomination, and subject to the provisions
of SECTION 2.09 and 2.13 and the provisos in this SECTION 2.10(b), request that
all or any part of the Advances comprising the same A Borrowing be Redenominated
from Dollars into an Alternative Currency, from an Alternative Currency into
Dollars or another Alternative Currency, or continued in the same Alternative
Currency; PROVIDED, HOWEVER, that any Redenomination shall be made on, and only
on, the last day of an Interest Period for such Advances; PROVIDED FURTHER, that
any such Redenomination of A Advances shall be in the minimum amounts and
increments specified in SECTION 2.01(b); and PROVIDED FURTHER, that no Advance
may be Redenominated at any time that a Default or Event of Default has occurred
and is continuing. Each such notice of request of a Redenomination (a "NOTICE
OF REDENOMINATION") shall be by telecopier, telex or cable, confirmed
immediately in writing, specifying (i) the Advances comprising the A Borrowing
to be Redenominated, (ii) the date of the proposed Redenomination, (iii) the
currency into which such Advances are to be Redenominated, and (iv) the duration
of the Interest Period for such Advances upon being so Redenominated. Subject
to the provisions of SECTIONS 2.09 and 2.13 and of the second proviso in SECTION
2.10(b), each Advance so requested to be Redenominated will be Redenominated, on
the date specified therefor in such Notice of Redenomination, into an equivalent
amount thereof in the currency requested in such Notice of Redenomination, such
equivalent amount to be determined on such date in accordance with SECTION 2.16,
and, upon being so Redenominated, will have an initial Interest Period as
requested in such Notice of Redenomination.
SECTION 2.11. PREPAYMENTS. Subject to SECTION 9.04(b) hereof, a
Borrower may (i) following notice given to the Agent by the Company (on behalf
of such Borrower) not later than 11:00 A.M. (New York City time) on the proposed
date of prepayment, such notice specifying the applicable Borrower, the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given such Borrower shall, prepay the outstanding principal amounts of the Base
Rate Advances comprising part of the same A Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid and (ii) following notice given to the Agent (or, in
the case of Eurocurrency Advances denominated in any Alternative Currency, the
Euro-Agent) by the Company (on behalf of such Borrower) not later than 11:00
A.M. (London time) three Business Days prior to the proposed date of prepayment,
such notice specifying the applicable Borrower, the proposed date of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of the Adjusted CD Rate Advances or the
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Eurocurrency Advances comprising an A Borrowing in whole (and not in part),
together with accrued interest to the date of such prepayment on the principal
amount prepaid. In the case of an A Borrowing comprised of Base Rate Advances,
each partial prepayment shall be in an aggregate principal amount not less than
$1,000,000.
SECTION 2.12. INCREASED COSTS AND REDUCED RETURN. (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 the Assessment
Rate, or, in the case of Eurocurrency Advances, included in the Eurocurrency
Rate Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) adopted after
the Restatement Date, or reasonably determined by a Bank only after the
Restatement Date to be applicable to it or to its Eurocurrency Advances or
Adjusted CD Rate Advances, there shall be any increase after the date hereof in
the cost to any Bank of agreeing to make or making, funding or maintaining
Adjusted CD Rate Advances or Eurocurrency Advances, by an amount deemed by such
Bank to be material, then the Company shall from time to time, within 15 days
after demand by such Bank, accompanied by the certificate required therefor
under SECTION 2.12(c) (with a copy of such demand and such certificate to the
Agent), pay to the Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for such increased cost.
(b) If any Bank shall have determined that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office or any corporation controlling such Bank) with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, which
adoption, change, request or directive is effected, made or promulgated after
the Restatement Date, or if effective, made or promulgated prior to such date,
is reasonably determined by a Bank only after the Restatement Date to be
applicable to it or its obligations hereunder, has or would have the effect
after the date hereof of reducing the rate of return on such Bank's capital or
the capital of any corporation controlling such Bank as a consequence of such
Bank's obligation hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance by an amount deemed by such
Bank to be material, then the Company shall, from time to time, within 15 days
after demand by such Bank, accompanied by the certificate required therefor
under SECTION 2.12(c) (with a copy of such demand and such certificate to the
Agent), pay to the Agent for the account of such Bank such additional amount or
amounts as will compensate such Bank or such controlling corporation for such
reduction.
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(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. A certificate of any Bank claiming compensation under this
Section and setting forth in reasonable detail the additional amount or amounts
to be paid to it hereunder and the basis for the calculation thereof shall be
conclusive in the absence of manifest error.
The Company shall not be obligated to pay any additional amounts with respect to
a demand under SECTION 2.12(a) or 2.12(b) that are attributable to the period
(the "EXCLUDED PERIOD") ending 120 days prior to the Company's receipt of the
certificate with respect to such demand required under SECTION 2.12(c);
PROVIDED, HOWEVER, that to the extent such additional amounts accrue during the
Excluded Period because of the retroactive effect of the applicable law, rule,
regulation, guideline or request promulgated during the 120 day period prior to
the Company's receipt of such certificate, the limitation set forth in this
SECTION 2.11(d) shall not apply.
SECTION 2.13. ILLEGALITY. (a) In the event that any Bank shall have
determined (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) at any time that the making or
continuance of any of its Eurocurrency Advances in Dollars or in any Alternative
Currency has become unlawful because of the introduction of or any change in or
in the interpretation of any law or regulation or because of the assertion of
unlawfulness by any central bank or other governmental authority, then, in any
such event, such Bank shall give prompt notice (by telephone confirmed in
writing) to the Company and to the Agent of such determination (which notice the
Agent shall promptly transmit to the other Banks).
(b) Upon the giving of the notice to the Company referred to in
SUBSECTION (a) above, then (i) the obligation of the Banks to make, or to
Convert A Advances into or to continue A Advances as such Eurocurrency Advances
shall be suspended until the applicable Bank notifies the Agent and the Agent
shall notify the Company and the Banks that the circumstances causing such
suspension no longer exist, and (ii) if any affected Eurocurrency Advances are
then outstanding, the Company shall (or shall cause the affected Borrower), upon
at least one Business Day's written notice to the Agent (and, if the affected
Eurocurrency Advances are denominated in any Alternative Currency, the Euro-
Agent) and the affected Bank, or if permitted by applicable law no later than
the date permitted thereby, in the Company's sole discretion, either (i) prepay
the principal amount of all outstanding Eurocurrency Advances of such Bank to
which such notice related, together with accrued interest thereon to the date of
payment or (ii) Convert or Redenominate each such Eurocurrency Advance into a
Base Rate Advance, and, in each case be obligated to reimburse
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the Banks in respect thereof pursuant to SECTION 9.04(b) hereof. If more than
one Bank gives notice pursuant to SECTION 2.13(a) at any time, then all
outstanding Eurocurrency Advances of such Banks must be treated the same by the
applicable Borrower pursuant to this SECTION 2.13(b). Any Base Rate Advance
arising by reason of this SECTION 2.13(b) shall have an Interest Period assigned
to it that ends on the date that the Eurocurrency Advance for which it shall
have been substituted would have expired, and the principal thereof and interest
thereon shall be payable on the date that principal and interest would otherwise
have been payable on such Eurocurrency Advance. Such Base Rate Advance may not
be prepaid at any time prior to the date that the Eurocurrency Advances
comprising a part of such A Borrowing shall be prepaid.
SECTION 2.14. PAYMENTS AND COMPUTATIONS. (a) The Borrowers shall
make each payment hereunder and under the Notes (except with respect to
principal of, interest on, and other amounts relating to Advances denominated in
an Alternative Currency) not later than 11:00 A.M. (New York City time) on the
day when due in Dollars to the Agent in same day funds by deposit of such funds
to the Agent's account maintained at the Payment Office for Dollars in New York
City. The Borrowers shall make each payment hereunder and under the Notes with
respect to principal of, interest on, and other amounts relating to Advances
denominated in an Alternative Currency not later than 11:00 A.M. (London time)
on the day when due in such Alternative Currency to the Euro-Agent in same day
funds by deposit of such funds to the Euro-Agent's account maintained at the
Payment Office for such Alternative Currency. The Agent or the Euro-Agent will
give the Company prior notice of the due date of the principal of any A Advance
and of the due date and amount of any fees payable hereunder; PROVIDED that the
failure to give any such prior notice shall not limit the Company's or the
applicable Borrower's liability for such payment, but shall delay the due date
of such payment for purposes of SECTIONS 6.01(a) or (b), as applicable, by the
number of days after such due date that such notice is given. The Agent or
Euro-Agent, as applicable, will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or fees ratably (other
than amounts payable pursuant to SECTION 2.03, 2.08, 2.12 or 2.17) to the Banks
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank to such Bank for
the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement.
(b) Each Borrower hereby authorizes each Bank, if and to the extent
payment owed to such Bank by such Borrower is not made when due hereunder or
under the Note held by such Bank, to charge from time to time against any or all
of such Borrower's accounts with such Bank any amount so due. Each Bank agrees
promptly to notify the Company after any such charge, provided that the failure
to give such notice shall not affect the validity of such charge.
(c) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations
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of interest based on the Adjusted CD Rate, the Eurocurrency Rate or the Federal
Funds Rate and of fees shall be made by the Agent or Euro-Agent, as applicable,
and all computations of interest pursuant to SECTION 2.08 shall be made by a
Bank, 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 commitment fees are payable. Each
determination by the Agent or Euro-Agent (or, in the case of SECTION 2.08, by a
Bank) of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such cases be
included in the computation of payment of interest or commitment fee, as the
case may be; PROVIDED, HOWEVER, if such extension would cause payment of
interest on or principal of Eurocurrency Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent or Euro-Agent shall have received notice from a
Borrower prior to the date on which any payment is due from such Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the Agent
or Euro-Agent, as applicable, may assume that such Borrower has made such
payment in full to it on such date and it may, in reliance upon such assumption,
cause (but shall not be required to cause) to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent such Borrower shall not have so made such payment in full to the Agent or
Euro-Agent, as applicable, each Bank shall repay to the Agent or Euro-Agent, as
applicable, forthwith on demand such amount distributed to such Bank together
with interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Agent or Euro-
Agent, as applicable, at the Federal Funds Rate.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to SECTION 2.08, 2.12 or 2.17) in excess of its ratable share of
payments on account of the A Advances obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in the A Advances
made by them as shall be necessary to cause such purchasing Bank 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
Bank, such purchase from each Bank shall be rescinded and such Bank shall repay
to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. Each Borrower agrees that any Bank so purchasing a participation
from another
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Bank pursuant to this SECTION 2.15 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 Bank were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.16. CURRENCY EQUIVALENTS. For purposes of determining
compliance with the provisions of this ARTICLE II at any time, the equivalent in
Dollars in respect of any Advance denominated (or proposed to be denominated) in
an Alternative Currency shall be determined in accordance with SECTION 2.02(a),
SECTION 2.03(c)(i), SECTION 2.09, SECTION 2.10 or SECTION 2.13 by the Euro-
Agent, in consultation with the Company, immediately prior to the issuance by
the Company of the Notice of Borrowing requesting such Advances or any notice of
Conversion or continuation or Notice of Redenomination with respect to such
Advances. Any equivalent determined in accordance with SECTION 2.02(a), SECTION
2.03(c)(i), SECTION 2.09, SECTION 2.10, SECTION 2.13 or this SECTION 2.16 shall
be deemed to remain in effect at all times during (and until the last day of)
the applicable Interest Period in respect of the Advances comprising the
applicable Borrowing, notwithstanding any fluctuation in exchange rates
occurring prior to the last day of such Interest Period.
SECTION 2.17. TAXES. (a) Subject to SECTION 2.17(f), any and all
payments by each Borrower hereunder or under the Notes shall be made, in
accordance with SECTION 2.14, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING, in the case
of each Bank, the Agent and the Euro-Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank, the Agent or the Euro-Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "TAXES"). Subject to SECTION
2.17(f), if any Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Bank, the Agent or
the Euro-Agent, (i) the sum payable by such Borrower shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 2.17(a)) such Bank, the
Agent or the Euro-Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrowers jointly and severally agree to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or the
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Notes (hereinafter referred to as "OTHER TAXES"). The Agent and Euro-Agent may
demand payment of, and seek recourse on, any Other Taxes from any Borrower,
without any requirement that the Agent or the Euro-Agent allocate the
reimbursement obligation for such Other Taxes among the Borrowers.
(c) Each Borrower will indemnify each Bank, the Agent and the Euro-
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this SECTION 2.17) paid by such Bank, the Agent or the Euro-Agent
(as the case may be) and any liability (including penalties, interest and
expenses reasonably incurred) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Bank, the Agent
or the Euro-Agent (as the case may be) makes written demand therefor.
(d) The Agent and Euro-Agent may, from time to time, request that the
Company furnish (and the Company shall, promptly following any such request,
furnish) to the Agent and the Euro-Agent the originals or certified copies of
receipts evidencing the payment of Taxes by and on behalf of the Borrowers or,
if no Taxes are payable in respect of any payment hereunder or under the Notes,
a certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Agent, in either case stating that such payment is exempt from
or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrowers contained in
this SECTION 2.17 shall survive the payment in full of principal and interest
hereunder and under the Notes.
(f) On or prior to the Restatement Date (or, in the case of any
assignee party to an Assignment and Acceptance or any new Bank added pursuant to
an Assumption and Acceptance, on the effective date of its becoming a "Bank"
hereunder), each Bank organized under the laws of a jurisdiction outside the
United States shall provide the Agent with the forms prescribed by the Internal
Revenue Service of the United States certifying such Bank's exemption from
United States withholding taxes with respect to all payments to be made to such
Bank hereunder and under any of the Notes, and each such Bank shall thereafter
provide the Agent with such supplements and amendments thereto and such
additional forms as may from time to time be required by applicable law. If a
Bank that is organized under the laws of a jurisdiction outside the United
States shall fail to deliver, or improperly delivers, the forms described in
this SECTION 2.17(f), SECTION 2.17(a) shall not apply with respect to any
payments made to such Bank under this Agreement during the period that such
failure or deficiency shall continue, and the Borrowers, the Agent or the Euro-
Agent shall be permitted to withhold United States federal, state and local
income taxes from any payments made under this Agreement at the applicable
statutory rate.
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(g) If any Bank determines, in its sole discretion, that it has
actually and finally realized, by reason of a refund, deduction or credit of any
Taxes or Other Taxes paid or reimbursed by a Borrower pursuant to this SECTION
2.17 in respect of payments under the Credit Agreement or the Notes, a current
monetary benefit that it would otherwise not have obtained but for such refund,
deduction or credit, and that would result in the total payments under this
SECTION 2.17 exceeding the amount needed to make such Bank whole, such Bank
shall pay to such Borrower, with reasonable promptness following the date on
which it actually realizes such benefit, an amount equal to the lesser of the
amount of such benefit or the amount of such excess, in each case net of all
reasonable out-of-pocket expenses in securing such refund, deduction or credit.
SECTION 2.18. SUBSTITUTION OF BANKS. In the event that (x) any one
or more Banks, pursuant to SECTION 2.12 hereof, incurs any increased costs,
receives a reduced payment or is required to make any payment for which any such
Bank demands compensation pursuant to such Section, or makes a claim for
indemnity or compensation under SECTION 2.17 hereof with respect to a payment
when no other Bank makes a claim for indemnity or compensation under SECTION
2.17 with respect to such payment, in any such case which compensation or
indemnity increases the effective lending rate of such Bank with respect to its
share of the A Advances in excess of the effective lending rate of the other
Banks, and such Bank has not mitigated such increased costs, reduced payment or
additional payment within 30 days after receipt by such Bank from the Company of
a written notice that such Bank's effective lending rate has so exceeded the
effective lending rate of the other Banks, (y) any one or more Banks have
determined pursuant to SECTION 2.09(d) or 2.13(a) hereof that it may not make or
maintain all or certain of its Eurocurrency Advances at such time (and the other
Banks shall continue to be able to make or maintain their corresponding
Eurocurrency Advances at such time) and the inability of such Bank to make or
maintain such Eurocurrency Advances continues for 30 or more days after the
receipt by such Bank from the Company of written notice of such inability and
that the Company's request that such Bank alleviate such inability, or (z) any
Bank shall decline (or be deemed to have declined) to extend its Commitment
hereunder after a request for extension of Commitments pursuant to SECTION 2.19
and Banks holding Commitments equalling or exceeding 51% of the Total Commitment
have agreed to extend their Commitments pursuant to such request, then and in
any such event, the Company may substitute for such Bank an existing Bank, or
another financial institution which is acceptable to the Agent, to assume the
Commitment of such Bank and to purchase the A Note of such Bank hereunder,
without recourse to or warranty (other than as to unencumbered ownership) by, or
expense to, such Bank for a purchase price equal to the outstanding principal
amount of the A Advances then payable to such Bank plus any accrued but unpaid
interest and accrued but unpaid fees with respect thereto. Such purchase shall
be effected by execution and delivery by such Bank and its replacement of an
Assignment and Acceptance, and shall otherwise be made in the manner described
in SECTION 9.08. Upon such purchase, such Bank shall no longer be a party
hereto or have any rights or benefits hereunder (except for rights or benefits
that such Bank would retain hereunder upon termination of this
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Agreement) and the replacement Bank shall succeed to the rights and benefits,
and shall assume the obligations, of such Bank hereunder and under such A Note.
SECTION 2.19 EXTENSION OF COMMITMENTS. (a) One time during each
period from the date that is 90 days prior to each Anniversary Date to the date
that is 30 days prior to each such Anniversary Date, the Borrowers may, by
written notice (an "EXTENSION REQUEST") given to the Agent, request that the
Stated Termination Date be extended. Each such Extension Request shall
contemplate an extension of the Stated Termination Date to a date that is one
year after the Stated Termination Date then in effect.
(b) The Agent shall promptly advise each Bank of its receipt of any
Extension Request. Each Bank may, in its sole discretion, consent to a
requested extension by giving written notice thereof to the Agent by not later
than the date (the "EXTENSION CONFIRMATION DATE") that is 15 days after the date
of the Extension Request, which consent shall be irrevocable when given.
Failure on the part of any Bank to respond to an Extension Request by the
applicable Extension Confirmation Date shall be deemed to be a denial of such
request by such Bank. If all of the Banks shall consent in writing to the
requested extension, such request shall be granted with respect to each
consenting Bank. Promptly following the opening of business on the first
Business Day following the applicable Extension Confirmation Date, the Agent
shall notify the Company in writing as to whether the requested extension has
been granted (such written notice being an "EXTENSION CONFIRMATION NOTICE") and,
if granted, such extension shall become effective upon the issuance of such
Extension Confirmation Notice. The Agent shall promptly thereafter provide a
copy of such Extension Confirmation Notice to each Bank. If such extension is
not granted, the Agent shall give the Company notice of the identity of any non-
consenting Banks. If the Company replaces one or more non-consenting Banks
pursuant to the provisions of SECTION 2.18, and any such replacement Bank
becomes a Bank on or before the earlier of (i) 30 days after the Extension
Confirmation Date and (b) 5 days before the applicable Anniversary Date, and
consents to the Extension Request at the time it becomes a Bank, such consent
shall be effective retroactively as of the Extension Confirmation Date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES. The
obligation of each Bank to make its initial Advance on the occasion of the
initial Borrowing by each Borrower (including each Borrowing Subsidiary) on or
after the Restatement Date is subject to the conditions precedent that (i) all
commitment, facility, agency and administrative fees provided for under the
terms of this Agreement, accrued to the date of such initial Advance, shall have
been paid by the Company and (ii) the Agent shall have received on or before the
day of such initial Borrowing the following, each dated such day, or dated as of
the
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Restatement Date in the case of (1) the items specified in (c)(i), (e), and
(f)(i), and (2) with respect to the Company, the items specified in items (a),
(d)(i) and (g), in form and substance satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Bank:
(a) The A Notes of such Borrower payable to the order of the
Banks, respectively.
(b) For the initial Borrowing by each Borrowing Subsidiary, an
Election to Participate executed by such Borrowing Subsidiary and by
the Company.
(c) Certified copies of (i) for the initial Borrowing by the
Company, the resolutions of the Board of Directors of the Company
approving this Agreement and the Notes of the Company; (ii) for the
initial Borrowing by each Borrowing Subsidiary, the resolutions or
other authorizing action of the Board of Directors or other governing
body of such Borrowing Subsidiary approving its Election to
Participate, this Agreement and the Notes of such Borrowing
Subsidiary, and the resolutions of the Board of Directors of the
Company approving this Agreement and the addition of a Borrowing
Subsidiary pursuant to the terms of this Agreement; and (iii) for the
initial Borrowing by each Borrower, all documents evidencing other
necessary corporate or other authorizing action and governmental
approvals, if any, with respect to this Agreement and the Notes of
such Borrower.
(d) Signed copies of (i) a certificate of the Secretary or an
Assistant Secretary or other appropriate officer or representative of
such Borrower certifying the names and true signatures of the officers
or other representatives of such Borrower authorized to sign this
Agreement (if the Borrower is the Company), such Borrower's Election
to Participate (if the Borrower is a Borrowing Subsidiary) and the
Notes of such Borrower and the other documents or certificates to be
delivered by such Borrower pursuant to this Agreement and (ii) for the
initial Borrowing by each Borrower other than the Company, a
certificate of the Secretary or an Assistant Secretary or other
appropriate officer of the Company certifying the names and true
signatures of the officers of the Company authorized to sign this
Agreement and such Borrower's Election to Participate. The Agent may
conclusively rely on each such certificate of such Borrower or of the
Company until the Agent shall receive a further certificate of the
Secretary or an Assistant Secretary or other representative of such
Borrower or of the Company, as the case may be, cancelling or amending
the prior certificate of such Borrower or of the Company, as the case
may be, and submitting the signatures of the officers or other
representatives named in such further certificate.
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(e) A certificate executed by the Treasurer of the Company on behalf
of the Company certifying that as of the Restatement Date, since December
31, 1995 there has been no material adverse change in the business,
financial condition, operations, properties or performance of the Company
and its Subsidiaries, taken as a whole, or in the ability of the Company to
perform its obligations under this Agreement or any Note.
(f) Favorable opinions of (i) for the initial Borrowing by the
Company, the General Counsel of the Company in substantially the form
of EXHIBIT E hereto and special counsel for the Company in
substantially the form of EXHIBIT F hereto, (ii) for the initial
Borrowing by each Borrowing Subsidiary, counsel for such Borrowing
Subsidiary in substantially the form of EXHIBIT G hereto, the General
Counsel of the Company in substantially the form of EXHIBIT H hereto
and special counsel for the Company in substantially the form of
EXHIBIT I hereto, and (iii) for any initial Borrowing, counsel for the
Company or the applicable Borrowing Subsidiary as to such other
matters as any Bank through the Agent may reasonably request. Such
counsel shall be satisfactory to the Agent.
(g) A favorable opinion of Sidley & Austin, counsel for the Agent
and the Euro-Agent, in substantially the form of EXHIBIT J hereto.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH A BORROWING. The
obligation of each Bank to make an A Advance on the occasion of each A Borrowing
(including the initial A Borrowing) by each Borrower (including each Borrowing
Subsidiary) shall be subject to the further conditions precedent that on the
date of such A Borrowing (a) the following statements shall be true and the
Agent shall have received for the account of such Bank a certificate signed by a
duly authorized officer of the Company as follows:
(i) The representations and warranties contained in subsections (a),
(b), (c) and (d) of SECTION 4.01 and, if such A Borrowing is by a Borrowing
Subsidiary, SECTION 4.02 (as to such Borrowing Subsidiary) are correct in
all material respects 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;
and (b) if the Agent shall have reasonably requested prior to the delivery of
the Notice of Borrowing for such A Borrowing, approvals, opinions or, pursuant
to SECTION 5.01(b)(xiii), documents for the purpose of verifying compliance by
the Company or any Borrower with the
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terms of this Agreement or with applicable law, the Agent shall have received
such approvals, opinions or documents.
SECTION 3.03. CONDITIONS PRECEDENT TO CERTAIN BORROWINGS. The
obligation of each Bank to make that portion of an A Advance on the occasion of
any A Borrowing which would increase the aggregate outstanding amount in any
currency of A Advances owing to such Bank from all Borrowers over the aggregate
amount of A Advances owing to such Bank in such currency outstanding immediately
prior to the making of such A Advance shall be subject to the further conditions
precedent that on the date of such A Borrowing (i) the representations and
warranties contained in subsections (e), (f), (g), (h), (i), (k), (l), (m) and
(n) of SECTION 4.01 are correct in all material respects 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; (ii) no event has occurred and is continuing, or would result from such A
Borrowing or from the application of the proceeds therefrom, which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both; and (iii) the certificate furnished pursuant to SECTION
3.02 shall include statements to the effect of clauses (i) and (ii) above.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH B BORROWING. The
obligation of each Bank which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) at or before
the applicable time and date before the date of such B Borrowing set forth in
SECTION 2.03(b)(i) or 2.03(c)(i), as applicable, the Agent shall have received
the Notice of B Borrowing with respect thereto, (ii) at or before the applicable
time and date before the date of such B Borrowing set forth in SECTION
2.03(b)(iii) or 2.03(c)(iii), as applicable, the Agent shall have received the
written confirmatory notice of such B Borrowing to be given by the Company
pursuant to SECTION 2.03(b)(iii) or SECTION 2.03(c)(iii), as applicable, (iii)
on or before the date of such B Borrowing but prior to such B Borrowing, the
Agent shall have received a B Note signed by the applicable Borrower payable to
the order of such Bank for each of the one or more B Advances to be made by such
Bank as part of such B Borrowing, 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 (iv) on
the date of such B Borrowing the following statements shall be 5true (and each
of the giving of the applicable Notice of B Borrowing and the acceptance by such
Borrower of the proceeds of such B Borrowing shall constitute a representation
and warranty by the Company that on the date of such B Borrowing such statements
are true):
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(a) the representations and warranties contained in SECTION 4.01
(other than SUBSECTIONS (j) and (o) thereof) and, if such B Borrowing is by
a Borrowing Subsidiary, SECTION 4.02 (as to such Borrowing Subsidiary) are
correct in all material respects 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, and
(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 would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
ARTICLE IV
REPRESENTATION AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Banks and the Agent as follows:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and its Notes are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Company's restated certificate of incorporation or by-
laws or (ii) law or any contractual restriction binding on or affecting the
Company.
(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 Company of this
Agreement or the Notes, except any such approvals, notices, actions or
filings which have already been made, obtained or given.
(d) This Agreement is, and the Company's Notes when delivered
hereunder will be, legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
subject to any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and to
general principles of equity.
(e) The consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of December 31, 1995, and the related
statements of income, cash flows and shareholders' equity of the Company
and its Consolidated Subsidiaries for
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the fiscal year then ended, copies of which have been furnished to each
Bank, fairly present the financial condition of the Company and its
Consolidated Subsidiaries as at such date and the consolidated results of
the operations of the Company and its Consolidated Subsidiaries for the
period ended on such date, all in accordance with GAAP consistently
applied.
(f) There are no pending actions, suits or proceedings against the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official, in which there is (in the best
judgment of the Company) a reasonable possibility of an adverse decision
which would affect (i) the business, consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, to the extent that there is (in the best judgment of the
Company) a reasonable possibility that such decision would prevent the
Company from repaying its obligations in accordance with the terms of this
Agreement or, (ii) the legality, validity or enforceability of this
Agreement or any Note.
(g) United States Federal income tax returns of the Company and its
Subsidiaries have been examined and closed through the year ended December
31, 1990. The Company and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
Subsidiaries, except such taxes or assessments, if any, as are being
contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes are, in the opinion of the Company, adequate.
(h) Each of the Company's Significant Subsidiaries is a corporation
duly incorporated, validly existing and in good standing (or the equivalent
under applicable local law) under the laws of its jurisdiction of
incorporation, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except in each case where the failure to do so could not
reasonably be expected to affect (i) the business, consolidated financial
position or consolidated results of operations of the Company and its
Consolidated Subsidiaries to the extent that there is a reasonable
possibility that such failure would prevent any of the Borrowers from
repaying its obligations in accordance with the terms of this Agreement, or
(ii) the legality, validity or enforceability of this Agreement.
(i) The sum of the Insufficiencies of any and all Plans with respect
to which a Termination Event has occurred and is still in existence (or, in
the case of a Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event has occurred, the
liability related thereto) does not exceed $25,000,000.
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(j) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) with respect to each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the Agent,
was complete and accurate and fairly presented the funding status and
financial condition of such Plan as of the date of such Schedule B, and
since such date there has been no material adverse change in such funding
status or financial condition, considered in the aggregate, except for a
decline, if any, in the funded ratio of the Ecolab Pension Plan primarily
attributable to a decrease in the interest rate which must be used to
measure pension plan liabilities.
(k) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the date
of such notification), is greater than $25,000,000.
(l) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA Affiliates to
all Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed to
such Multiemployer Plans for the respective plan years most recently ended
by an amount exceeding $7,500,000 per annum.
(m) The Company and its Subsidiaries are in compliance in all
material respects with all environmental and hazardous waste laws, rules
and regulations, and neither the Company nor any of its Subsidiaries has
been cited as being in violation of such law, rule or regulation by any
Federal, state or local governmental agency or other authority responsible
for or having jurisdiction over hazardous waste disposal, where the failure
to so comply or being so cited would (in the best judgment of the Company)
affect the business, consolidated financial position or consolidated
results of operations of the Company and its Subsidiaries, to the extent
that there is (in the best judgment of the Company) a reasonable
possibility that such non-compliance or being so cited or listed would
prevent the Company from repaying its obligations under this Agreement in
accordance with the terms hereof.
(n) There are no pending or, to the knowledge of the Company,
threatened actions, suits or proceedings against the Company or any of its
Subsidiaries before any court or arbitrator or other governmental agency or
authority arising out of or relating to hazardous waste disposal or
environmental compliance or asserting a claim for damages based upon the
use or other application of any products of the Company or any of its
Subsidiaries, in which there is (in the best judgment of the Company) a
reasonable possibility of an adverse decision which would affect the
business,
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consolidated financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries to the extent that there is
(in the best judgment of the Company) a reasonable possibility that such
decision would prevent the Company from repaying its obligations under this
Agreement in accordance with the terms hereof.
(o) As of the Restatement Date, since December 31, 1995 there has
been no material adverse change in the business, financial condition,
operations, properties or performance of the Company and its Subsidiaries,
taken as a whole, or in the ability of the Company to perform its
obligations under this Agreement or any Note.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF BORROWING
SUBSIDIARIES. Each Borrowing Subsidiary shall be deemed by the execution and
delivery of its Election to Participate to have represented and warranted as of
the date thereof that:
(a) It is duly organized, validly existing and in good standing (or
its equivalent under local law) under the laws of the jurisdiction of its
organization.
(b) The execution and delivery by it of its Election to Participate
and in its Notes and the performance by it of this Agreement and its Notes
are within its powers, have been duly authorized by all necessary action,
and do not contravene (i) its constituent documents or (ii) law or any
contractual restriction binding on or affecting such Borrowing Subsidiary.
(c) This Agreement constitutes a legal, valid and binding agreement
of such Borrowing Subsidiary, and its Notes, when executed and delivered in
accordance with this Agreement, will constitute legal, valid and binding
obligations of such Borrowing Subsidiary, enforceable against such
Borrowing Subsidiary in accordance with their respective terms, subject to
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and to general
principles of equity.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Note shall
remain unpaid or any Bank shall have any Commitment hereunder, the Company will,
unless the Majority Banks shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, (i) paying
before the same become delinquent all taxes, assessments and
governmental charges imposed
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upon it or upon its property except to the extent contested in good faith,
and (ii) required capitalization of each Borrowing Subsidiary, except in
each case where the failure to do so could not reasonably be expected to
affect (i) the business, consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries to
the extent that there is a reasonable possibility that such failure would
prevent any of the Borrowers from repaying its obligations in accordance
with the terms of this Agreement, or (ii) the legality, validity or
enforceability of this Agreement.
(b) REPORTING REQUIREMENTS. Furnish to the Banks:
(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 Company, the consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such
quarter and the consolidated statement of income and
shareholders' equity and the consolidated statement of cash flows
of the Company and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, certified by a designated financial
officer of the Company;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, a copy of the
annual report for such year for the Company and its Consolidated
Subsidiaries, containing financial statements for such year
certified in a manner acceptable to the Majority Banks by Coopers
& Xxxxxxx or other independent public accountants acceptable to
the Majority Banks;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above, a
certificate of a designated financial officer of the Company (A)
setting forth in reasonable detail the calculations required to
establish whether the Company was in compliance with the
requirements of SECTIONS 5.02(a), and 5.03 on the date of such
financial statements and (B) stating whether there exists on the
date of such certificate any Event of Default or condition or
event which with notice or lapse of time or both would become an
Event of Default and, if any Event of Default or any such
condition or event then exists, setting forth the details thereof
and the action which the Company is taking with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports which the Company sends generally to its security
holders, and copies of all periodic reports (including reports on
Form 8-K) and all
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registration statements which the Company or any Subsidiary files with
the Securities and Exchange Commission (other than registration
statements on Form S-8 or Form 11-K, or registration statements on
Form S-3 relating solely to the registration of securities for resale
by the holders thereof);
(v) as soon as possible and, in any event, within 14
Business Days after the Company (in its best judgment) has made a
determination pursuant to any notice or claim received by the
Company or any of its Subsidiaries to the effect that the Company
or any of its Subsidiaries is a potentially responsible party for
response costs incurred or to be incurred at any facility, other
than a facility owned or operated by the Company or any of its
Subsidiaries under the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") or any state
equivalent, that the potential liability (taking into account the
probability that other Persons will provide contributions or
otherwise share in the response costs to be incurred at the
facility) of the Company or any of its Subsidiaries could
reasonably be expected to exceed $25,000,000, a copy of such
notice or claim and a statement of an officer of the Company
explaining the Company's understanding of the basis for such
notice or claim;
(vi) as soon as possible and, in any event, within 14
Business Days from the date the Company (in its best judgment)
makes a determination, pursuant to any notice given with respect
to property owned or operated by the Company or any of its
Subsidiaries, to Federal or state environmental agencies under
any applicable environmental requirement of law, reporting the
release of a hazardous or toxic waste, substance, pollutant or
contaminant, including petroleum-based substances or wastes, into
the environment, that the potential liability (taking into
account the probability that other Persons will provide
contributions or otherwise share in the response costs to be
incurred at the facility) of the Company or any of its
Subsidiaries could reasonably be expected to exceed $25,000,000,
a copy of such notice and a statement of an officer of the
Company explaining the Company's understanding of the basis for
such notice;
(vii) as soon as possible and, in any event, within 14
Business Days after the Company acquires actual knowledge that
the operations or facilities of the Company or any of its
Subsidiaries has become the subject of any state or federal
investigation evaluating whether any remedial action pursuant to
the National Contingency Plan, or any state equivalent, is needed
to respond to a release or threatened release of a
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hazardous or toxic waste, substance, pollutant or contaminant,
including petroleum-based substances or wastes, into the environment,
if it could reasonably be expected that the cost to the Company and
its Subsidiaries of the anticipated remedial action would exceed
$25,000,000 a statement by an officer of the Company informing the
Banks of such investigation and explaining the Company's understanding
of the basis for such investigation;
(viii) as soon as possible and, in any event, within 14
Business Days after the Company acquires actual knowledge that
any of the operations or facilities of the Company or any of its
Subsidiaries becomes listed or is proposed for listing on the
National Priorities List in accordance with 40 C.F.R. Part 300,
Appendix B, or any state equivalent, and it could reasonably be
expected that the cost to the Company and its Subsidiaries of
response costs related thereto would equal or exceed $12,500,000,
or receives any written notice or claim to the effect that it is
a potentially responsible party for response costs involving an
aggregate cost to the Company or its Subsidiaries of $25,000,000
or more incurred or to be incurred under CERCLA or any state
equivalent, at any facility owned or operated by the Company or
any of its Subsidiaries, a statement by an officer of the Company
so informing the Banks and explaining the Company's understanding
of the basis for such listing or notice;
(ix) as soon as possible and in any event (A) within 45 days
after the Company or any of its ERISA Affiliates acquires actual
knowledge that any Termination Event described in clause (i) of
the definition of Termination Event with respect to any Plan has
occurred, and (B) within 14 days after the Company or any of its
ERISA Affiliates acquires actual knowledge that any other
Termination Event with respect to any Plan has occurred,
(PROVIDED, HOWEVER, that the statement referred to below would
not be required if (1) such Termination Event is described in
clause (ii) of the definition of Termination Event, unless the
occurrence of such Termination Event could reasonably be expected
to or does result in aggregate liability of the Company and all
ERISA Affiliates of the Company to any Multiple Employer Plan or
to the PBGC of more than $25,000,000, (2) such Termination Event
is described in clause (iii) of the definition of Termination
Event, unless such Termination Event is not a "standard
termination" as defined in Section 4041 of ERISA, or (3) it could
not reasonably be expected that the aggregate cost to the Company
and its Subsidiaries of any event set forth in clause (A) or (B)
of this SECTION
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5.01(b)(ix) and not otherwise excluded from the reporting requirements
of this Section would exceed $5,000,000) a statement of an officer of
the Company describing such Termination Event and the action, if any,
which the Company or any of its ERISA Affiliates proposes to take with
respect thereto;
(x) promptly and in any event within 5 Business Days after
receipt thereof by the Company or any of its ERISA Affiliates,
copies of each notice received by the Company or any such ERISA
Affiliate from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan;
(xi) promptly and in any event within 14 Business Days after
receipt thereof by the Company or any of its ERISA Affiliates
from the sponsor of a Multiemployer Plan, if the amount of
liability incurred or expected to be incurred pursuant to such
notice exceeds $10,000,000, a copy of each such notice received
by the Company or such ERISA Affiliate concerning (A) the
imposition of Withdrawal Liability by such Multiemployer Plan,
(B) the determination that such Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV
of ERISA, (C) the termination of such Multiemployer Plan within
the meaning of Title IV of ERISA, or (D) the amount of liability
incurred, or expected to be incurred, by the Company or any such
ERISA Affiliate, as the case may be, in connection with any event
described in clause (A), (B) or (C) above;
(xii) as soon as possible and, in any event, within 5
Business Days after the Company acquires actual knowledge that
either of its Credit Ratings has changed, written notice
informing the Agent of such change; and
(xiii) promptly, and in any event as soon as reasonably
practicable, such other information with respect to the condition
or operations, financial or otherwise, of the Company or any of
its Subsidiaries or ERISA Affiliates as any Bank through the
Agent may from time to time reasonably request, including,
without limitation, Schedule B (Actuarial Information) to the
annual reports (Form 5500 Series) filed with the Internal Revenue
Service for each Plan.
(c) CORPORATE EXISTENCE. Subject to SECTION 5.02(b), preserve and
keep, and will cause each of its Subsidiaries to preserve and keep, its
corporate existence, rights, franchises and licenses in full force and
effect, PROVIDED, HOWEVER, that the Company may terminate the corporate
existence of any Subsidiary, or permit the termination or
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abandonment of any Subsidiary, or permit the termination or abandonment of
any right, franchise or license if, in the good faith judgment of the
appropriate officer or officers of the Company, such termination or
abandonment is not materially disadvantageous to the Company and is not
materially disadvantageous to the Banks or the holders of the Notes.
(d) INSURANCE. Maintain, and cause each of its Subsidiaries to
maintain, insurance with sound and reputable insurers covering all such
properties and risks as are customarily insured by, and in amounts not less
than those customarily carried by, corporations engaged in similar
businesses and similarly situated.
(e) PROPERTIES. Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, in all material respects its
properties which are deemed by the Company or such Subsidiary to be
necessary or useful in the proper conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(f) BUSINESS. Without prohibiting the Company from making
acquisitions or divestitures permitted under SECTION 5.02(b), remain in the
same businesses, similar businesses or other manufacturing or service
businesses reasonably related thereto, taken as a whole, as are carried on
at the date of this Agreement.
(g) USE OF PROCEEDS. Use the proceeds of the Advances made under
this Agreement only for general corporate purposes, including, without
limitation, the repurchase of shares of capital stock of the Company (as
duly approved by the Company's board of directors from time to time), the
repayment of other indebtedness and acquisitions.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Note shall remain
unpaid or any Bank shall have any Commitment hereunder, the Company will not,
without the written consent of the Majority Banks:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Consolidated Subsidiaries to create or suffer to exist, any lien, security
interest or other charge or encumbrance ("LIEN") upon or with respect to
any of its properties (other than Margin Stock), whether now owned or
hereafter acquired, or assign, or permit any of its Consolidated
Subsidiaries to assign, any right to receive income, in each case to secure
any Debt of any Person or entity, other than (i) Liens securing Debt which
in the aggregate does not exceed $50,000,000 or (ii) Liens granted by any
Consolidated Subsidiary as security for any Debt owing to the Company or to
a Wholly-Owned Consolidated Subsidiary.
(b) CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Consolidate with or
merge with or into any other Person or sell, lease or otherwise transfer
all or a
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majority of its assets (other than Margin Stock) to any other Person or
permit any Significant Subsidiary to consolidate with, merge into or sell,
lease or otherwise transfer all or a majority of its assets to any Person
other than the Company or a Wholly-Owned Consolidated Subsidiary except:
(i) the Company may merge or consolidate with any other
corporation so long as the Company is the surviving corporation in
such transaction and immediately after consummation of such
transaction no event has occurred and is continuing 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;
(ii) the Company may merge into any corporation solely for
the purpose of redomiciling so long as the surviving corporation
in such transaction expressly assumes all of the obligations of
the Company under this Agreement, under its Notes and under the
letter agreement referred to in SECTION 2.04(b) and immediately
after consummation of such transaction no event has occurred and
is continuing which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both; and
(iii) any Significant Subsidiary may consolidate or merge with or
sell, lease or otherwise transfer all or more than a majority of its
assets to any other Person so long as immediately after consummation
of such transaction no event has occurred and is continuing 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) USE OF PROCEEDS FOR SECURITIES PURCHASES. Use any proceeds of
any Advance to acquire any security in any transaction which is subject to
Section 13(d), 13(g) or 14(d) of the Exchange Act except to the extent such
transaction complies with such Act and the rules and regulations
thereunder.
SECTION 5.03. FINANCIAL COVENANT. So long as any Note shall remain
unpaid or any Bank shall have any Commitment hereunder, the Company will not,
without the written consent of the Majority Banks, create or suffer to exist, or
permit any of its Consolidated Subsidiaries to create or suffer to exist, any
Debt, if, immediately after giving effect to such Debt and the receipt and
application of any proceeds thereof, the ratio of Total Debt to Capitalization
exceeds 0.55 to 1.00.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Note
when due; or
(b) Any Borrower shall fail to pay any fee under this Agreement
or any interest on any Note within ten days after the due date
thereof; or
(c) Any written representation or warranty made by any Borrower
herein or in connection with this Agreement shall prove to have been
incorrect in any material respect when made; provided that if any such
representation or warranty shall have been incorrect through
inadvertence or oversight, no Event of Default shall occur if such
representation or warranty shall be made correct within 30 days after
any Borrower shall have discovered the error; or
(d) The Company shall fail to perform or observe any of the
covenants contained in SECTION 5.02 (other than with respect to any
involuntary Lien for purposes of SECTION 5.02(a)) or SECTION 5.03
(with respect to a Total Debt to Capitalization ratio equal to or
greater than 0.60 to 1.00); or the Company shall fail to perform or
observe any other term, covenant (including SECTION 5.02(a) with
respect to any involuntary Lien and SECTION 5.03 with respect to a
Total Debt to Capitalization Ratio less than 0.60 to 1.00) or
agreement contained in this Agreement, other than in (a) or (b) above,
on its part to be performed or observed and such failure shall remain
unremedied for 30 days after written notice thereof shall have been
given to the Company by the Agent or any Bank; or
(e) The Company or any of its 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 $20,000,000 (or its equivalent in
any other currency) in the aggregate (but excluding Debt evidenced by
the Notes) of the Company 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
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such event or condition is to accelerate 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 or a
prepayment required due to a voluntary sale or condemnation of collateral
securing such Debt, or in the case of Debt which was Debt of an entity
acquired by the Company or any of its Subsidiaries and which Debt was
assumed by the Company or such Subsidiary as part of such acquisition, a
prepayment required due to a sale or other transfer or condemnation of
assets), prior to the stated maturity thereof; or
(f) The Company 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 Company 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, or other similar
official for it or for any substantial part of its property, and in
the event of any such proceeding instituted against the Company or any
of its Significant Subsidiaries, such proceeding shall remain
undismissed or unstayed for a period of 60 days or shall result in the
entry of an order for relief, the appointment of a trustee or
receiver, or other result adverse to the Company or such Significant
Subsidiary; or the Company or any of its Significant Subsidiaries
shall take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
(g) Any judgment or order for the payment of money (to the
extent not covered by insurance under which the insurer has admitted
its liability in writing) in excess of $10,000,000 (or its equivalent
in any other currency) shall be rendered against the Company or any of
its Subsidiaries and (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order and there shall
be any time at which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect or
(ii) enforcement proceedings shall not have been commenced by any
creditor upon such judgment or order and there shall be any period of
10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Company, declare the obligation
of each Bank to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the
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request, or may with the consent, of the Majority Banks, by notice to the
Company, 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 Company; PROVIDED, HOWEVER, that in
the event of an Event of Default described in SECTION 6.01(f), (A) the
obligation of each Bank 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 Company.
ARTICLE VII
THE AGENT AND THE EURO-AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Bank hereby appoints
and authorizes each of the Agent and the Euro-Agent to take such action as agent
on its behalf and to exercise powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), neither the Agent nor the Euro-Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks and all holders of Notes; PROVIDED, HOWEVER, that neither
the Agent nor the Euro-Agent shall be required to take any action which exposes
the Agent or the Euro-Agent to personal liability or which is contrary to this
Agreement or applicable law. Each of the Agent and the Euro-Agent agrees to
give to each Bank prompt notice of each written notice given to it by the
Company pursuant to the terms of this Agreement.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent, the Euro-
Agent, or any Affiliate of either of them, nor any of their respective
Directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, each of the Agent and the Euro-
Agent: (i) may treat the Bank that made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts an Assignment and
Acceptance entered into by such Bank, as assignor, and an Eligible Assignee, as
assignee, as provided in SECTION 9.08; (ii) may consult with legal counsel
(including counsel for any of the Borrowers), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or representation to
any Bank and shall not be responsible to any Bank for any statements, warranties
or representations (whether
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written or oral) made in or in connection with this Agreement; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on the part of any
of the Borrowers or to inspect the property (including the books and records) of
any of the Borrowers; (v) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. CITIBANK AND AFFILIATES. With respect to its
Commitment the Advances made by it and the notes issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Company, any of its Subsidiaries (including, without
limitation, any Borrowing Subsidiary) and any Person who may do business with or
own securities of the Company or any of its Subsidiaries all as if Citibank were
not the Agent and Citibank International Plc were not the Euro-Agent and without
any duty to account therefor to the Banks.
SECTION 7.04. BANK CREDIT DECISION. Each Bank acknowledges that it
has, independently and without reliance upon the Agent, the Euro-Agent or any
other Bank and based on the financial statements referred to in SECTION 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent,
the Euro-Agent or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Banks agree to indemnify the
Agent and the Euro-Agent (to the extent not reimbursed by the Borrowers),
ratably according to the respective principal accounts of the A Notes then held
by each of them (or if no A Notes are at the time outstanding or if any A Notes
are held by Persons which are not Banks, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent or the Euro-Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Agent or the Euro-Agent under this Agreement, PROVIDED that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's or the Euro-Agent's gross negligence or wilful
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misconduct. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent or the Euro-Agent, as applicable, promptly on demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent and the
Euro-Agent are not reimbursed for such expenses by the Borrowers.
SECTION 7.06. SUCCESSOR AGENTS. Either of the Agents may resign at
any time by giving written notice thereof to the Banks and the Company and may
be removed at any time with or without cause by the Majority Banks. Upon any
such resignation or removal, the Majority Banks shall have the right to appoint
one of the Banks as the successor Agent and such Bank or an affiliate of such
Bank as the successor Euro-Agent. If no successor Agent or Euro-Agent, as
applicable, shall have been so appointed by the Majority Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent's or retiring
Euro-Agent's giving of notice of resignation or the Majority Banks' removal of
the retiring Agent or retiring Euro-Agent, then the retiring Agent or retiring
Euro-Agent may, on behalf of the Banks, appoint one of the Banks (or an
affiliate of one of the Banks, in the case of a successor Euro-Agent) as its
successor. If none of the Banks will accept such an appointment, the retiring
Agent or Euro-Agent, as applicable, may, on behalf of the Banks, appoint a
successor Agent or Euro-Agent, as applicable, which, in the case of a successor
Agent, shall be a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus of
at least $250,000,000, and in the case of a successor Euro-Agent, shall be a
commercial bank organized under the laws of any country which is a member of the
OECD, or a political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000 or the local currency equivalent
thereof, PROVIDED that such bank is located in, or acting through a branch or
agency located in, London, England. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, or as Euro-Agent hereunder by a successor
Euro-Agent, such successor shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent or the retiring
Euro-Agent, as applicable, and the retiring Agent or the retiring Euro-Agent, as
applicable, shall be discharged from its duties and obligations under this
Agreement. The successor Agent or the successor Euro-Agent, as applicable,
shall immediately notify the Company of such appointment. After any retiring
Agent's or retiring Euro-Agent's resignation or removal hereunder as Agent or
Euro-Agent, as applicable, the provisions of this ARTICLE VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
or Euro-Agent, as applicable, under this Agreement.
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ARTICLE VIII
GUARANTY
SECTION 8.01. THE GUARANTY. The Company hereby unconditionally and
irrevocably guarantees the due and punctual payment (whether at stated maturity,
upon acceleration or otherwise) of the principal of and interest on each Note
issued by any Borrowing Subsidiary pursuant to this Agreement, and the due and
punctual payment of all other amounts payable by any Borrowing Subsidiary under
this Agreement. Upon failure by any Borrowing Subsidiary to pay punctually any
such amount, the Company shall forthwith on demand pay the amount not so paid in
the currency, at the place, in the manner and with the effect otherwise
specified in ARTICLE II of this Agreement.
SECTION 8.02. GUARANTY UNCONDITIONAL. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver
or release in respect of any obligation of any Borrowing
Subsidiary under this Agreement or any Note or the exchange,
release or non-perfection of any collateral security therefor;
(ii) any modification or amendment of or supplement to this
Agreement or any Note:
(iii) any change in the corporate existence, structure or
ownership of any Borrowing Subsidiary, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
any Borrowing Subsidiary or its assets;
(iv) the existence of any claim, set-off or other rights
which the Company may have at any time against any Borrowing
Subsidiary, the Agent, the Euro-Agent, any Bank or any other
Person, whether in connection herewith or any unrelated
transactions, PROVIDED that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(v) any invalidity or unenforceability relating to or
against any Borrowing Subsidiary for any reason of any provision
or all of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment
by any Borrowing Subsidiary of the principal of or interest on
any Note or any other amount payable by it under this Agreement;
or
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(vi) any other act or omission to act or delay of any kind
by any Borrowing Subsidiary, the Agent, the Euro-Agent, any Bank
or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the Company's obligations
hereunder.
SECTION 8.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the principal of and interest on the Notes and all other
amounts payable by the Company and each Borrowing Subsidiary under this
Agreement shall have been paid in full and shall survive the Termination Date.
If at any time any payment of the principal of or interest on any Note or any
other amount payable by any Borrowing Subsidiary under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrowing Subsidiary or otherwise, the
Company's obligations hereunder with respect to such payment shall be reinstated
at such time as though such payment had been due but not made at such time.
SECTION 8.04. WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any right be exhausted or
any action be taken by the Agent, the Euro-Agent, any Bank or any other Person
against any Borrowing Subsidiary or any other Person or any collateral security.
SECTION 8.05. SUBROGATION. Upon making any payment hereunder, the
Company shall be subrogated to the rights of the Banks against any such
Borrowing Subsidiary with respect to such payment; PROVIDED that the Company
shall not enforce any right or demand or receive any payment by way of
subrogation until all amounts of principal of and interest on the Notes of such
Borrowing Subsidiary and all other amounts payable by such Borrowing Subsidiary
under this Agreement have been paid in full.
SECTION 8.06. STAY OF ACCELERATION. In the event that acceleration
of the time for payment of any amount payable by any Borrowing Subsidiary under
this Agreement or any of its Notes is stayed upon the insolvency, bankruptcy or
reorganization of such Borrowing Subsidiary, all such amounts otherwise subject
to acceleration under the terms of this Agreement shall nonetheless be payable
by the Company hereunder forthwith on demand by the Agent for the account of the
Banks.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by any
Borrower therefrom,
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shall in any event be effective unless the same shall be in writing and signed
by the Majority Banks, 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 (a) no amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (i) waive any of the
conditions specified in SECTION 3.01, 3.02, 3.03 (if and to the extent that the
A Borrowing which is the subject of such waiver would involve an increase in the
aggregate outstanding amount of A Advances over the aggregate amount of A
Advances outstanding immediately prior to such A Borrowing) or 3.04; PROVIDED
that the conditions set forth in SECTIONS 3.04(iii) and 3.04(iv) with respect
to any B Borrowing may be waived by the Banks making B Advances as part of such
B Borrowing; (ii) increase the Commitments of the Banks (other than pursuant to
the terms of SECTION 2.05(b)) or subject the Banks to any additional
obligations, (iii) reduce the principal of, or interest on, the A Notes or any
fees or other amounts payable hereunder, (iv) postpone any date fixed for any
payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (v) release the Company's guaranty obligations
pursuant to ARTICLE VIII, (vi) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Notes which shall be required for
the Banks or any of the Banks to take any action hereunder or (vii) amend this
SECTION 9.01; (b) after a Change of Control has occurred, no amendment, waiver
or consent shall be effective with respect to SECTION 5.03 unless the same shall
be in writing and signed by Banks holding at least 65% of the then aggregate
unpaid principal amount of the A Notes held by Banks, or, if no such principal
amount is then outstanding, Banks having at least 65% of the Commitments; and
(c) no amendment, waiver or consent shall, unless in writing and signed by the
Agent and/or the Euro-Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Agent and/or the Euro-Agent, as
applicable, under this Agreement.
SECTION 9.02. 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,
(i) if to the Company, at its address at Ecolab Center, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Treasurer, Telecopier No. 000-000-0000, with a
copy to the Company at the same address, Attention: General Counsel;
(ii) if to any Borrowing Subsidiary, at its address specified in its
Election to Participate;
(iii) if to any Bank, at its Domestic Lending Office specified
opposite its name on SCHEDULE I hereto or specified in the Assignment and
Acceptance or Assumption and Acceptance pursuant to which it became a party
hereto;
(iv) if to the Agent, at its address at Bank Loan Syndications, Xxx
Xxxxx Xxxxxx, 0xx Xxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxx,
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Telecopier No. 000-000-0000, with a copy to Citicorp Securities, Inc., 000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxx,
Telecopier No. 000-000-0000; and
(v) if to the Euro-Agent, at its address at Xxxxxxxxx Xxxxx, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX00 0XX, England, Attention: XXXXXX XXXXXXX,
Loans Agency, Telecopier No. 0000-000-0000, Telex No. 299831 CIBLA;
or, as to the Company, the Agent or the Euro-Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Company, the Agent and the Euro-Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, except that notices and communications to
the Agent or the Euro-Agent pursuant to ARTICLE II or VII shall not be effective
until received by the Agent or the Euro-Agent, as applicable.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Bank or the Agent or Euro-Agent to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS AND EXPENSES. (a) The Company agrees to pay on
demand all reasonable, out-of-pocket costs and expenses of the Agent and the
Euro-Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the notes and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent and the
Euro-Agent with respect thereto and with respect to advising the Agent and the
Euro-Agent as to rights and responsibilities under this Agreement, and all costs
and expenses, if any, of the Agent, the Euro-Agent and the Banks (including,
without limitation, reasonable counsel fees and expenses, which may be allocated
costs of counsel who are employees of any Bank) 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 9.04(a).
(b) If any payment of principal of any Adjusted CD Rate Advance or
Eurocurrency Advance is made other than on the last day of the Interest Period
for such Advance, as a result of acceleration of the maturity of the Notes
pursuant to SECTION 6.01 or for any other reason, including the purchase of a
participation pursuant to SECTION 2.05(c), the applicable Borrower shall, upon
demand by any Bank (with a copy of such demand to the
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Agent), pay to the Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment, including, without limitation, any
loss, cost or expense reasonably incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or maintain
such Advance. Such Bank's demand shall set forth the reasonable basis for
calculation of such loss, cost or expense.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making by the Majority
Banks of the request or the granting of the consent specified by SECTION 6.01 to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of SECTION 6.01, each Bank 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 Bank to or for
the credit or the account of the Company or the applicable Borrowing Subsidiary
against any and all of the obligations of the Company or the applicable
Borrowing Subsidiary now or hereafter existing under this Agreement and the Note
held by such Bank irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
SECTION 9.06. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "ORIGINAL CURRENCY") into another currency (the
"OTHER CURRENCY") the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Euro-Agent could purchase the
Original Currency with the Other Currency at London, England on the third
Business Day preceding that on which final judgment is given.
(b) The obligation of the applicable Borrower in respect of any sum
due in the Original Currency from it to any Bank or the Agent or Euro-Agent
hereunder or under the Note held by such Bank shall, notwithstanding any
judgment in any Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Bank or the Agent or Euro-Agent (as the
case may be) of any sum adjudged to be so due in such Other Currency such Bank
or the Agent or Euro-Agent (as the case may be) may in accordance with normal
banking procedures purchase the Original Currency with such Other Currency; if
the amount of the Original Currency so purchased is less than the sum originally
due to such Bank or the Agent or Euro-Agent (as the case may be) in the Original
Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Bank or the Agent or Euro-Agent (as the case
may be) against such loss, and
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if the amount of the Original Currency so purchased exceeds the sum originally
due to any Bank or the Agent or Euro-Agent (as the case may be) in the Original
Currency, such Bank or the Agent or Euro-Agent (as the case may be) agrees to
remit to such Borrower such excess.
SECTION 9.07. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Company and the Agent and Euro-Agent and
when the Agent shall have been notified by each Bank that such Bank has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrowers, the Agent, the Euro-Agent and each Bank and their respective
successors and assigns, except that the Borrowers shall not have the right to
assign their respective rights hereunder or any interest herein without the
prior written consent of the Banks.
SECTION 9.08. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Bank may,
upon obtaining the prior written consent of the Company (which consent shall not
be unreasonably withheld or delayed), 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 Advances
owing to it and the 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 of
the assigning Bank's rights and obligations so assigned, (ii) the amount of the
Commitment of the assigning Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) may be in the amount of such Bank's entire Commitment but otherwise
shall not be less than $15,000,000 and shall be an integral multiple of
$500,000, (iii) each such assignment shall be to an Eligible Assignee and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,000; and PROVIDED, FURTHER,
that, notwithstanding the foregoing, each Bank may, without the consent of the
Company and without the payment of the processing and recordation fee, assign to
one or more affiliates of such Bank 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). Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, which effective
date shall be at least two Business Days after the execution thereof, (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 Bank hereunder and (y) the Bank
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 Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto).
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(b) By executing and delivering an Assignment and Acceptance, the
Bank 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 Bank 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 Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Company or any
Borrowing Subsidiary or the performance or observance by the Company 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 such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes each of the Agent
and the Euro-Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent and the Euro-
Agent, as applicable, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in SECTION
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Banks and
the Commitment of, and principal amount of the Advances owing to, each Bank from
time to time (the "REGISTER"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Agent, the Euro-Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Bank 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 Bank and an assignee representing that it is an Eligible Assignee, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers.
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(e) Each Bank may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the
Advances owing to it and the Note or Notes held by it); PROVIDED, HOWEVER, that
(i) such Bank's obligations under this Agreement (including, without limitation,
its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such
Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Bank shall remain the holder of any
such Note for all purposes of this Agreement, (iv) the Borrowers, the Agent, the
Euro-Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement, and (v) any agreement between such Bank and any participant in
connection with such participating interest shall not restrict such Bank's right
to agree to any amendment or waiver of any provision of this Agreement, or any
consent to any departure by any Borrower therefrom, except (to the extent such
participant would be affected thereby) a reduction of the principal of, or
interest on, any Note or postponement of any date fixed for payment thereof or a
release of the Company's guaranty obligations pursuant to ARTICLE VIII.
(f) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this SECTION 9.08, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers furnished to such Bank by or on behalf of
the Borrowers; PROVIDED that, prior to any such disclosure of non-public
information, such Bank shall have obtained the Company's consent (which consent
shall not be unreasonably withheld or delayed) and, the assignee or participant
or proposed assignee or participant shall agree to preserve the confidentiality
of any confidential information relating to the Borrowers received by it from
such Bank.
(g) Notwithstanding any other provisions set forth in this Agreement,
any Bank at any time may assign, as collateral or otherwise, any of its rights
(including, without limitation, rights to payments of principal of and/or
interest on the Advances) under this Agreement to any Federal Reserve Bank
without notice to or consent of the Company, any Borrowing Subsidiary, any other
Bank, the Agent or the Euro-Agent.
SECTION 9.09. CONSENT TO JURISDICTION. (a) Each Borrowing
Subsidiary hereby irrevocably submits to the jurisdiction of any New York State
or Federal court 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
and hereby irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or in such Federal
court. Each Borrowing Subsidiary hereby irrevocably waives, to the fullest
extent that it may effectively do so, the defense of an inconvenient forum to
the maintenance of any such action or proceeding. Each Borrowing Subsidiary
hereby irrevocably appoints CT Corporation System (the "PROCESS AGENT"), with an
office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx
Xxxxxx, as its agent to receive on behalf of such Borrowing Subsidiary and its
property service of copies of the summons
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and complaint and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to such Borrowing Subsidiary in care of the Process Agent at the Process
Agent's above address with a copy to such Borrowing Subsidiary at its address
specified in its Election to Participate, and such Borrowing Subsidiary hereby
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf. As an alternative method of service, each Borrowing Subsidiary also
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to such Borrowing Subsidiary
at its address specified in its Election to Participate. Each Borrowing
Subsidiary 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.
(b) Nothing in this SECTION 9.09 shall affect the right of the Agent,
the Euro-Agent or any Bank to serve legal process in any other manner permitted
by law or affect the right of the Agent or any Bank to bring any action or
proceeding against any Borrowing Subsidiary or its property in the courts of any
other jurisdictions.
SECTION 9.10. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 9.11. 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.
SECTION 9.12. INDEMNIFICATION. The Company agrees to indemnify and
hold harmless the Agent, the Euro-Agent, each Bank and each of their affiliates
and their respective directors, officers, employees and agents (each, an
"INDEMNIFIED PARTY") from and against any and all claims, damages, liabilities
and expenses (including, without limitation, fees and disbursements of counsel)
which may be incurred by or asserted against any Indemnified Party in connection
with or arising out of any investigation, litigation or proceeding related to
the Notes, this Agreement, any of the transactions contemplated hereby, or the
use of the proceeds of the Borrowings by the Borrowers, whether or not such
Indemnified Party is a party thereto, PROVIDED, HOWEVER, that the Company shall
not be liable for any portion of such claims, damages, liabilities and expenses
of an Indemnified Party resulting from such Indemnified Party's gross negligence
or willful misconduct or for such claims and liabilities settled without the
consent of the Company. Each Bank agrees to give the Company prompt written
notice of any investigation, litigation or proceeding which may lead to a claim
for indemnification under this Section, PROVIDED that the failure to give such
notice shall not affect the validity or enforceability of the indemnification
hereunder.
SECTION 9.13. CONFIDENTIALITY. Each Bank hereby agrees that it will
use reasonable efforts to keep confidential any information from time to time
supplied to it by the
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Company under SECTION 5.01(b) or otherwise in connection with this Agreement,
which the Company designates in writing at the time of its delivery to the Bank
is to be treated confidentially; PROVIDED, HOWEVER, that nothing herein shall
affect the disclosure of any such information to: (i) the extent required by
statute, rule, regulation or judicial process; (ii) counsel for any Bank or the
Agent or the Euro-Agent or to their respective accountants; (iii) bank examiners
and auditors; (iv) the Agent, the Euro-Agent, any other Bank, or, subject to the
provisions of SECTION 9.08(f), any transferee or prospective transferee of any
Note; or (v) any other Person in connection with any litigation to which any one
or more of the Banks is a party; PROVIDED FURTHER, HOWEVER, that each Bank
hereby agrees that it will use reasonable efforts to promptly notify the Company
of any request for information under this subpart (v) or with respect to any
request for information not enumerated in this SECTION 9.13.
SECTION 9.14. NON-RELIANCE BY THE BANKS. Each Bank by its signature
to this Agreement represents and warrants that (i) it has not relied in the
extension of the credit contemplated by this Agreement, nor will it rely in the
maintenance thereof, upon any assets of the Company or its Subsidiaries
consisting of Margin Stock as collateral and (ii) after reviewing the financial
statements of the Company and its Subsidiaries referred to in SECTION 4.01(e),
such Bank has concluded therefrom that the consolidated cash flow of the Company
and its Subsidiaries is sufficient to support the credit extended to the Company
pursuant to this Agreement.
SECTION 9.15. NO INDIRECT SECURITY. Notwithstanding any Section or
provision of this Agreement to the contrary, nothing in this Agreement shall (i)
restrict or limit the right or ability of the Company or any of its Subsidiaries
to pledge, mortgage, sell, assign, or otherwise encumber or dispose of any
Margin Stock, or (ii) create an Event of Default arising out of or relating to
any such pledge, mortgage, sale, assignment or other encumbrance or disposition.
SECTION 9.16. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE
BORROWING SUBSIDIARIES, THE AGENT, THE EURO-AGENT AND THE BANKS IRREVOCABLY
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, AMONG ANY OF THE PARTIES HERETO ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY NOTE. ANY PARTY HERETO
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RESPECTIVE RIGHTS TO TRIAL BY JURY.
SECTION 9.17. EFFECTIVENESS OF AMENDMENT AND RESTATEMENT. The
amendment and restatement of this Agreement dated as of September 30, 1996,
shall be effective as of such date when, and only when, the Agent shall have
received counterparts of this Agreement (as so amended and restated) executed by
the Borrower and all of the Banks
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and a counterpart of the letter agreement dated as of August 23, 1996, referred
to in SECTION 2.04(b) executed by the Borrower.
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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.
ECOLAB INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent
By: /s/ Xxxxxxx Xxx
------------------------------
CITIBANK INTERNATIONAL PLC,
as Euro-Agent
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Vice President
SIGNATURE PAGE 1
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BANKS
COMMITMENT
$45,000,000 CITIBANK, N.A.
By /s/ Xxxxxxx Xxx
------------------------------
As Attorney-in-Fact
$36,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Title: Vice President
$24,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By /s/ Xxxxxxx Xxxxx Xxxxxxxx
------------------------------
Title: Assistant Vice President
By /s/ Xx. Xxxxxx X. Xxxxxxx
------------------------------
Title: Executive Vice President
$24,000,000 CREDIT SUISSE
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Title: Member of Senior Management
By /s/ Xxxxxxxx X. Xxxxxxxxxxx
------------------------------
Title: Associate
SIGNATURE PAGE 2
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$24,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxxxxx X. XxXxxxxx
------------------------------
Title: Authorized Agent
$24,000,000 NATIONSBANK, N.A.
By /s/ Xxxxxxx Xxxxx
------------------------------
Title: Sr. Vice President
$24,000,000 SOCIETE GENERALE
By /s/ Xxxxx Xxxxxx
------------------------------
Title: Assistant Vice President
By /s/ Xxxx Xxxxxxx
------------------------------
Title: CBM
$24,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxxxxxxx Xxxx
------------------------------
Title: Vice President
$225,000,000 Total of the Commitments
SIGNATURE PAGE 3
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