AMENDMENT NO. 2 to CREDIT AGREEMENT (364 Day Facility) Dated as of October 30, 2003
EXHIBIT (10)B(iii)
AMENDMENT NO. 2
to
CREDIT AGREEMENT (364 Day Facility)
Dated as of October 30, 2003
This AMENDMENT NO. 2 TO CREDIT AGREEMENT (“Amendment”), dated as of October 30, 2003, is entered into by and among Ecolab Inc., a Delaware corporation (the “Borrower”), the financial institutions party hereto (the “Banks”), and Citicorp USA, Inc. (“Citicorp”), as administrative agent (the “Agent”) for the Banks. Each capitalized term used herein and not defined herein shall have the meaning ascribed thereto in the below-defined “Credit Agreement”.
PRELIMINARY STATEMENT
The Borrower, the Banks and the Agent are parties to the Credit Agreement (364 Day Facility) dated as of December 7, 2001 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). The Borrower, the Banks and the Agent have agreed to amend the Credit Agreement pursuant to the terms of this Amendment.
SECTION 1. Amendments to the Credit Agreement. Effective as of the date hereof, subject to the satisfaction of the condition precedent set forth in Section 2 below, the Credit Agreement is hereby amended as follows:
1.1 The definition of “Stated Termination Date” in Section 1.01 is hereby amended by deleting “October 30, 2003” and substituting “October 28, 2004” therefor.
1.2 Clause (iii) of Section 9.02(a) is hereby amended and restated in its entirety as follows:
(iii) if to the Agent, at its address at Bank Loan Syndications, Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxxx, Telecopier No. 000-000-0000, with a copy to Citicorp Securities, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, Telecopier No. 000-000-0000;
1.3 Section 9.13 is hereby amended to insert the following sentence at the end thereof:
Notwithstanding anything to the contrary set forth herein, each party hereto (and each officer, director, employee, accountant, attorney, advisor, agent and representative of each such party) may disclose to any and all Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of the transactions evidenced hereby and all materials of any kind (including opinions and other tax analyses) that are provided to any of them relating to such U.S. tax treatment and U.S. tax
structure.
1.4 Schedule I is hereby deleted in its entirety and replaced with Schedule I hereto.
1.5 Schedule II is hereby deleted in its entirety and replaced with Schedule II hereto.
SECTION 2. Condition Precedent. This Amendment shall become effective and be deemed effective as of the date hereof (or if such items are not received until a later date, on such later date) upon the Agent’s receipt of duly executed originals of this Amendment from the Borrower and each Bank.
SECTION 3. Covenants, Representations and Warranties of the Borrower.
3.1 Upon the effectiveness of this Amendment, the Borrower hereby reaffirms all covenants, representations and warranties made by it in the Credit Agreement, as amended hereby, and agrees that all such covenants, representations and warranties shall be deemed to have been re-made as of the effective date of this Amendment.
3.2 The Borrower hereby represents and warrants that (i) this Amendment constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditor’s rights generally and by the effect of general principles of equity and (ii) upon the effectiveness of this Amendment, no Event of Default or Default shall exist with respect to the Borrower.
SECTION 4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to the Credit Agreement, as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby.
4.2 Except as specifically amended above, the Credit Agreement, the Notes and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party under the Credit Agreement, the Notes or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein.
2
SECTION 5. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
The remainder of this page is intentionally blank.
3
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.
|
|
|||
|
|
|
|
|
|
|
By: |
/s/ Xxxx X. Xxxxxxxxx |
|
|
|
|
Name: Xxxx X. Xxxxxxxxx |
|
|
|
|
Title: Vice President and Treasurer |
|
|
|
|
|
|
|
|
CITICORP USA, INC., as Administrative Agent |
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxxxx |
|
|
|
|
Name: Xxxxxxx X. Xxxxxxxx |
|
|
|
|
Title: Managing Director & Vice President |
|
|
|
Banks |
|||||||||
|
|
|
|
||||||||
|
|
CITICORP USA, INC. |
|||||||||
|
|
By: |
/s/ Xxxxxxx X. Xxxxxxxx |
|
|||||||
|
|
|
Name: Xxxxxxx X. Xxxxxxxx |
||||||||
|
|
|
Title: Managing Director & Vice President |
||||||||
|
|
|
|
||||||||
|
|
JPMORGAN CHASE BANK |
|||||||||
|
|
By: |
/s/ Xxxxxx X. Xxxxxx |
|
|||||||
|
|
|
Name: Xxxxxx X. Xxxxxx |
||||||||
|
|
|
Title: Vice President |
||||||||
|
|
|
|
||||||||
|
|
CREDIT SUISSE FIRST BOSTON |
|||||||||
|
|
Cayman Islands Branch |
|||||||||
|
|
By: |
/s/ Xxxx Xxxxxx |
|
|||||||
|
|
|
Name: Xxxx Xxxxxx |
||||||||
|
|
|
Title: Director |
||||||||
|
|
|
|
||||||||
|
|
By: |
/s/ Xxxxxx Xxxxx |
|
|||||||
|
|
|
Name: Xxxxxx Xxxxx |
||||||||
|
|
|
Title: Assistant Vice President |
||||||||
|
|
|
|
||||||||
|
|
BANK ONE, NA (Main Office Chicago) |
|||||||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||||||
|
|
|
Name: Xxxxx X. Xxxxxx |
||||||||
|
|
|
Title: Managing Director |
||||||||
|
|
|
|
||||||||
|
|
XXXXX FARGO BANK, |
|||||||||
|
|
NATIONAL ASSOCIATION |
|||||||||
|
|
By: |
/s/ Xxxxx X. Xxxxx |
|
|||||||
|
|
|
Name: Xxxxx X. Xxxxx |
||||||||
|
|
|
Title: Senior Vice President |
||||||||
|
|
|
|
||||||||
|
|
By: |
/s/ Xxxxxxx X. Xxxxxxx |
|
|||||||
|
|
|
Name: Xxxxxxx X. Xxxxxxx |
||||||||
|
|
|
Title: Vice President |
||||||||
|
|
|
|
||||||||
|
|
WACHOVIA BANK, |
|||||||||
|
|
NATIONAL ASSOCIATION |
|||||||||
|
|
By: |
/s/ Xxxxxx X. Xxxxxxx |
|
|||||||
|
|
|
Name: Xxxxxx X. Xxxxxxx |
||||||||
|
|
|
Title: Director |
||||||||
|
|
|
|
||||||||
|
|
BANK OF AMERICA, N.A. |
|||||||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||||||
|
|
|
Name: Xxxxx X. Xxxxxx |
||||||||
|
|
|
Title: Managing Director |
||||||||
|
|
|
|
||||||||
|
|
BARCLAYS BANK PLC |
|||||||||
|
|
By: |
/s/ Xxxxxxxx Xxxx |
|
|||||||
|
|
|
Name: Xxxxxxxx Xxxx |
||||||||
|
|
|
Title: Director |
||||||||
SCHEDULE I
Applicable Lending Offices and Notice Addresses
CITICORP USA, INC.
Notice Address:
Citicorp USA, Inc.
c/o Citicorp Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Telecopier No.: 000-000-0000
Domestic Lending Office and Eurodollar Lending Office:
Citicorp USA, Inc.
Bank Loan Syndications
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Telecopier No.: 000-000-0000
JPMORGAN CHASE BANK
Notice Address:
JPMorgan Chase Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxx Born
Telecopier No.: 000-000-0000
Confirmation
No.: 000-000-0000
E-mail:
xxxxx xxxx@xxxxxxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
JPMorgan
Chase Bank
0000 Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telecopier No.: 000-000-0000
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Notice Address and Domestic Lending Office:
Xxxxx
Fargo Bank, National Association
Sixth & Marquette – MAC N305-031
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telecopier No.: 000-000-0000
and to: Xxxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
E-Mail:
xxxxxxx.x.xxxxxxx@xxxxxxxxxx.xxx
Eurodollar Lending Office:
Xxxxx
Fargo Bank, National Association
Sixth & Marquette – MAC N305-031
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telecopier No.: 000-000-0000
and to: Xxxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
CREDIT SUISSE FIRST BOSTON
Notice Address:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, Corporate Banking
Telecopier: 000-000-0000
E-Mail: xxxx.xxxxxx@xxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
Credit Suisse First
Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx Xxxxxxxxx
and to: Xxxxx Xxxxxx
Telecopier No.: 000-000-0000
(With a copy to the Notice Address)
BANK ONE, NA
Notice Address:
Xxxx Xxx, XX
Xxxxx 0000, 00xx Xxxxx
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Telecopier No.: 312-732-3888
E-Mail:
jenny xxxxxx@xxxxxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
Bank One, NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxx
Telecopier No.: 000-000-0000
WACHOVIA BANK, NATIONAL ASSOCIATION
Notice Address:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx
Mail Code GA8050
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Ms. Xxxxxx Xxxxxx (Operations/Administration)
Telecopier No.: 000-000-0000 (Credit
Matters)
000-000-0000
(Operations/Administration)
E-Mail: xxxxxxxxxxxxx@xxxxxxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
Wachovia Bank, N.A.
000 Xxxxx Xxxxxxx Xxxxxx
Attn: Xxxxxx Xxxxxx
Telecopier No.: 000-000-0000
BANK OF AMERICA, N.A.
Notice Address:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000
Attn: Xxxxxxxx Xxxxxxxx
Telecopier No.: 000-000-0000
E-Mail:
xxxxxxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bank of America, N.A.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
E-Mail: xxxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxx
Telecopier No.: 000-000-0000
BARCLAYS BANK PLC
Notice Address:
Administrative Matters
Barclays Bank PLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier No.: 000-000-0000
E-Mail: Xxxxxx.Xxxxxx@xxxxxx.xxx
Operations Matters
Barclays Bank PLC
000 Xxxxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Telecopier No: 000-000-0000
E-Mail: xxxxx.xxxxx@xxxxxx.xxx
Domestic Lending Office and Eurodollar Lending Office:
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Notices to be addressed as specified above)
SCHEDULE II
Commitments
|
Institution |
|
Commitment |
|
|
|
Citicorp USA, Inc. |
|
$ |
32,500,000 |
|
|
JPMorgan Chase Bank |
|
$ |
32,500,000 |
|
|
Credit Suisse First Boston |
|
$ |
30,000,000 |
|
|
Bank One, NA (Main Office Chicago) |
|
$ |
20,000,000 |
|
|
Xxxxx Fargo Bank, National Association |
|
$ |
20,000,000 |
|
|
Wachovia Bank, N.A. |
|
$ |
20,000,000 |
|
|
Bank of America, N.A. |
|
$ |
10,000,000 |
|
|
Barclays Bank PLC |
|
$ |
10,000,000 |
|
|
Total |
|
$ |
175,000,000 |
|
