<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission File No. 1-9328
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ECOLAB INC.
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(Exact name of registrant as specified in its charter)
Delaware 41-0231510
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Ecolab Center, 370 N. Wabasha Street, St. Paul, Minnesota 55102
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(Address of principal executive offices)(Zip Code)
612-293-2233
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(Registrant's telephone number, including area code)
(Not Applicable)
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(Former name, former address and former fiscal year, if changed
since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of October 31, 1997.
64,538,541 shares of common stock, par value $1.00 per share.
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PART I - FINANCIAL INFORMATION
ECOLAB INC.
CONSOLIDATED STATEMENT OF INCOME
Third Quarter Ended
September 30
(thousands, except per share) 1997 1996
-------- --------
(unaudited)
Net Sales $432,873 $392,065
Cost of Sales 188,178 175,232
Selling, General
and Administrative Expenses 177,899 160,534
-------- --------
Operating Income 66,796 56,299
Interest Expense, Net 3,351 3,592
-------- --------
Income Before Income Taxes
and Equity in Earnings of
Joint Venture 63,445 52,707
Provision for Income Taxes 26,613 22,263
Equity in Earnings of Henkel-Ecolab
Joint Venture 3,657 5,084
-------- --------
Net Income $ 40,489 $ 35,528
-------- --------
-------- --------
Net Income Per Share
Net Income Per Common Share $ 0.63 $ 0.55
Fully Diluted $ 0.61 $ 0.54
Dividends Per Common Share $ 0.16 $ 0.14
Average Common Shares Outstanding 64,731 64,366
See notes to consolidated financial statements.
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ECOLAB INC.
CONSOLIDATED STATEMENT OF INCOME
Nine Months Ended Year Ended
September 30 December 31
(thousands, except per share) 1997 1996 1996
------- ------- -----------
(unaudited)
Net Sales $1,218,443 $1,098,981 $1,490,009
Cost of Sales 537,226 498,677 674,953
Selling, General
and Administrative Expenses 518,188 464,858 629,739
---------- ---------- ----------
Operating Income 163,029 135,446 185,317
Interest Expense, Net 9,403 11,616 14,372
---------- ---------- ----------
Income Before Income Taxes
and Equity in Earnings of
Joint Venture 153,626 123,830 170,945
Provision for Income Taxes 63,587 50,780 70,771
Equity in Earnings of
Henkel-Ecolab Joint Venture 9,548 9,721 13,011
---------- ---------- ----------
Net Income $ 99,587 $ 82,771 $ 113,185
---------- ---------- ----------
---------- ---------- ----------
Net Income Per Share
Net Income Per Common Share $ 1.54 $ 1.28 $ 1.75
Fully Diluted $ 1.49 $ 1.25 $ 1.69
Dividends Per Common Share $ 0.48 $ 0.42 $ 0.58
Average Common Shares Outstanding 64,798 64,421 64,496
See notes to consolidated financial statements.
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ECOLAB INC.
CONSOLIDATED BALANCE SHEET
September 30 September 30 December 31
(thousands) 1997 1996 1996
----------- ----------- -----------
(unaudited)
ASSETS
Cash and cash equivalents $ 66,972 $ 51,681 $ 69,275
Accounts receivable, net 230,609 203,461 205,026
Inventories 132,761 114,738 122,248
Deferred income taxes 29,301 21,848 29,344
Other current assets 8,371 11,408 9,614
---------- ---------- ----------
Current Assets 468,014 403,136 435,507
Property, Plant and
Equipment, Net 347,445 322,806 332,314
Investment in Henkel-Ecolab
Joint Venture 239,719 297,267 285,237
Other Assets 208,290 158,109 155,351
---------- ---------- ----------
Total Assets $1,263,468 $1,181,318 $1,208,409
---------- ---------- ----------
---------- ---------- ----------
See notes to consolidated financial statements.
(Continued)
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ECOLAB INC.
CONSOLIDATED BALANCE SHEET (Continued)
September 30 September 30 December 31
(thousands, except per share) 1997 1996 1996
------------ ------------ ------------
(unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY
Short-term debt $ 52,039 $ 25,972 $ 27,609
Accounts payable 105,819 82,997 103,803
Compensation and benefits 73,679 67,619 71,533
Income taxes 24,217 33,049 26,977
Other current liabilities 116,474 100,965 97,849
---------- ---------- ----------
Current Liabilities 372,228 310,602 327,771
Long-Term Debt 148,934 163,814 148,683
Postretirement Health Care
and Pension Benefits 85,266 78,254 73,577
Other Liabilities 122,048 133,170 138,415
Shareholders' Equity (common stock,
par value $1.00 per share;
shares outstanding: September 30,
1997 - 64,714; September 30,1996
- 64,409; December 31, 1996
- 64,800) 534,992 495,478 519,963
---------- ---------- ----------
Total Liabilities and
Shareholders' Equity $1,263,468 $1,181,318 $1,208,409
---------- ---------- ----------
---------- ---------- ----------
See notes to consolidated financial statements.
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ECOLAB INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
Nine Months Ended Year Ended
September 30 December 31
(thousands) 1997 1996 1996
-------- -------- -----------
(unaudited)
OPERATING ACTIVITIES
Net income $ 99,587 $ 82,771 $113,185
Adjustments to reconcile net
income to cash provided by
operating activities:
Depreciation 63,865 56,108 75,185
Amortization 11,203 10,116 14,338
Deferred income taxes (619) (625) (6,878)
Equity in earnings of joint venture (9,548) (9,721) (13,011)
Joint venture royalties and dividends 17,799 9,990 15,769
Other, net 1,557 817 1,023
Changes in operating assets and
liabilities:
Accounts receivable (26,166) 3,291 2,809
Inventories (9,708) (919) (6,852)
Other assets (15,338) (6,957) (5,255)
Accounts payable 3,135 (4,439) 16,397
Other liabilities 13,726 36,258 47,559
-------- -------- --------
Cash provided by operating activities $149,493 $176,690 $254,269
-------- -------- --------
Bracketed amounts indicate a use of cash.
See notes to consolidated financial statements.
(Continued)
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ECOLAB INC.
CONSOLIDATED STATEMENT OF CASH FLOWS (Continued)
Nine Months Ended Year Ended
September 30 December 31
(thousands) 1997 1996 1996
--------- -------- -----------
(unaudited)
INVESTING ACTIVITIES
Capital expenditures $(83,171) $ (82,018) $(111,518)
Property disposals 2,594 1,945 3,284
Businesses acquired (58,225) (41,150) (54,911)
Other, net (1,218) (1,148) (1,449)
-------- --------- ---------
Cash used for investing activities (140,020) (122,371) (164,594)
-------- --------- ---------
FINANCING ACTIVITIES
Notes payable 26,254 (43,407) (42,045)
Long-term debt borrowings 1,000 75,000 75,000
Long-term debt repayments (711) (20,640) (35,690)
Reacquired shares (34,367) (19,279) (22,790)
Dividends on common stock (31,105) (27,088) (36,096)
Other, net 27,556 8,256 17,088
-------- --------- ---------
Cash used for financing activities (11,373) (27,158) (44,533)
-------- --------- ---------
Effect of exchange rate
changes on cash (403) (198) (585)
-------- --------- ---------
INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS (2,303) 26,963 44,557
Cash and Cash Equivalents,
at beginning of period 69,275 24,718 24,718
-------- --------- ---------
Cash and Cash Equivalents,
at end of period $ 66,972 $ 51,681 $ 69,275
-------- --------- ---------
-------- --------- ---------
Bracketed amounts indicate a use of cash.
See notes to consolidated financial statements.
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ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
CONSOLIDATED FINANCIAL STATEMENTS
The unaudited consolidated statements of income for the third quarter and the
nine months ended September 30, 1997 and 1996, reflect, in the opinion of
management, all adjustments necessary for a fair statement of the results of
operations for the interim periods. The results of operations for any interim
period are not necessarily indicative of results for the full year. The
consolidated balance sheet data as of December 31, 1996 and the related
consolidated statements of income and cash flows data for the year then ended
were derived from audited consolidated financial statements, but do not include
all disclosures required by generally accepted accounting principles. The
unaudited consolidated financial statements should be read in conjunction with
the consolidated financial statements and notes thereto incorporated in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996.
Coopers & Lybrand L.L.P., the Company's independent accountants, have performed
a limited review of the interim financial information included herein. Their
report on such review accompanies this filing.
BALANCE SHEET INFORMATION
September 30 September 30 December 31
(thousands) 1997 1996 1996
------------ ------------ -----------
(unaudited)
Accounts Receivable, Net
Accounts receivable $ 241,511 $ 212,755 $ 214,369
Allowance for doubtful accounts (10,902) (9,294) (9,343)
--------- --------- ---------
Total $ 230,609 $ 203,461 $ 205,026
--------- --------- ---------
--------- --------- ---------
Inventories
Finished goods $ 54,833 $ 47,818 $ 52,232
Raw materials and parts 81,332 70,813 73,060
Excess of fifo cost over lifo cost (3,404) (3,893) (3,044)
--------- --------- ---------
Total $ 132,761 $ 114,738 $ 122,248
--------- --------- ---------
--------- --------- ---------
Property, Plant and Equipment, Net
Land $ 7,961 $ 7,616 $ 7,969
Buildings and leaseholds 133,908 127,110 129,781
Machinery and equipment 218,287 205,558 208,704
Merchandising equipment 362,432 321,429 330,277
Construction in progress 11,864 11,188 11,745
--------- --------- ---------
734,452 672,901 688,476
Accumulated depreciation
and amortization (387,007) (350,095) (356,162)
--------- --------- ---------
Total $ 347,445 $ 322,806 $ 332,314
--------- --------- ---------
--------- --------- ---------
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<PAGE>
ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
BALANCE SHEET INFORMATION (Continued)
September 30 September 30 December 31
(thousands) 1997 1996 1996
------------ ------------ ------------
(unaudited)
Other Assets
Intangible assets, net $ 124,305 $ 98,125 $ 96,865
Investments in securities 5,000 5,000 5,000
Deferred income taxes 26,354 27,847 26,582
Other 52,631 27,137 26,904
--------- -------- ---------
Total $ 208,290 $158,109 $ 155,351
--------- -------- ---------
--------- -------- ---------
Short-Term Debt
Notes payable $ 36,778 $ 10,690 $ 12,333
Long-term debt, current
maturities 15,261 15,282 15,276
--------- -------- ---------
Total $ 52,039 $ 25,972 $ 27,609
--------- -------- ---------
--------- -------- ---------
Shareholders' Equity
Common stock $ 71,340 $ 70,268 $ 70,751
Additional paid-in capital 196,387 174,506 187,111
Retained earnings 476,963 384,184 404,362
Deferred compensation (10,097) (8,344) (7,390)
Cumulative translation (24,998) 12,903 6,787
Treasury stock (174,603) (138,039) (141,658)
--------- -------- ---------
Total $ 534,992 $495,478 $ 519,963
--------- -------- ---------
--------- -------- ---------
Interest expense related to all debt was $13,256,000 and $14,604,000 for the
nine months ended September 30, 1997 and 1996 respectively, and $19,804,000 for
the year ended December 31, 1996.
Other noncurrent liabilities included income taxes payable of $82 million at
September 30, 1997, $100 million at December 31, 1996 and $96 million at
September 30, 1996.
In October 1997, the Company amended and restated its $225 million Multicurrency
Credit Agreement, increasing the credit available to $275 million and
specifically providing for anticipated borrowings of Australian dollars for
shares expected to be purchased under the Company's October 17, 1997 tender
offer to acquire the remaining outstanding shares of Gibson Chemical Industries
Limited. The terms of the amended and restated agreement are otherwise
generally similar to the agreement which it replaced.
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<PAGE>
ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
BALANCE SHEET INFORMATION (Continued)
At a special meeting on October 22, 1997, shareholders of the Company increased
authorized common shares to 200 million from 100 million. Although no final
decision has been made, the Company is considering a stock split and the
increase in common shares authorized provides the necessary flexibility
regarding the size of the possible split.
BUSINESS ACQUISITIONS
In February 1997, the Company acquired three small Institutional and Food and
Beverage businesses in the Central Africa region. Sales of the acquired
businesses were approximately $6 million in 1996.
In March 1997, the Company acquired the Institutional, Food and Beverage and
Commercial Laundry cleaning and sanitizing businesses of the Savolite Group,
which is based in Vancouver, British Columbia, Canada. The acquired Savolite
businesses complement the Company's operations, primarily in Canada, with
limited operations also in the U.S. Pacific Northwest. Sales of the acquired
Savolite businesses were approximately $8 million in 1996.
In August 1997, the Company acquired the Chemidyne Marketing Division of
Chemidyne Corporation, of Macedonia, Ohio. Chemidyne Marketing is a provider of
cleaning and sanitizing products and equipment to the meat, poultry and
processed food markets in the United States. Chemidyne Marketing has become
part of the Company's Food and Beverage Division. Sales of the acquired
Chemidyne business were approximately $17 million in 1996.
These acquisitions have been accounted for as purchases and, accordingly, the
results of their operations have been included in the financial statements of
the Company from the dates of acquisition. Net sales and operating income of
these businesses for the third quarter and nine months ended September 30, 1997
were not significant.
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<PAGE>
ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
OUTSTANDING OFFER FOR BUSINESS ACQUISITION
In August 1997, the Company acquired 14.9 percent of the outstanding common
shares of Gibson Chemical Industries Limited, located in Melbourne, Victoria,
Australia. Approximately 22.4 million shares are outstanding. The shares were
acquired in open market and private transactions by an Australian subsidiary of
the Company at prices between A$7.10 and A$8.00 per share. The total cost of
the shares acquired was approximately US$19.5 million and has been included in
other noncurrent assets as of the end of the third quarter. The Company also
announced that it would undertake a tender offer for all of the remaining
outstanding shares of Gibson. Gibson is a manufacturer and marketer of cleaning
and sanitizing products, primarily for the Australian and New Zealand
institutional, healthcare and industrial markets, with fiscal 1996 sales of
US$122 million.
Subsequent to the end of the third quarter, on October 17, 1997, the Company
commenced its tender offer for the remaining outstanding shares of Gibson at a
cash offer price of A$9.00 per share. (A$8.50 per share for Gibson shareholders
who choose to keep the A$0.50 per share dividend declared by Gibson.) This
offer was recommended by Gibson's directors and will remain open for a period of
30 days. At the time of the tender offer, the Company had increased its
holdings of Gibson shares to approximately 21 percent of the total shares
outstanding.
On November 5, 1997, the Company waived all remaining conditions to its tender
offer for the remaining shares of Gibson. This unconditional offer results in
the Company's immediate ownership of all shares which have been tendered and of
any shares to the extent tendered in the future. As of November 5, the Company
has received acceptances from former Gibson shareholders and made open market
purchases totaling 64 percent of Gibson's total outstanding shares.
The Company anticipates that the cost of the acquisition (total cost of all
shares would approximate US$150 million) will be initially financed through its
$275 million Multicurrency Credit Agreement. The Credit Agreement provides for a
facility to borrow Australian dollars up to the US dollar equivalent of $176
million from four of the participating banks under the Credit Agreement.
NET INCOME PER SHARE
Net income per common share amounts are computed by dividing net income by the
weighted average number of common shares outstanding.
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ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
NET INCOME PER SHARE (Continued)
Fully diluted per share amounts are computed as above and assume exercise of
dilutive stock options.
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, a new standard for computing and
presenting earnings per share. The Company is required to adopt the new
standard in the fourth quarter of 1997; earlier adoption is not permitted. The
Company expects that earnings per share computed under the new standard will
approximate earnings per share currently reported.
GEOGRAPHIC SEGMENTS
The Company is a global developer and marketer of premium cleaning, sanitizing
and maintenance products and services for the hospitality, institutional and
industrial markets. Customers include hotels and restaurants; foodservice,
healthcare and educational facilities; quickservice (fast-food) units;
commercial laundries; light industry; dairy plants and farms; and food and
beverage processors around the world. International consists of Canadian, Asia
Pacific, Latin American, African and Kay's international operations. In
addition, the Company and Henkel KGaA of Dusseldorf, Germany, each have a 50%
economic interest in the Henkel-Ecolab joint venture which operates
institutional and industrial cleaning and sanitizing businesses in Europe.
Information concerning the Company's equity in earnings of the Henkel-Ecolab
joint venture is provided in a separate note to the consolidated financial
statements.
Third Quarter Nine Months Year Ended
Ended September 30 Ended September 30 December 31
(thousands) 1997 1996 1997 1996 1996
-------- -------- -------- -------- -----------
(unaudited) (unaudited)
Net Sales
United States $338,764 $305,147 $ 949,100 $ 848,120 $1,148,778
International 94,109 86,918 269,343 250,861 341,231
-------- -------- ---------- ---------- ----------
Total $432,873 $392,065 $1,218,443 $1,098,981 $1,490,009
-------- -------- ---------- ---------- ----------
-------- -------- ---------- ---------- ----------
Operating Income
United States $ 60,738 $ 49,889 $ 146,363 $ 119,962 $ 164,886
International 7,102 7,242 19,641 17,891 23,871
Corporate (1,044) (832) (2,975) (2,407) (3,440)
-------- -------- ---------- ---------- ----------
Total $ 66,796 $ 56,299 $ 163,029 $ 135,446 $ 185,317
-------- -------- ---------- ---------- ----------
-------- -------- ---------- ---------- ----------
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ECOLAB INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
EQUITY IN EARNINGS OF HENKEL-ECOLAB JOINT VENTURE
Certain financial data of the Henkel-Ecolab joint venture and the components of
the Company's equity in earnings of the joint venture for the third quarter and
nine months ended September 30, 1997 and 1996 and for the year ended December
31, 1996 were as follows:
Third Quarter Nine Months Year Ended
Ended September 30 Ended September 30 December 31
(thousands) 1997 1996 1997 1996 1996
-------- -------- -------- -------- ----------
(unaudited) (unaudited)
Joint venture
Net sales $204,454 $227,719 $626,819 $677,501 $905,402
Gross profit 111,829 129,164 346,607 375,170 497,909
Income before
income taxes 14,734 22,389 42,141 50,175 65,091
Net income $ 8,770 $ 12,455 $ 24,364 $ 26,097 $ 34,808
Ecolab equity in earnings
Ecolab equity in
net income $ 4,385 $ 6,227 $ 12,182 $ 13,049 $ 17,404
Ecolab royalty
income from joint
venture, net of
income taxes 1,192 1,122 3,412 3,534 4,730
Amortization expense
for the excess of
cost over the
underlying net
assets of the joint
venture (1,920) (2,265) (6,046) (6,862) (9,123)
-------- -------- -------- -------- --------
Equity in earnings of
Henkel-Ecolab
joint venture $ 3,657 $ 5,084 $ 9,548 $ 9,721 $ 13,011
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
At September 30, 1997, the Company's investment in the Henkel-Ecolab joint
venture included approximately $143 million of unamortized excess of the
Company's investment over its equity in the joint venture's net assets.
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<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Board of Directors
Ecolab Inc.
We have reviewed the accompanying consolidated balance sheet of Ecolab Inc.
as of September 30, 1997 and 1996, and the related consolidated statements of
income for the three-month and nine-month periods ended September 30, 1997 and
1996, and the consolidated statement of cash flows for the nine-month periods
ended September 30, 1997 and 1996. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, the objective of which
is the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that
should be made to the accompanying consolidated financial statements for them to
be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet as of December 31, 1996, and the
related consolidated statements of income, shareholders' equity and cash flows
for the year then ended (not presented herein); and in our report dated February
24, 1997, we expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the accompanying
consolidated balance sheet as of December 31, 1996, and the related consolidated
statements of income and cash flows for the year then ended is fairly presented,
in all material respects, in relation to the consolidated balance sheet and
statements of income and cash flows from which it has been derived.
/s/ Coopers & Lybrand L.L.P
COOPERS & LYBRAND L.L.P.
Saint Paul, Minnesota
October 21, 1997
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ECOLAB INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS - THIRD QUARTER AND NINE MONTHS ENDED
SEPTEMBER 30, 1997
Net sales for the third quarter ended September 30, 1997 were $433 million, a 10
percent increase over net sales of $392 million in the third quarter of last
year. For the first nine months of 1997, net sales were over $1.2 billion and
increased 11 percent over net sales of almost $1.1 billion in the first nine
months of 1996. Business acquisitions accounted for approximately 20 percent of
the sales growth for the third quarter and 30 percent of the sales growth for
the first nine months of 1997. New product introductions, new customers,
competitive gains and generally good business conditions in the hospitality and
lodging industries also contributed significantly to the growth in sales.
The gross profit margin for the third quarter of 1997 was 56.5 percent of net
sales and increased significantly compared to the gross profit margin of 55.3
percent of net sales in the third quarter of last year. For the nine-month
period, the gross profit margin was 55.9 percent of net sales, an increase from
54.6 percent of net sales in the first nine months of last year. These
improvements in the gross profit margin reflected higher sales levels of the
Company's more profitable U.S. core operations, a more stable raw material cost
environment and good sales volume growth, particularly the growth in the sales
of new products. The benefit from selling price increases continued to be
limited due to market pressures.
For the third quarter of 1997, selling, general and administrative expenses were
41.1 percent of net sales, a slight increase compared to selling, general and
administrative expenses of 40.9 percent of net sales last year. For the first
nine months of 1997, selling, general and administrative expenses were 42.5
percent of net sales, up slightly from selling, general and administrative
expenses of 42.3 percent of net sales in the same period of last year. The
increase in these expenses reflects investments in the sales-and-service force
and the higher sales levels of the Company's core operations which have
relatively higher selling expenses. These increases were partially offset by
continued tight control of costs and strong sales growth during 1997. The
Company expects to continue investing in its sales-and-service force during the
fourth quarter of 1997, including investments in training and productivity.
Net income for the third quarter of 1997 totaled $40 million, and increased 14
percent over net income of $36 million in the comparable period of last year. On
a per share basis, net income per common share was $0.63, an increase of 15
percent over net income per common share of $0.55 in the third quarter of last
year. This earnings improvement reflected the benefits of higher sales,
particularly in the Company's core operations and continued tight cost controls,
which were partially offset by investments in the sales-and-service force and
lower equity in earnings of the Henkel-Ecolab joint venture. For the nine-month
period, net income was $100 million, or $1.54 per common share, an increase of
20 percent over net income of $83 million or $1.28 per common share in the first
nine months of 1996. The nine month earnings improvement reflected higher
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ECOLAB INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
sales, improved gross margins, the benefits of cost controls and lower interest
expense. These benefits were partially offset by investments in the
sales-and-service force.
Net sales for the Company's United States operations were $339 million for the
third quarter of 1997, an increase of 11 percent over third quarter 1996 sales
of $305 million. United States sales for the first nine months of 1997 totaled
$949 million, up 12 percent compared to net sales of $848 million during the
first nine months of last year. United States sales reflected strong growth in
the core Institutional and Food and Beverage operations and benefits from
business acquisitions, new product introductions, new customers and continued
good business trends in the hospitality and lodging industries. Business
acquisitions accounted for approximately 15 percent of the growth in United
States sales for the third quarter and 25 percent of the growth in United States
sales for the first nine months of 1997. Selling price increases continued to
be limited due to tight pricing conditions in several of the markets in which
the Company does business. Sales of the U.S. Institutional Division increased 13
percent for the third quarter and 11 percent for the first nine months of 1997,
and reflected strong growth in all product lines. Pest Elimination reported
sales growth of 9 percent for both the third quarter and nine-month periods.
Pest Elimination's growth was slightly lower than its historical double-digit
rate, reflecting lower than expected contract growth. Sales of Kay's U.S.
operations increased 6 percent for the third quarter and 5 percent for the first
nine months of 1997, and reflected sales to new customers which were partially
offset by the negative effects of a slow-down in the quickservice market.
Textile Care Division sales were down 4 percent for the third quarter and
decreased 2 percent for the first nine months of 1997. Continued plant
consolidations, particularly in the healthcare market, increased competitive
activity and a difficult comparison against periods which benefited
significantly from new product introductions, continued to negatively affect
Textile Care's sales growth. The Company expects Textile Care to continue to
experience difficult market conditions over the near term. Professional
Products sales increased 7 percent for the third quarter and 16 percent for the
nine-month period. Sales for the first nine months reflected the February 1996
acquisition of Huntington Laboratories. Excluding Huntington's sales,
Professional Products sales growth was 6 percent for the first nine months of
1997. Professional Products growth reflected good growth in sales to corporate
accounts and the addition of new branded products to its commercial mass
distribution lines, which were partially offset by the elimination of low margin
business from its Huntington product line. Sales of the Company's Water Care
Services Division were down 3 percent for the third quarter and decreased 2
percent for the first nine months of 1997. These decreases reflected the
consolidation of business acquisitions made over the past three years,
integration of disparate product lines, elimination of low margin business and
the refining of sales efforts. The Food and Beverage Division reported growth
of 18 percent for the third quarter and 27 percent for the first nine months of
1997, reflecting the recent acquisition of the Chemidyne Marketing Division of
Chemidyne Corporation and the August 1996 acquisition of Monarch from H.B.
Fuller. Excluding the effects of these acquisitions, Food and Beverage sales
grew 9 percent for the third quarter and 10 percent for the first nine months of
1997, with good growth in sales to each of its markets.
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<PAGE>
ECOLAB INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
Operating income of the Company's United States operations was $61 million for
the third quarter ended September 30, 1997, up 22 percent over operating income
of $50 million in the third quarter of last year. For the first nine months of
1997, United States operating income was $146 million, an increase of 22 percent
over operating income of $120 million in the comparable period of last year.
With the exception of the Textile Care Division, all of the United States
businesses reported increased operating income for both the third quarter and
nine-month periods. The United States operating income margin improved to 17.9
percent of net sales in the third quarter of 1997 from 16.3 percent of net sales
in the third quarter of last year. For the first nine months of 1997, the
operating income margin improved to 15.4 percent of net sales from 14.1 percent
of net sales in the comparable period of last year. The improvements in
operating income reflected increased sales, particularly in the core operations
and in sales of new products, and the benefits of stable raw material costs and
tight cost controls, which were partially offset by investments in the
sales-and-service force.
Sales of the Company's International Operations were $94 million for the third
quarter of 1997, an increase of 8 percent compared to third quarter 1996 sales
of $87 million. For the nine-month period, International's sales totaled $269
million, an increase of 7 percent over sales of $251 million in the first nine
months of 1996. Business acquisitions accounted for approximately 50 percent of
third quarter and nine-month sales growth. Changes in currency translation had
a negative impact on reported sales of International operations, particularly in
the Asia Pacific region. Excluding the effects of currency translation, sales
of International operations increased 12 percent for the third quarter and 11
percent for the first nine months of 1997. The Asia Pacific region reported
sales growth of 4 percent for both the third quarter and nine-month periods of
1997. However, when measured in local currencies, Asia Pacific sales grew 10
percent for both the third quarter and first nine months of 1997 and included
double-digit growth in Japan and in the Southeast and Northeast Asia Pacific
regions. Latin America reported U.S. dollar sales growth of 11 percent for the
third quarter and 10 percent for the first nine months of 1997. The effects of
changes in currency translation did not have a significant impact on Latin
America's reported sales. Latin America results continued to be led by Mexico,
which reported significant double-digit growth, and also included double-digit
growth for each of the reporting periods in Brazil. Canada reported sales
growth of 18 percent for the third quarter and 16 percent for the nine-month
period, and included a modest negative impact from changes in currency
translation. Approximately 75 percent of Canada's sales growth for each of the
reporting periods was due to business acquisitions. Canadian results also
included good growth in sales to the Institutional and Food and Beverage
markets. Third quarter and nine month 1997 International sales included
additional sales from businesses acquired in the East Africa and North Africa
regions, and reflected weak sales in South Africa.
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<PAGE>
ECOLAB INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
For the third quarter of 1997, International operating income was $7 million, a
2 percent decrease compared to the third quarter of last year. For the first
nine months of 1997, International operating income of $20 million increased 10
percent over operating income of $18 million in the comparable period of last
year. The International operating income margin was 7.5 percent of net sales
for the third quarter of 1997, down from the third quarter 1996 operating
income margin of 8.3 percent. For the nine-month period, International's
operating income margin of 7.3 percent of net sales rose slightly from last
year's nine-month operating income margin of 7.1 percent. Changes in currency
translation had a negative impact on International's reported operating income.
Excluding the effects of currency translation, International operating income
increased 6 percent for the third quarter and 17 percent for the first nine
months of 1997. Local currency operating income improved at double-digit rates
in Latin America and Canada, with Asia Pacific also reporting strong local
currency growth. These gains were partially offset by investments in Africa.
The Company's equity in earnings of the Henkel-Ecolab joint venture was $3.7
million for the third quarter of 1997, a decrease of 28 percent from strong
equity in earnings of the joint venture of $5.1 million reported in the third
quarter of last year. For the first nine months of 1997, the Company's equity
in earnings of the joint venture was $9.5 million, down 2 percent compared with
nine month 1996 equity in earnings of the joint venture of $9.7 million. Joint
venture results were negatively affected by changes in currency translation and
comparisons against strong results from last year's third quarter; however,
business and economic conditions remain difficult in Europe's central countries
and in the janitorial and textile hygiene markets. Joint venture sales,
although not consolidated in Ecolab's financial statements, increased 6 percent
for the third quarter and 5 percent for the nine-month period when measured in
Deutsch marks. When measured in U.S. dollars, joint venture sales were
negatively affected by the strengthening U.S. dollar and decreased 10 percent
and 7 percent for the third quarter and the nine-month periods respectively.
Corporate operating expense was $1 million in the third quarter of 1997 and $3
million for the first nine months of 1997, and represented overhead costs
directly related to the joint venture.
Net interest expense was $3 million in the third quarter of 1997, a decrease of
7 percent from net interest expense in the comparable quarter of last year.
Nine-month net interest expense was $9 million and decreased 19 percent compared
to net interest expense in the first nine months of last year. These decreases
in net interest expense were due to lower average debt levels and higher levels
of cash and cash equivalents.
For the third quarter of 1997, the provision for income taxes reflected an
estimated effective rate of 41.9 percent, virtually the same as last year's
third quarter estimated effective rate of 42.2 percent. For the first nine
months of 1997, the estimated effective tax rate was 41.4 percent, up slightly
from last year's nine month rate of 41.0 percent. The increase in the
nine-month estimated effective income tax rate was due to higher anticipated
effective tax rates related to the Company's international operations.
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<PAGE>
ECOLAB INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS (Continued)
FINANCIAL POSITION AND LIQUIDITY
Total assets at September 30, 1997 were nearly $1.3 billion, an increase of 5
percent from total assets at December 31, 1996. This increase in total assets
reflected increases in accounts receivable, inventories, property, plant and
equipment and other assets due to business acquisitions and general business
growth. These increased asset levels were offset by a lower investment in the
Henkel-Ecolab joint venture due to the effects of changes in currency
translation, and dividends which were received from the joint venture.
Total debt at September 30, 1997 was $201 million, an increase of $25 million or
14 percent from total debt of $176 million at December 31, 1996. The ratio of
total debt to capitalization increased to 27 percent at September 30, 1997 from
the ratio of total debt to capitalization of 25 percent at December 31, 1996.
The increase in total debt reflected additional short-term debt incurred in
Australia related to the Company's purchase of approximately 15 percent of the
outstanding common shares of Gibson Chemical Industries Limited, located in
Melbourne, Victoria, Australia.
Cash provided by continuing operations totaled $149 million for the first nine
months of 1997, a decrease from $177 million of cash which was provided by
operating activities in the first nine months of last year. The decrease
reflected the reversal of favorable timing of payments which affected the fourth
quarter of 1996 and an income tax deposit made against outstanding federal
income issues that had been accrued for in other noncurrent liabilities. The
decrease also reflected favorable cash flows during the nine months ended
September 30, 1996 from the collection of accounts receivable related to strong
fourth quarter 1995 sales. The comparison of cash provided by operating
activities was favorably affected by increased earnings compared with the first
nine months of last year and higher dividends received from the joint venture.
In May 1995, the Company announced a six million share repurchase program. As
part of that program, the Company purchased approximately 3.5 million shares in
June 1995 under a "Dutch Auction" self-tender offer. At September 30, 1997,
there were approximately 2.4 million shares remaining under the existing
repurchase authorization. Additionally, consistent with its longstanding
practice, the Company has acquired shares under its systematic repurchase
program to fund employee benefit plans. During 1997, approximately 410,000
shares were purchased in the third quarter and 763,000 shares were purchased
during the first nine months of 1997 under these programs. The Company intends
to continue making purchases from time to time in open market and privately
negotiated transactions.
NEW ACCOUNTING PROUNCEMENT
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, a new standard for computing and
presenting earnings per share. The Company is required to adopt the new
standard in the fourth quarter of 1997; earlier adoption is not permitted. The
Company expects that earnings per share computed under the new standard will
approximate earnings per share currently reported.
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<PAGE>
PART II. OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following documents are filed as exhibits to this
report:
(4)A. Multicurrency Credit Agreement ("Credit Agreement")
dated as of September 29, 1993, as Amended and Restated
as of October 17, 1997, among Ecolab Inc., the Banks
parties thereto, Citibank, N.A., as Agent for the
Banks, Citibank International Plc, as Euro-Agent for
the Banks and Morgan Guaranty Trust Company of New York
as Co-Agent.
B. Australian Dollar Local Currency Addendum to the Credit
Agreement dated as of October 17, 1997 among Ecolab
Pty. Limited, Ecolab Inc., Citibank, N.A., the Local
Currency Agent named therein and the Local Currency
Banks party thereto.
(15) Letter regarding unaudited interim financial
information.
(27) Financial Data Schedule.
(b) Reports on Form 8-K:
The Company filed three reports on Form 8-K, dated August 15,
August 22 and August 29, 1997, during the quarter ended
September 30, 1997, reporting, respectively:
(i) Call by the Board of Directors of a Special Meeting of
the Company's Stockholders for October 22, 1997;
(ii) The Company's initial equity stake in Gibson Chemical
Industries Limited of Melbourne, Victoria, Australia;
and
(iii) The Company's planned tender offer for all the
remaining outstanding shares of Gibson Chemical
Industries Limited.
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<PAGE>
Subsequent to the quarter ended September 30, 1997, the
Company filed three additional reports on Form 8-K, dated
October 2, October 9 and October 22, 1997 reporting,
respectively:
(i) Developments in the Company's negotiations with Gibson
Chemical Industries Limited;
(ii) Recommendation of the Company's offer for the remaining
outstanding shares of Gibson Chemical Industries
Limited by the Gibson Board of Directors; and
(iii) Results of the Company's Special Meeting of
Stockholders held October 22, 1997 approving the
proposal to increase the number of authorized shares of
the Company's common stock from 100,000,000 to
200,000,000 shares.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
ECOLAB INC.
Date: November 12, 1997 By: /s/Michael E. Shannon
------------------ -----------------------------------
Michael E. Shannon
Chairman of the Board, Chief Financial
and Administrative Officer
(duly authorized officer and
Principal Financial Officer)
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<PAGE>
EXHIBIT INDEX
Exhibit Description Method of Filing
- ------- ----------- ----------------
(4)A. Multicurrency Credit Agreement Filed herewith
("Credit Agreement") dated as of electronically
September 29, 1993, as Amended
and Restated as of October 17, 1997,
among Ecolab Inc., the Banks parties
thereto, Citibank, N.A., as Agent for
the Banks, Citibank International Plc,
as Euro-Agent for the Banks and Morgan
Guaranty Trust Company of New York as
Co-Agent.
B. Australian Dollar Local Currency Filed herewith
Addendum to the Credit Agreement electronically
dated as of October 17, 1997 among
Ecolab Pty. Limited, Ecolab Inc.,
Citibank, N.A., the Local Currency Agent
named therein and the Local Currency
Banks party thereto.
(15) Letter regarding unaudited interim Filed herewith
financial information electronically
(27) Financial Data Schedule Filed herewith
electronically
<PAGE>
MULTICURRENCY CREDIT AGREEMENT
Dated as of September 29, 1993
As Amended and Restated as of October 17, 1997
ECOLAB INC., a Delaware corporation (the "COMPANY"), the Banks party
hereto from time to time, 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 MORGAN 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.
"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
<PAGE>
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, a Local Currency Advance or a B
Advance.
"AFFILIATE" means, when used with respect to a specified Person,
another Person that directly or indirectly controls or is controlled by or
is under common control with the Person specified.
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<PAGE>
"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.
"ANNIVERSARY DATE" means each October 17 occurring during the term of
this Agreement, commencing October 17, 1998, 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, such Bank's Eurocurrency Lending Office in the case of a
Eurocurrency Advance (other than a Eurocurrency Advance which is a
Local Currency Advance), such Bank's (or it's Affiliate's) branch or
agency, as specified by such Bank in the applicable Local Currency
Addendum, in the case of a Local Currency 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.
"APPLICABLE MARGIN" means, as applicable, the Applicable CD Rate
Margin under SECTION 2.07(b), the Applicable Eurocurrency Margin under
SECTION 2.07(c), the Applicable Floating Rate Margin under any Applicable
Local Currency Addendum or the Applicable Fixed Rate Margin under any Local
Currency Addendum.
"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.
"AUSTRALIAN LOCAL CURRENCY ADDENDUM" means the Local Currency Addendum
dated as of October __, 1997 among Ecolab PTY Limited, the Company, the
Local Currency Banks named therein, the Agent, and Citisecurities Limited
as Local Currency Agent.
"AVAILABLE COMMITMENT" means, as to any Bank at any time, an amount
equal to such Bank's Commitment at such time MINUS the aggregate of all
such Bank Committed Advances outstanding at such time.
-3-
<PAGE>
"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.
"BANKS" means the financial institutions listed on the signature pages
hereof, and any assignee of an existing Bank pursuant to an Assignment and
Acceptance.
"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:
(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, a Local Currency Borrowing or a
B Borrowing.
-4-
<PAGE>
"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 or a branch of the Company under a Local
Currency Addendum, 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 or in which
such branch of the Company is located, respectively.
"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 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
-5-
<PAGE>
(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.
"COMMITTED ADVANCE" means an A Advance or a Local Currency Advance.
COMMITTED BORROWING" means an A Borrowing or a Local Currency
Borrowing.
"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 Committed Advances of one Type into Committed 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
-6-
<PAGE>
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.
"DEFAULT" means any event which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both.
"DESIGNATED A BORROWING" has the meaning specified in SECTION 2.01(b).
"DESIGNATED LOCAL CURRENCY BORROWING" has the meaning specified in
SECTION 2.01(b).
"DESIGNATED PREPAYMENT" has the meaning specified in SECTION 2.01(b).
"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.
-7-
<PAGE>
"ELIGIBLE LOCAL CURRENCY BANK" means with respect to any Local
Currency Addendum, any Local Currency Bank under such Local Currency
Addendum which meets the eligibility requirements set forth in such Local
Currency Addendum.
"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" means 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 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 Committed Borrowing,
an interest rate per annum
-8-
<PAGE>
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 Committed 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
Committed 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.
"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
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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" means, as applicable, the Adjusted CD Rate, the
Eurocurrency Rate, or any fixed interest rate set forth in a Local Currency
Addendum.
"FIXED RATE AUCTION" has the meaning specified in SECTION
2.03(b)(i).
"FIXED RATE ADVANCE" means any Adjusted CD Rate Advance, any
Eurocurrency Advance, or any Local Currency Advance which bears interest at
a fixed interest rate set forth in the applicable Local Currency Addendum.
"FLOATING RATE" means, as applicable, the Base Rate or any fluctuating
interest rate set forth in a Local Currency Addendum.
"FLOATING RATE ADVANCE" means any Base Rate Advance, or any Local
Currency Advance which bears interest at a fluctuating interest rate set
forth in the Local Currency Addendum.
"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.
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"INTEREST PERIOD" means, for each Adjusted CD Rate Advance
comprising part of the same A Borrowing, each Eurocurrency Advance
comprising part of the same Committed Borrowing, or each other Fixed
Rate Advance comprising part of the same Local Currency Borrowing, the
period commencing on the date of such Committed Advance or the date of
the Conversion or Redenomination, as applicable, of any Floating Rate
Advance into such a Committed 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, one, two, three or six months, or nine or twelve months, if
available, in the case of a Eurocurrency Advance, and such number of
days or months as may be set forth in the applicable Local Currency
Addendum in the case of a Fixed Rate Advance other than 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 Committed Advances comprising part of the same Committed
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 Committed Borrowing shall include both
Fixed Rate Advances and Floating Rate Advances, each such Floating
Rate Advance shall be assigned an Interest Period that is coextensive
with the Interest Period then assigned to such Fixed Rate 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.
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"JOINT VENTURE AGREEMENT" means the Amended and Restated Umbrella
Agreement dated as of June 26, 1991 between the Company and Henkel
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.
"LOCAL CURRENCY ADDENDUM" means a local currency addendum among the
Company, a Borrowing Subsidiary, one or more Local Currency Banks, a Local
Currency Agent and the Agent, substantially in the form of EXHIBIT A.
"LOCAL CURRENCY ADVANCE" means any Advance in an Alternative
Currency, made to a Borrower pursuant to SECTION 2.02A and a Local
Currency Addendum. Each Local Currency Advance shall be a Fixed Rate
Advance or a Floating Rate Advance. Floating Rate Advances under a
Local Currency Addendum, and Fixed Rate Advances of the same type
under a Local Currency Addendum each shall be a "TYPE" of Local
Currency Advance.
"LOCAL CURRENCY AGENT" means one or more entities (which may be the
Agent or one of its local Affiliates), satisfactory to the Agent, as
specified in the applicable Local Currency Addendum. Unless the Agent
otherwise elects, the Local Currency Agent under each Local Currency
Addendum shall be the Agent or one of its local Affiliates.
"LOCAL CURRENCY BANK" means any Bank (or any Affiliate, branch or
agency thereof) party to a Local Currency Addendum. In the event any
agency, branch or Affiliate of a Bank shall be party to a Local Currency
Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Advances made by it, have all the rights of
such Bank hereunder; PROVIDED, however, that such Bank shall continue to
the exclusion of such agency or Affiliate to have all the voting and
consensual rights vested in it by the terms hereof.
"LOCAL CURRENCY BORROWING" means a Borrowing comprised of Local
Currency Advances.
"LOCAL CURRENCY COMMITMENT" has the meaning specified in SECTION
2.02A.
"LOCAL CURRENCY COUNTRY" means, with respect to any Local Currency
Addendum, the country in which Local Currency
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Advances are to be made and repaid under such Local Currency Addendum.
"LOCAL CURRENCY FACILITY" means a facility for providing Local
Currency Advances pursuant to a Local Currency Addendum.
"LOCAL CURRENCY FACILITY AGGREGATE COMMITMENT" has the meaning
specified in SECTION 2.02A.
"MAJORITY BANKS" means at any time Banks holding at least 51% of
the then aggregate unpaid principal amount of the Committed Advances
made 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 outstanding Committed Advances 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.
"MAJORITY LOCAL CURRENCY BANKS" means at any time with respect to any
Local Currency Addendum, Local Currency Banks having at such time Local
Currency Commitments representing at least 51% of the Local Currency
Facility Aggregate Commitment at such time under such Local Currency
Addendum.
"MARGIN STOCK" has the meaning specified in Regulation U issued
by the Board of Governors of the Federal Reserve System.
"MOODY'S" means Moody's 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
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.
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"NOTE" means an A Note, a B Note or any note issued with respect
to any Local Currency Advances.
"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.
"NOTICE OF LOCAL CURRENCY BORROWING" has the meaning specified in
SECTION 2.02B(a).
"PAYMENT OFFICE" means (i) for Dollars, the principal office of
Citibank in New York City, located on the date hereof at 399 Park
Avenue, New York, New York 10043, (ii) for any Alternative Currency
(other than with respect to Local Currency Advances), the office of
Citibank International Plc located at 335 Strand, London WC2R ILS
England, and (iii) with respect to any Local Currency Advance, the
office of the Local Currency Agent set forth in the applicable Local
Currency Addendum, or in any case, such other office of the Agent, the
Euro-Agent or the Local Currency Agent, as applicable, 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 Committed
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 Morgan Guaranty Trust
Company of New York.
"RESTATEMENT DATE" means October __, 1997, 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
McGraw-Hill 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, 2002, 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.
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"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 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", and in respect of any
Local Currency Advance, has the meaning assigned thereto in the
definition herein of "LOCAL CURRENCY 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.
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"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 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
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quoted by Citibank (or, if applicable, the applicable Local Currency Agent if
other than Citibank or an Affiliate of Citibank), in London, at 9:00 A.M.
(London time) (or if later, at the time of receipt of the applicable Notice) 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; provided that if the rate of exchange cannot be determined as
described above, then the rate of exchange shall be the rate determined by the
Euro-Agent or the applicable Local Currency Agent in good faith to be the
appropriate rate of exchange, having regard to market conditions as the
Euro-Agent or such applicable Local Currency Agent deems appropriate.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE COMMITTED 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. Each Local Currency Bank under a Local
Currency Addendum severally agrees, on the terms and conditions set forth herein
and in such Local Currency Addendum, to make Local Currency Advances to a
Borrower party to such Local Currency Addendum from time to time on any Business
Day on and after the execution of such Local Currency Addendum until the earlier
of the Termination Date or the termination of the Commitment of such Local
Currency Bank under such Local Currency Addendum. The aggregate amount
(determined in Dollars) of the Committed Advances of any Bank shall not 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 to which such Bank
is a party), as such amount may be reduced 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 shall be applied to the Banks ratably
according to their respective unused 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 Available Commitments; PROVIDED HOWEVER, that if the Borrower
desires to obtain Local Currency Advances under the Australian Dollar Local
Currency Addendum, but lacks borrowing availability from the
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Local Currency Banks under such Local Currency Addendum because of the amount of
outstanding A Advances, an A Borrowing (a "DESIGNATED A BORROWING") made to fund
a prepayment of A Advances to such Local Currency Banks in order to increase
borrowing availability under such Local Currency Addendum (a "DESIGNATED
PREPAYMENT") shall, at the election of the Borrower set forth in the Notice of A
Borrowing for such Designated A Borrowing, be made by the Banks ratably
according to their respective Available Commitments after giving pro forma
effect to both the Designated Prepayment and the Local Currency Advances to be
made as a result of the increase of borrowing availability under the applicable
Local Currency Addendum (the "DESIGNATED LOCAL CURRENCY BORROWING"); PROVIDED
FURTHER, HOWEVER, that each Designated A Borrowing must be made on the same date
as the corresponding Designated Prepayment and the proceeds of the Designated A
Borrowing shall be applied simultaneously to the making of the corresponding
Designated Prepayment, and the corresponding Designated Local Currency Borrowing
shall be made within two Business Days thereafter. Each Local Currency
Borrowing under a Local Currency Addendum shall consist of Local Currency
Advances in the same Alternative Currency of the same Type made on the same day
to the same Borrower by the applicable Local Currency Banks ratably according to
the respective Local Currency Commitments of such Local Currency Banks. Each
Committed Borrowing shall be in an aggregate amount:
(i) in the case of 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 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 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;
(iv) in the case of a Borrowing comprised of Eurocurrency
Advances (other than Local Currency 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; and
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(v) in the case of a Local Currency Borrowing, not less than
the amounts, if any, specified in the applicable Local Currency Addendum.
PROVIDED, that in the case of any such Borrowing comprised of Eurocurrency
Advances denominated in an Alternative Currency, the proceeds of which shall be
used to repay a then maturing Borrowing comprised of Eurocurrency Advances
denominated in such Alternative Currency, such new 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 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):
(w) in the case of a proposed A Borrowing comprised of Base Rate
Advances, to the Agent on the date of such proposed Borrowing (but two
Business Days prior to the date of such proposed Borrowing in the case of a
Designated A 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 (but four Business Days prior to the date of such
proposed Borrowing in the case of a Designated A Borrowing);
(y) in the case of a proposed A Borrowing comprised of Eurocurrency
Advances denominated in Dollars, to the Agent three Business Days prior to
the date of such proposed Borrowing (but five Business Days prior to the
date of such proposed Borrowing in the case of a Designated A 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 (but five
Business Days
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prior to the date of such proposed Borrowing in the case of a Designated A
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 Adjusted CD Rate Advances or
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) or 2.07(c), as applicable.
(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;
(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,
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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
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amount is repaid to the Agent or the Euro-Agent, as 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 or the Agent's overdraft cost, if higher. 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 2.02A. TERMS OF LOCAL CURRENCY FACILITIES. (a) Each of the
Company and one or more Local Currency Banks may in its discretion from time to
time agree that the Company and/or one or more Borrowing Subsidiaries may borrow
Local Currency Advances on a revolving basis from any one or more Local Currency
Banks by delivering a Local Currency Addendum (through the Agent), executed by
the Company, the Local Currency Agent, each such Borrowing Subsidiary and each
such Local Currency Bank; PROVIDED, HOWEVER, that on the date of such Local
Currency Addendum (i) an exchange rate with respect to the Alternative Currency
covered by such Local Currency Addendum shall be determinable by reference to
the Reuters currency pages (or comparable publicly available screen) and (ii) no
Default or Event of Default shall have occurred and be continuing. The Company,
each Borrowing Subsidiary and, by agreeing to any Local Currency Addendum, each
relevant Local Currency Bank, acknowledges and agrees that each reference in
this Agreement to any Bank shall, to the extent applicable, be deemed to be a
reference to such Local Currency Bank, subject to the second sentence of the
definition of such term. In order to establish a Local Currency Facility, the
Company shall advise each Bank of its desire to establish such facility, either
directly or through the Agent, and shall discuss with any Bank expressing an
interest in becoming a Local Currency Bank under the proposed Local Currency
Facility the proposed terms thereof and the potential participation of such Bank
therein. The participation of any Bank desiring to participate in a Local
Currency Facility is at the sole discretion of the Company.
(b) Each Local Currency Addendum shall set forth (i) the maximum
amount (expressed in Dollars and without duplication) available to be borrowed
from all Local Currency Banks under such Local Currency Addendum (a "LOCAL
CURRENCY FACILITY AGGREGATE
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COMMITMENT") and (ii) with respect to each Local Currency Bank party to such
Local Currency Addendum, the maximum amount (expressed in Dollars and without
duplication) available to be borrowed from such Local Currency Bank thereunder
(a "LOCAL CURRENCY COMMITMENT"). In no event shall the aggregate of all Local
Currency Commitments in respect of any Local Currency Bank at any time exceed
such Bank's Commitment. Except as provided herein, the making of Local Currency
Advances by a Local Currency Bank under a Local Currency Addendum shall under no
circumstances reduce the amount available to be borrowed from such Bank under
any other Local Currency Addendum to which such Bank is a party. Each Local
Currency Addendum may also set forth eligibility criteria for any Local Currency
Banks to be Eligible Local Currency Banks thereunder.
(c) Except as otherwise required by applicable law, in no event shall
the Local Currency Banks have the right to accelerate the Local Currency
Advances outstanding under any Local Currency Addendum or to terminate their
commitments (if any) thereunder to make Local Currency Advances prior to the
stated termination date in respect thereof, except that such Local Currency
Banks shall, in each case, have such rights upon an acceleration of the Advances
and a termination of the Commitments pursuant to ARTICLE VI, respectively. No
Local Currency Advance may be made if, (i) the outstanding Committed Advances of
any Bank would exceed such Bank's Commitment, (ii) the aggregate principal
amount of outstanding Local Currency Advances would exceed the applicable Local
Currency Facility Aggregate Commitment or (iii) the sum of the aggregate
Committed Advances and the aggregate B Advances would exceed the Total
Commitment.
(d) The applicable Borrower and the applicable Local Currency Banks,
or, if so specified in the relevant Local Currency Addendum, the Local Currency
Agent acting on their behalf, shall furnish to the Agent, promptly following the
making, payment or prepayment of each Local Currency Advance, and at any other
time at the reasonable request of the Agent, a statement setting forth the
outstanding Local Currency Advances made under such Local Currency Addendum.
(e) The relevant Borrowing Subsidiary or the Company shall furnish to
the Agent copies of any amendment, supplement or other modification to the terms
of any Local Currency Addendum promptly after the effectiveness thereof.
(f) The Company may terminate any Local Currency Addendum in its sole
discretion if there are not any Advances outstanding thereunder, by written
notice to the Agent and the Local Currency Agent, which notice shall be executed
by the
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Company, each relevant Borrowing Subsidiary and, if their consent is required,
each such Local Currency Bank.
SECTION 2.02B. MAKING THE LOCAL CURRENCY ADVANCES. (a) Each Local
Currency Borrowing shall be made on notice given by the Company (on behalf of
itself or the applicable Borrowing Subsidiary) to the applicable Local Currency
Agent, with copies to the Agent and the Euro-Agent, made at the time specified
in the applicable Local Currency Addendum. The applicable Local Currency Agent
shall give each applicable Local Currency Bank prompt notice thereof by
telecopy, telex or cable. Each such notice of a Local Currency Borrowing (a
"NOTICE OF LOCAL CURRENCY BORROWING") shall be by telecopy, telex or cable,
confirmed immediately in writing, in substantially the form of EXHIBIT B-4
hereto, specifying therein the requested (i) Borrower, (ii) date of such Local
Currency Borrowing, (iii) Type of Advances comprising such Local Currency
Borrowing, (iv) in the case of a proposed Local Currency Borrowing comprised of
Eurocurrency Advances or other Fixed Rate Advances, initial Interest Period for
each such Advance and (v) aggregate amount of such Local Currency Borrowing.
The Company shall certify, in each Notice of Local Currency Borrowing, the
Credit Ratings, if any, then in effect. The Company shall request, within
one-half hour prior to the issuance of the applicable Notice of Local Currency
Borrowing, the advice of the Local Currency 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 Local Currency Borrowing the exchange rate so
advised to it by the Local Currency Agent. In the case of a proposed Local
Currency Borrowing comprised of Fixed Rate Advances, the Local Currency Agent
shall promptly notify each Bank and the Company of the applicable interest rate
under the Local Currency Addendum.
(b) Subject to any alternative procedures set forth in the applicable
Local Currency Addendum, each Local Currency Bank, for the account of its
Applicable Lending Office, shall make such Local Currency Bank's ratable portion
of such Local Currency Borrowing on the proposed date thereof by wire transfer
of immediately available funds to the applicable Local Currency Agent by the
time specified in the Local Currency Addendum or Notice of Local Currency
Borrowing, and the Local Currency Agent shall make such funds available to the
applicable Borrower at the applicable Payment Office.
(c) Each Notice of Local Currency Borrowing shall be irrevocable and
binding on the Borrower on whose behalf it shall have been submitted. In the
case of any Local Currency Borrowing which the related Notice of Local Currency
Borrowing specifies is to be comprised of Eurocurrency Advances or other Fixed
Rate
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Advances, the applicable Borrower shall indemnify each applicable Local Currency
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 Local Currency Borrowing for such Local Currency 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 Local Currency Advance
to be made by such Bank as part of such Local Currency Borrowing when such Local
Currency Advance, as a result of such failure, is not made on such date.
(d) Unless the applicable Local Currency Agent shall have received
notice from a Local Currency Bank prior to the date of any Local Currency
Borrowing that such Bank will not make available to the Local Currency Agent
such Bank's ratable portion of such Local Currency Borrowing, the Local Currency
Agent may assume that such Bank has made such portion available to it on the
date of such Local Currency Borrowing in accordance with SUBSECTION (b) of this
SECTION 2.02B 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 Local Currency Agent, such Bank and
such Borrowing Subsidiary severally agree to repay to the Local Currency Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such Borrowing
Subsidiary until the date such amount is repaid to the Local Currency Agent at
(i) in the case of such Borrowing Subsidiary, the interest rate applicable at
the time to Local Currency Advances comprising such Local Currency Borrowing and
(ii) in the case of such Bank, the Federal Funds Rate or the Agent's overdraft
cost, if higher. If such Bank shall repay to the Local Currency Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Local
Currency Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the Advance to be made by it as
part of any Local Currency Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Local Currency Advance on the date of
such Local Currency Borrowing, but no Bank shall be responsible for the failure
of any other Bank to make the Local Currency Advance to be made by such other
Bank on the date of any Local Currency Borrowing.
SECTION 2.03. THE B ADVANCES. (a) Each Bank severally agrees that
the Company and any Borrowing Subsidiary may make B
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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 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,
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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
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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 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
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(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.
(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
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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 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
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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, 1997, and on the
Termination Date. The facility 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 (Moody's)
Below A (S&P) and A2 (Moody's)
but
A- (S&P) OR 0.08%
A3 (Moody's)
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Below A- (S&P) and A3 (Moody's)
but 0.09%
BBB+ (S&P) OR
Baa1 (Moody's)
Below BBB+ (S&P) and Baa1 (Moody's)
but 0.11%
BBB (S&P) OR
Baa2 (Moody's)
Below BBB (S&P) and Baa2 (Moody's) 0.15%
but
BBB- (S&P) AND Baa3 (Moody's)
Below BBB- (S&P) or Baa3 (Moody's) 0.20%
If, during any period, the Company shall not have Credit Ratings from both S&P
and Moody's, 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 (Moody's) 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 Moody's 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 Moody's 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 for the Australian Local Currency Facility those fees as are
described in that certain letter agreement dated October __, 1997 (as 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. 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.
SECTION 2.06. REPAYMENT OF COMMITTED ADVANCES. Except as otherwise
provided in SECTION 2.13, each Borrower shall repay on the Termination Date the
principal amount of each A Advance
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made to it. Except as otherwise specified in SECTION 2.13, each Borrower shall
repay on the Termination Date (or on any earlier date specified in the Local
Currency Addendum relating to such Local Currency Advance) the principal amount
of each Local Currency Advance made to it.
SECTION 2.07. INTEREST ON COMMITTED ADVANCES. Each Borrower shall
pay interest on the unpaid principal amount of each Committed Advance made by
each Bank to such Borrower from the date of such Committed Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) BASE RATE ADVANCES. If such Committed 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 Committed 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
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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. "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 (Moody's) 0.280%
Below A (S&P) and A2
(Moody's) but
A- (S&P) OR A3 (Moody's) 0.290%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR Baa1 (Moody's) 0.335%
Below BBB+ (S&P) and Baa1 (Moody's)
but
BBB (S&P) OR Baa2 (Moody's) 0.390%
Below BBB (S&P) and Baa2 (Moody's)
but
BBB- (S&P) AND Baa3 (Moody's) 0.475%
Below BBB- (S&P) OR Baa3 (Moody's) 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
Moody's, 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 (Moody's)
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 Moody's 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 Moody's were one level
higher than the lower of the two Credit Ratings.
(c) EUROCURRENCY ADVANCES. If such Committed Advance is a
Eurocurrency Advance, a rate per annum equal at all times during the
Interest Period for such Committed Advance to the sum of the
Eurocurrency Rate
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for such Interest Period plus 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 (unless
such Eurocurrency Advance is a Local Currency Advance and the applicable
Local Currency Addendum specifies a different Applicable Margin or
Margins), 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 (Moody's) 0.155%
Below A (S&P) and A2 (Moody's)
but
A- (S&P) OR
A3 (Moody's) 0.165%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR
Baa1 (Moody's) 0.210%
Below BBB+ (S&P) and Baa1 (Moody's)
but
BBB (S&P) OR
Baa2 (Moody's) 0.265%
Below BBB (S&P) and Baa2 (Moody's)
but
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BBB- (S&P) AND
Baa3 (Moody's) 0.350%
Below BBB- (S&P) OR
Baa3 (Moody's) 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 Moody's, 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 (Moody's) 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 Moody's 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 Moody's were one level
higher than the lower of the two Credit Ratings.
(d) LOCAL CURRENCY ADVANCES OTHER THAN EUROCURRENCY ADVANCES. If
such Advance is a Local Currency Advance other than a Eurocurrency Advance,
a rate per annum calculated in the manner specified in the applicable Local
Currency Addendum, payable on the dates specified in such Local Currency
Addendum.
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 Committed 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 Committed
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 Committed 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 (a) any A Advance which is a
Eurocurrency Advance denominated in an Alternative Currency, the Euro-Agent, or
(b) any Local Currency Advance, the applicable Local Currency Agent) for the
account of such Bank on the dates specified for payment of interest for such
Advance in SECTION 2.07.
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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 A
Advances which are Eurocurrency Advances denominated in Dollars), the Euro-Agent
(in the case of A Advances which are Eurocurrency Advances denominated in any
Alternative Currency) and the applicable Local Currency Agent (in the case of
Local Currency Advances which are Eurocurrency Advances) timely information for
the purpose of determining each Adjusted CD Rate or Eurocurrency Rate, as
applicable. The Agent, Euro-Agent and Local Currency 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, the Euro-Agent or a Local Currency Agent shall, at
least one Business Day before the date of any requested Committed Borrowing or
the Conversion, Redenomination or continuation of any Committed Borrowing,
notify the Company and the Banks that either Reference Bank shall have failed 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 Committed Borrowing Advance as part of a
requested Committed 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) or if the request was for a Local Currency Advance
at the Eurocurrency Rate, a Floating Rate Advance bearing interest at such
other rate as may be specified in such event in any applicable Local
Currency Addendum, 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
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the Borrower and the Banks that the circumstances causing such suspension
no longer exist.
(c) If, with respect to any Eurocurrency Advances or Local Currency
Advances bearing interest at a Fixed Rate (unless the applicable Local Currency
Addendum has provided that this Section shall not apply to Local Currency
Advances under such Local Currency Addendum), the Majority Banks (or in the case
of Local Currency Advances, the Majority Local Currency Banks under the
applicable Local Currency Addendum) 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 Committed Borrowing, notify the
Agent that the Eurocurrency Rate (or any other requested Fixed Rate in the case
of Local Currency Advances) for any Interest Period for such Advances in a
particular currency will not adequately reflect the cost to such Majority Banks
(or Majority Local Currency Banks, as applicable) of making, funding or
maintaining their respective Eurocurrency Advances or Local Currency Advances
bearing interest at a Fixed Rate for such Interest Period, the Agent shall
forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance or Local Currency
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 Committed Advance as part of a requested Committed
Borrowing, such Advance shall be, a Eurocurrency Advance denominated in
Dollars (or, if the affected currency is Dollars, a Base Rate Advance) or,
if the request was for a Local Currency Advance at a Fixed Rate, a Floating
Rate Advance bearing interest at such other rate as may be specified in
such event in any applicable Local Currency Addendum, 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 or Local Currency
Advances as such Fixed Rate Advances 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 or Local Currency Advance
(unless the applicable Local Currency Addendum has provided that this
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Section shall not apply to Local Currency Advances under such Local Currency
Addendum), notify the Agent, the Euro-Agent and any applicable Local Currency
Agent that such Bank is not 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 or Local Currency
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 Committed Advance as part of
a requested Committed 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 Committed
Advances comprising part of such Committed Borrowing; and
(ii) the right of the Borrowers to request Eurocurrency Advances or
Local Currency Advances in such Alternative Currency from such Bank as part
of such Committed Borrowing or any other Committed Borrowing shall be
suspended until such Bank shall notify the Agent, the Euro-Agent, or the
applicable Local Currency Agent that the circumstances causing such
suspension no longer exist, and the Advance to be made by such Bank as
part of such Committed Borrowing (and the Advance to be made by such Bank
as part of any subsequent Committed 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 a part of such Committed 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 (other than a Local Currency
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
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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.
(f) Each of the Agent, the Euro-Agent and any Local Currency 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, the Euro-Agent or any Local
Currency 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, the
Euro-Agent or any Local Currency Agent to any liability.
(g) If the applicable Borrower shall fail to select the duration
of any Interest Period for any Fixed Rate 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 any applicable Local Currency Addendum,
or is not entitled to Convert, continue or Redenominate such Advances into or
as Fixed Rate 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 Floating
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
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Type having such Interest Period. On the date on which the aggregate unpaid
principal amount of Fixed Rate Advances comprising any Local Currency Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than $9,000,000
(or its equivalent in the relevant Alternative Currency), or such other minimum
amount for Borrowings of Fixed Rate Advances as has been set forth in the
applicable Local Currency Addendum, such Fixed Rate Advances shall automatically
Convert into Floating Rate Advances, and on and after such date the right of the
applicable Borrower to Convert such Advances into Advances other than Floating
Rate Advances shall terminate; PROVIDED, HOWEVER, that if and so long as each
such Fixed Rate Advance shall be of the same Type and have the same Interest
Period as Fixed Rate Advances comprising another Local Currency Borrowing or
other Local Currency Borrowings of such Borrower under such Local Currency
Addendum, and the aggregate unpaid principal amount of all such Fixed Rate
Advances shall equal or exceed $9,000,000 (or its equivalent in the relevant
Alternative Currency) or such other applicable minimum, the Borrower shall have
the right to continue all such Advances as, or to Convert such Advances into,
Fixed Rate 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)
and, if applicable any Local Currency Addendum, Convert all or any part of the
Committed Advances of one Type denominated in Dollars (or the relevant
Alternative Currency, in the case of Local Currency Advances) comprising the
same Committed Borrowing into Advances of another Type denominated in Dollars
(or the relevant Alternative Currency, in the case of Local Currency Advances)
or continue all or any part of the Committed Advances of one Type denominated in
Dollars comprising the same Committed Borrowing as Committed Advances of the
same Type denominated in Dollars (or the relevant Alternative Currency, in the
case of Local Currency Advances); PROVIDED, HOWEVER, that any such Conversion or
continuation of any Fixed Rate Advances shall be made on, and only on, the last
day of an Interest Period for such Fixed Rate Advances; PROVIDED FURTHER, that
any such Conversion or continuation of Committed Advances shall be in the
minimum amounts and increments specified in SECTION 2.01(b); and PROVIDED
FURTHER, that no Committed Advance may be Converted into or continued as, a
Fixed Rate 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 Committed Advances to be
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Converted, and (iii) if such Conversion is into Fixed Rate Advances, the
duration of the Interest Period for each such Committed 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, and to
the terms of the applicable Local Currency Addendum, if applicable, 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 or local time, as
applicable) on the proposed date of prepayment (or two Business Days prior to
such prepayment in the case of a Designated 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 or Floating Rate Advances comprising the same Local Currency
Borrowing in whole or ratably
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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 Fixed Rate Advances denominated in any Alternative Currency, the
Euro-Agent or the applicable Local Currency Agent, as applicable) by the Company
(on behalf of such Borrower) not later than 11:00 A.M. (London time or local
time, as applicable) three Business Days prior to the proposed date of
prepayment (or five Business Days prior to the proposed date of prepayment in
the case of a Designated 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 Fixed Rate
Advances comprising a Committed Borrowing in whole (and not in part), together
with accrued interest to the date of such prepayment on the principal amount
prepaid; PROVIDED, HOWEVER, that Fixed Rate Advances that are A Advances may be
prepaid ratably in part if such prepayment is a Designated Prepayment. In the
case of a Designated Prepayment which provides for a prepayment in part of an A
Borrowing, such prepayment shall be allocated only to the Local Currency Banks
under the Australian Local Currency Addendum and allocated among such Banks
according to their Local Currency Commitments under the Australian Local
Currency Addendum. In the case of a Committed Borrowing comprised of Base Rate
Advances or other Floating 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,
Adjusted CD Rate Advances, or other Fixed 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, Eurocurrency Advances,
or other Fixed Rate 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.
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(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.
(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
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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 Local Currency Advances or 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 Committed Advances into or to continue Committed Advances as, such Local
Currency Advances or 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 Local Currency Advances or 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 or the applicable Local Currency Agent, as applicable) 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 Local Currency Advances or 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 Local Currency Advance or Eurocurrency Advance into a Base Rate Advance,
or, if applicable and if permitted by applicable law, into a Floating Rate
Advance pursuant to the applicable Local Currency Addendum, and, in each case be
obligated to reimburse 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 Local Currency Advances or Eurocurrency Advances, as
applicable, of such Banks must be treated the same by the applicable Borrower
pursuant to this SECTION 2.13(b). Any Base Rate Advance or other Floating Rate
Advance arising by reason of this SECTION 2.13(b) shall have an Interest Period
assigned to it
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that ends on the date that the Local Currency Advance or 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 Local Currency Advance or
Eurocurrency Advance. Such Base Rate Advance or other Floating Rate Advance may
not be prepaid at any time prior to the date that the Local Currency Advance or
Eurocurrency Advances comprising a part of such Committed 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, or, in the case of Local Currency
Advances, at such other time and place as shall be specified in the applicable
Local Currency Addendum. The Agent, the Euro-Agent or the applicable Local
Currency Agent, as applicable, will give the Company prior notice of the due
date of the principal of any Committed 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, Euro-Agent or the applicable Local
Currency 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
applicable 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, under
any applicable Local Currency Addendum or under any Note held by such Bank, to
charge from time
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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 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,
Euro-Agent or the applicable Local Currency 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, Euro-Agent or the applicable Local Currency 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, Euro-Agent or the applicable Local Currency
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, Euro-Agent or the applicable Local
Currency 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,
Euro-Agent or the applicable Local Currency Agent, as applicable, each Bank
shall repay to the Agent, Euro-Agent or the applicable Local Currency 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, Euro-Agent
or the applicable Local Currency Agent, as applicable, at the Federal Funds
Rate.
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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 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 2.02A, SECTION 2.02B, SECTION 2.03(c)(i), SECTION 2.09, SECTION 2.10 or
SECTION 2.13 by the Euro-Agent, or by the applicable Local Currency Agent, in
the case of a Local Currency Advance, in each case, 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 2.02A, SECTION 2.02B,
SECTION 2.03(c)(i), SECTION 2.09, SECTION 2.10, SECTION 2.13 or this SECTION
2.16, with respect to any Borrowing of Fixed Rate Advances, 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; any such equivalent determined with respect to any
Borrowing of Floating Rate Advances under any Local Currency Addendum, unless
otherwise specified in such Local Currency Addendum (or unless an Interest
Period is assigned to
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any such Floating Rate Advance pursuant to SECTION 2.09(d) or SECTION 2.13, in
which case the preceding provisions of this sentence shall apply), shall be
deemed to remain in effect until the last Business Day of the month in which
such determination is made and shall be redetermined by the applicable Local
Currency Agent, in consultation with the Company, on such last Business Day of
such calendar month, and on the last Business Day of each succeeding month that
such Floating Rate Advances are outstanding.
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, the Euro-Agent, and each Local Currency Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank, the Agent, the Euro-Agent or such Local
Currency 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, the Euro-Agent,
or any Local Currency 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, the Euro-Agent or such Local Currency 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, under any Local Currency Addendum or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, any Local Currency Addendum or the Notes (hereinafter referred to
as "OTHER TAXES"). The Agent, Euro-Agent and any Local Currency Agent may
demand payment of, and seek recourse on,
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any Other Taxes from any Borrower, without any requirement that the Agent, the
Euro-Agent or such Local Currency Agent allocate the reimbursement obligation
for such Other Taxes among the Borrowers.
(c) Each Borrower will indemnify each Bank, the Agent, the Euro-Agent
and any Local Currency 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, the Euro-Agent or such Local Currency 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, the Euro-Agent or such Local
Currency Agent (as the case may be) makes written demand therefor.
(d) The Agent, Euro-Agent and any Local Currency Agent may, from time
to time, request that the Company furnish (and the Company shall, promptly
following any such request, furnish) to the Agent, the Euro-Agent or such Local
Currency 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) (i) On or prior to the Restatement Date (or, in the case of any
assignee party to an Assignment 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)(i), SECTION 2.17(a) shall
not apply with respect to any
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payments made to such Bank under this Agreement during the period that such
failure or deficiency shall continue, and the Borrowers, the Agent, the
Euro-Agent or any Local Currency 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.
(ii) On or prior to the date of any Local Currency Addendum (or, in
the case of any assignee party to an Assignment and Acceptance which would
result in such Bank's becoming a Local Currency Bank, on the effective date of
its becoming a "Bank" hereunder), each Bank which will be a Local Currency Bank
under such Local Currency Addendum which is organized under the laws of a
jurisdiction outside the jurisdiction in which Local Currency Advances are to be
made under such Local Currency Addendum shall provide the Local Currency Agent
and the Agent with the forms, if any, prescribed by the applicable governmental
agent of such Local Currency Country certifying such Bank's exemption from
withholding taxes imposed by such Local Currency Country with respect to all
payments to be made to such Bank under such Local Currency Addendum, and each
such Bank shall thereafter provide the Local Currency Agent and 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 Local Currency Bank that is
organized under the laws of a jurisdiction outside the applicable Local Currency
Country shall fail to deliver, or improperly delivers, the forms described in
this SECTION 2.17(f)(ii), SECTION 2.17(a) shall not apply with respect to any
payments made to such Bank under such Local Currency Addendum during the period
that such failure or deficiency shall continue, and the applicable Borrower, the
Agent, or Local Currency Agent shall be permitted to withhold Local Currency
Country federal, state and local income taxes from any payments made under such
Local Currency Addendum at the applicable statutory rate.
(iii) on the date of any Local Currency Addendum (or, in the case of
any assignee party to an Assignment and Acceptance which would result in such
Bank Becoming a Local Currency Bank, on the effective date of its becoming a
"Local Currency Bank" under such Local Currency Addendum), each Bank which will
be a Local Currency Bank under such Local Currency Addendum will, unless
otherwise provided in the Local Currency Addendum, be an Eligible Local Currency
Bank and shall so confirm in the Local Currency Addendum. If such confirmation
by such Local Currency Bank shall not be correct on such effective date, and as
a result thereof, the Borrowers, the Agent, the Euro-Agent or any Local Currency
Agent shall be required to withhold Local Currency Country federal, state or
local income taxes from any payments made under such Local Currency Addendum,
then during the period that such failure to qualify as an Eligible Local
Currency Bank
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shall continue, SECTION 2.17(a) shall not apply with respect to any payments
made to such Local Currency Bank under such Local Currency Addendum and the
applicable Borrower, the Agent, or Local Currency Agent shall be permitted to
withhold Local Currency Country federal, state and local income taxes, from any
payments made under such Local Currency Addendum at the applicable statutory
rate.
(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 (w) 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, or, if applicable, the effective lending rate of such Bank with respect
to Local Currency Advances in excess of the effective lending rate of the other
Banks party to the Local Currency Addendum under which such Local Currency
Advances are outstanding, 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; (x) 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 or Local
Currency Advances at such time (and the other Banks shall continue to be able to
make or maintain their corresponding Eurocurrency Advances at such time or the
other applicable Local Currency Banks shall continue to be able to make or
maintain their corresponding Local Currency Advances at such
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time) and the inability of such Bank or Local Currency Bank, as applicable, to
make or maintain such Eurocurrency Advances or Local Currency Advances continues
for 30 or more days after the receipt by such Bank from the Company of written
notice of such inability and the Company's request that such Bank alleviate such
inability; (y) 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 equaling or exceeding 51% of the
Total Commitment have agreed to extend their Commitments pursuant to such
request; or (z) any Local Currency Bank under a Local Currency Addendum ceases
to be an Eligible Local Currency Bank under such Local Currency Addendum, 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 and/or Local Currency Commitment of such Bank and to
purchase the A Note and/or any Local Currency Advances 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 and/or Local Currency 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,
to the extent of the rights and benefits assigned, such Bank shall no longer be
a party hereto or to the applicable Local Currency Addendum or have any rights
or benefits hereunder or under said Local Currency Addendum (except for rights
or benefits that such Bank would retain hereunder upon termination of this
Agreement) and the replacement Bank shall succeed to the rights and benefits,
and shall assume the obligations, of such Bank hereunder, under such A Note and
under any Local Currency Addendum to which such Bank is a party.
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
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"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 within two
Business Days prior to such day, or dated as of the Restatement Date in the case
of (1) the items specified in (c)(i), (e), and (f)(i), (2) the items specified
in (b), (c)(ii), (c)(iii), (d)(ii), and (f) with respect to Ecolab PTY Limited
and (3) 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.
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(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, 1996 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 COMMITTED BORROWING. The
obligation of each Bank to make a Committed Advance on the occasion of each
Committed Borrowing pursuant to SECTION 2.02 or 2.02B (including the initial
Committed Borrowing) by each Borrower (including each Borrowing Subsidiary)
shall be subject to the further conditions precedent that on the date of such
Committed 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 Committed 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 Committed
Borrowing, before and after giving effect to such Committed Borrowing and
to the application of the proceeds therefrom, as though made on and as of
such date, and
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(ii) No event has occurred and is continuing, or would result from
such Committed 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 Committed 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 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 a Committed Advance on the
occasion of any Committed Borrowing pursuant to SECTION 2.02 or 2.02B which
would increase the aggregate outstanding amount in any currency of Committed
Advances owing to such Bank from all Borrowers over the aggregate amount of
Committed Advances owing to such Bank in such currency outstanding immediately
prior to the making of such Committed Advance shall be subject to the further
conditions precedent that on the date of such Committed 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 Committed Borrowing, before and after giving effect
to such Committed 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 Committed 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
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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 true (and each of the
giving of the applicable Notice of B Borrowing and the acceptance by such
Borrower of the proceeds of such B Borrowing shall constitute a
representation and warranty by the Company that on the date of such B
Borrowing such statements are true):
(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.
Section 3.05. CONDITIONS PRECEDENT TO INITIAL LOCAL CURRENCY
BORROWING UNDER ANY LOCAL CURRENCY ADDENDUM. The obligation of each Local
Currency Bank under any Local Currency Addendum to make its initial Local
Currency Advance under such Local Currency Addendum is subject to the additional
conditions precedent that the Agent shall have received on or before the day of
such initial Local Currency Advances in sufficient copies for each such Local
Currency Bank:
(a) An election to Participate executed by the applicable Borrowing
Subsidiary and by the Company.
(b) A Local Currency Addendum executed by such Borrowing Subsidiary,
the Company, the applicable Local Currency Agent and the Local Currency Banks
party thereto providing for a Local Currency Facility Maximum Borrowing Amount
at least equal to such initial Local Currency Borrowing.
(c) Such other documents that the applicable Local Currency Agent
shall reasonably request.
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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, its Notes and each Local Currency Addendum 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, the Notes, or any Local Currency Addendum 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 and any Local Currency
Addendum 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, 1996, and the related
statements of income, cash flows and shareholders' equity of the Company
and its Consolidated Subsidiaries for 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.
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(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.
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(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, 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, 1996 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,
its Notes, and any Local Currency Addendum to which it is a party, and the
performance by it of this Agreement, its Notes, and any Local Currency
Addendum to which it is a party, 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
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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 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;
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(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
& Lybrand 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 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
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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 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
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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
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Subsidiaries of any event set forth in clause (A) or (B) of this
SECTION 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
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(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 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:
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(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 majority of its assets (other than Margin Stock) to any other
Person or permit any Significant Subsidiary or Borrowing 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
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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.
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, or
of any Advance not evidenced by a Note, when due; or
(b) Any Borrower shall fail to pay any fee under this Agreement
or any interest on any Note (or on any Advance not evidenced by a
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
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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 or consisting of Advances not 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 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, any of its Significant Subsidiaries or any
Borrowing Subsidiary shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for
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the benefit of creditors; or any proceeding shall be instituted by or
against the Company, any of its Significant Subsidiaries or any Borrowing
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any
substantial part of its property, and in the event of any such proceeding
instituted against the Company, any of its Significant Subsidiaries or any
Borrowing Subsidiary, 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, such Significant Subsidiary or such Borrowing Subsidiary;
or the Company, any of its Significant Subsidiaries or any Borrowing
Subsidiary 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 request, or may with the consent, of
the Majority Banks, by notice to the Company, declare the Notes, any Advances
not evidenced by Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Notes, any
Advances not evidenced by
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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, any Advances not evidenced by 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
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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 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.
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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 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
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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.
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 (and each Advance made to any Borrowing
Subsidiary not evidenced by a Note) pursuant to this Agreement, and the due and
punctual payment of all other amounts payable by any Borrowing Subsidiary under
this Agreement or any Local Currency Addendum. 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 and the
terms of any applicable Local Currency Addendum. If payment has become due
under this guaranty as provided in the preceding sentence, the Company further
agrees that if any such payment in respect of any guaranteed amounts shall be
due in a currency other than Dollars and/or at a place of payment other than New
York and if, by reason of any applicable law, disruption of currency or foreign
exchange markets, war or civil disturbance or similar event, payment of such
amounts in such currency or such place of payment shall be impossible or, in the
judgment of any applicable Bank, not consistent with the protection of its
rights or interests, then, at the election of any applicable Bank, the Company
shall
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make payment of such amount in Dollars (based upon the applicable exchange rate
in effect on the date of payment) and/or in New York.
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, any Note or any Local Currency
Addendum or the exchange, release or non-perfection of any
collateral security therefor;
(ii) any modification or amendment of or supplement to this
Agreement, any Note or any Local Currency Addendum:
(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 Local Currency 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, any Note or any Local Currency
Addendum, 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 Advance or any other amount
payable by it under this Agreement; or
(vi) any other act or omission to act or delay of any kind
by any Borrowing Subsidiary, the Agent, the Euro-Agent, any Local
Currency Agent, any Bank or any other Person or any other
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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, all Advances
not evidenced by 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 on any Advance not evidenced by a 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 Local Currency 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 and any Local Currency Addendum to which such Borrowing
Subsidiary is a party 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.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, the A Notes or any Local Currency Addendum, nor
consent to any departure by any Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by (x) the Majority
Banks, in the case of this Agreement or the A Notes, or (y) the Majority Local
Currency Banks under any Local Currency Addendum, in the case of such Local
Currency Addendum, 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 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, or of the
Local Currency Commitments, or the unpaid principal amount of the Local Currency
Advances, 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 Committed
Advances held by Banks, or, if no such principal amount is then outstanding,
Banks having at least 65% of the Commitments; (c) no amendment, waiver or
consent shall, unless in writing and signed by the Agent and/or the Euro-Agent
and/or any Local Currency 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,
and/or such Local Currency Agent, as applicable, under this Agreement or any
applicable Local Currency Addendum; and (d) no amendment, waiver or consent
shall, unless in writing and signed by all of the Local Currency Banks party to
a Local Currency Addendum, do
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any of the following: (i) waive any of the conditions specified in SECTION 3.05;
(ii) increase the Local Currency Commitments of the Local Currency Banks
thereunder or subject such Local Currency Banks to any additional obligations;
(iii) reduce the principal of, or interest on, any Local Currency Advances made
pursuant thereto; (iv) postpone any date fixed for any payment of principal of,
or interest on, any Local Currency Advance payable thereunder;
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, St. Paul,
Minnesota 55102, Attention: Treasurer, Telecopier No. 612-293-2401, 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 pursuant to which it became a party hereto;
(iv) if to the Agent, at its address at Bank Loan Syndications, Two
Penns Way, Suite 200, New Castle, Delaware 19720, Attention: Amy Goretzka,
Telecopier No. 302-894-6120, with a copy to Citicorp Securities, Inc., 200
South Wacker Drive, Chicago, Illinois 60606, Attention: Lesley Noer,
Telecopier No. 312-993-1050;
(v) if to the Euro-Agent, at its address at Riverdale House, 68
Molesworth Street, Lewisham SE13 7EU, England, Attention: Andrew Bennett,
Loans Agency, Telecopier No. 0171-500-4482, Telex No. 299831 CIBLA; and
(vi) if to any Local Currency Agent, at its address set forth in the
applicable Local Currency Addendum;
or, as to the Company, the Agent, the Euro-Agent or any Local Currency 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, the
Euro-Agent and any Local Currency Agent. All such notices and
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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, or to any Local Currency Agent
pursuant to the Local Currency Addendum to which it is a party, shall not be
effective until received by the Agent, the Euro-Agent or such Local Currency
Agent, as applicable.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Bank or the Agent, Euro-Agent or any Local Currency 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, the
Euro-Agent and any Local Currency 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, the Euro-Agent and any Local Currency Agent with respect
thereto and with respect to advising the Agent, the Euro-Agent and any Local
Currency Agent as to rights and responsibilities under this Agreement, and all
costs and expenses, if any, of the Agent, the Euro-Agent, any Local Currency
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, any Local Currency
Addendum 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 Fixed Rate 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 and Advances not evidenced by 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 Agent), pay to the
Agent for the account of such Bank any amounts required to compensate such Bank
for any
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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, the Notes
held by such Bank, and any Local Currency Addendum to which such Bank is a
party, irrespective of whether or not such Bank shall have made any demand under
this Agreement, any such Note or such Local Currency Addendum 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, Euro-Agent or any
Local Currency Agent hereunder, under the Notes held by such Bank, or under any
Local Currency Addendum shall, notwithstanding any judgment in any
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Other Currency, be discharged only to the extent that on the Business Day
following receipt by such Bank, the Agent, Euro-Agent or such Local Currency
Agent (as the case may be) of any sum adjudged to be so due in such Other
Currency such Bank, the Agent, Euro-Agent or such Local Currency 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, Euro-Agent or such Local Currency 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, the Agent, Euro-Agent
or such Local Currency Agent (as the case may be) against such loss, and if the
amount of the Original Currency so purchased exceeds the sum originally due to
any Bank, the Agent, Euro-Agent or such Local Currency Agent (as the case may
be) in the Original Currency, such Bank or the Agent, Euro-Agent or such Local
Currency 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
and, on a percentage basis equal to the percentage of the Commitment being
assigned, under any Local Currency Addendum (including, without limitation, all
or a portion of its Commitment, any Local Currency 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
unless the Borrower and the Agent otherwise consent, (iii) each such assignment
shall be to an
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Eligible Assignee, and in the case of an assignment of rights and obligations
under a Local Currency Addendum, each such assignment shall be to an entity that
qualifies as an Eligible Local Currency Bank under the terms of such Local
Currency Addendum, 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 (and such other document or documents as may be
required by any applicable Local Currency Addendum), 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 any Local Currency Addendum, if applicable, 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 under any such Local Currency Addendum 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 under any such Local
Currency Addendum (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 and to any such Local
Currency Addendum).
(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
any Local Currency Addendum 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 Local Currency
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Addendum or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, and any
applicable Local Currency Addendum, 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 and, if applicable, an Eligible Local Currency Bank; (vi) such
assignee appoints and authorizes each of the Agent, the Euro-Agent and any Local
Currency Agent, if applicable, to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent, the
Euro-Agent, and any such Local Currency Agent, as applicable, by the terms
hereof and of any applicable Local Currency Addendum, 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 and of any applicable Local Currency Addendum 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, any Local Currency 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 (x) it is an Eligible Assignee,
and, (y) in the case of an assignment of rights and obligations under a Local
Currency Addendum, representing that it is (or its Affiliate, branch or agency
which will be the Local Currency Bank is) an Eligible Local Currency Bank under
the terms of such Local Currency Addendum, 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
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the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers.
(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
and, on a percentage basis equal to the percentage of the Commitment so
participated, any applicable Local Currency Addendum (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) and any applicable Local Currency Addendum 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 and the maker of any Advance for all purposes
of this Agreement, (iv) the Borrowers, the Agent, the Euro-Agent, any Local
Currency 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
applicable Local Currency Addendum, 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 Advance 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
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Subsidiary, any other Bank, the Agent, the Euro-Agent or any Local Currency
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 1633 Broadway, New York, New York 10019, United
States, as its agent to receive on behalf of such Borrowing Subsidiary and its
property service of copies of the summons 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, any Local Currency 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
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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 Local Currency 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 the Advances, to the Notes, this Agreement, any
Local Currency Addendum 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 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, the Agent, the Euro-Agent or any Local Currency Agent or to their
respective accountants; (iii) bank examiners and auditors; (iv) the Agent, the
Euro-Agent, any Local Currency 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)
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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, EACH LOCAL CURRENCY 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 October 17, 1997, 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 and a counterpart of the letter agreement dated as
of October 17, 1997, 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/Daniel J. Schmechel
------------------------------
Assistant Treasurer
CITIBANK, N.A.,
as Administrative Agent
By: /s/Anita J. Brickell
------------------------------
Attorney-In-Fact
CITIBANK INTERNATIONAL PLC,
as Euro-Agent
By: /s/Ken Purchase
------------------------------
Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By: /s/Christopher C. Kunhardt
------------------------------
Vice President
SIGNATURE PAGE 1
<PAGE>
Banks
-----
Commitment
- ----------
$53,000,000 CITIBANK, N.A.
By/s/Anita J. Brickell
------------------------------
Attorney-In-Fact
$47,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By/s/Christopher C. Kunhardt
------------------------------
Title: Vice President
$43,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By/s/J. Garland Smith
------------------------------
Title: Managing Director
$33,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By/s/Paul Karlin
------------------------------
Title: Asst. Vice President
By/s/William Binder
------------------------------
Title: Vice President
$33,000,000 CREDIT SUISSE FIRST BOSTON
By/s/Lynn Allegaert
------------------------------
Title: Vice President
By/s/P. P. Lepoi
------------------------------
Title: Associate
SIGNATURE PAGE 2
<PAGE>
$33,000,000 NATIONSBANK, N.A.
By/s/Valerie C. Miller
------------------------------
Title: Sr. Vice President
$33,000,000 WACHOVIA BANK, N.A.
By/s/Jim A. Robertson
------------------------------
Title: Sr. Vice President
$275,000,000 Total of the Commitments
<PAGE>
ECOLAB PTY LIMITED (ACN 000 449 990)
LOCAL CURRENCY ADDENDUM
AUSTRALIAN DOLLAR ADDENDUM dated as of October 17, 1997, to the Credit
Agreement (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Addendum, the following
terms shall have the meanings specified below:
"AUSTRALIAN DOLLARS" means the lawful currency of Australia.
"BORROWING SUBSIDIARY" means Ecolab PTY Limited (ACN 000 449 990), a
company incorporated in New South Wales.
"BBSY BID RATE" means, with respect to any Local Currency Advance for
the relevant Interest Period, the average rate (rounded upwards to two decimal
places) determined by the Local Currency Agent to be the Bid Rate for bills of
exchange quoted on the Reuters page "BBSY" headed Bank Bid Swap Reference Rate,
or another page that replaces the "BBSY" page on that system to display average
bid rates for bank accepted bills of exchange, and set at approximately 10:00
a.m. (Sydney time) on the first day of such Interest Period, and which bills of
exchange have a tenor approximately equal to such Interest Period; PROVIDED,
HOWEVER, if in respect of any Interest Period the BBSY Bid Rate cannot be
determined in accordance with the foregoing procedures, or there is a manifest
error in the calculations of that rate or that rate is not displayed by 10:30
a.m. (Sydney time) on the first day of the relevant Interest Period, then the
"BBSY Bid Rate" for that day or Interest Period shall be the rate determined by
the Local Currency Agent, in good faith to be the appropriate rate, having
regard, to the rates otherwise bid for bills of exchange of that tenor at or
around that time.
"CREDIT AGREEMENT" means the Credit Agreement dated as of September
29, 1993, as amended and restated as of October 17, 1997, among Ecolab Inc., the
Borrowing Subsidiaries from time to time party thereto, the financial
institutions from time to time party thereto as Banks, Citibank, N.A., as
Administrative Agent, Citibank International PLC, as Euro-Agent and Morgan
Guaranty Trust Company of New York, as Co-Agent, and as the same may be amended,
waived, modified or restated from time to time.
"ELIGIBLE LOCAL CURRENCY BANK" means any Local Currency Bank meeting
the eligibility criteria set forth in SCHEDULE III.
<PAGE>
"LOCAL CURRENCY ADVANCE" means any Advance, denominated in Australian
Dollars (or "A"), made to the Borrowing Subsidiary or the Company pursuant to
SECTIONS 2.02A and 2.02B of the Credit Agreement and this Addendum. A Local
Currency Advance shall bear interest at the rate specified in SCHEDULE II.
"LOCAL CURRENCY BANK" means each Bank listed on the signature pages of
this Addendum, or which becomes a party hereto pursuant to an Assignment and
Acceptance.
SECTION 1.02. TERMS GENERALLY. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have the same meanings in this
Addendum. Wherever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Sections and Schedules shall be deemed
references to Sections of and Schedules to this Addendum unless the context
shall otherwise require.
ARTICLE II
THE CREDITS
SECTION 2.01. LOCAL CURRENCY ADVANCES. (a) This Addendum (as the
same may be amended, waived, modified or restated from time to time) is a "Local
Currency Addendum" as defined in the Credit Agreement and is, together with the
borrowings made hereunder, subject in all respects to the terms and provisions
of the Credit Agreement except to the extent that the terms and provisions of
the Credit Agreement are modified by or are inconsistent with this Addendum, in
which case this Addendum shall control. The Local Currency Banks party to this
Addendum are set forth on SCHEDULE I.
(b) Any modifications to the interest payment dates, Interest
Periods, interest rates and any other special provisions applicable to Local
Currency Advances under this Addendum are set forth on SCHEDULE II. If SCHEDULE
II states "None" with respect to any item listed thereon, then the corresponding
provisions of the Credit Agreement, without modification, shall govern this
Addendum and the Local Currency Advances made pursuant to this Addendum.
(c) Any special borrowing procedures or funding arrangements for
Local Currency Advances under this Addendum, any provisions for the issuance of
promissory notes to evidence the Local Currency Advances made hereunder and any
additional information requirements applicable to Local Currency Advances under
this Addendum are set forth on SCHEDULE III. If no such special procedures,
funding arrangements, provisions or additional requirements are set forth on
SCHEDULE III, then the corresponding procedures, funding arrangements,
provisions and information
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<PAGE>
requirements set forth in the Credit Agreement shall govern this Addendum.
SECTION 2.02. MAXIMUM BORROWING AMOUNTS. (a) The Local Currency
Commitment for each Local Currency Bank party to this Addendum is set forth on
SCHEDULE I. The Local Currency Facility Aggregate Commitment is set forth on
SCHEDULE I.
(b) Upon at least ten (10) Business Days prior irrevocable written
notice to the Agent, the Company may from time to time permanently reduce the
Local Currency Commitments under this Addendum in whole, or in part ratably
among the Local Currency Banks, in an aggregate minimum amount of the Australian
Dollar equivalent of $1,000,000, and integral multiples of the Australian Dollar
equivalent of $1,000,000 in excess thereof; PROVIDED, HOWEVER, that the amount
of the Local Currency Commitments may not be reduced below the aggregate
principal amount of the outstanding Local Currency Advances with respect
thereto. Any reduction in the Local Currency Commitments shall be an automatic
reduction of the Local Currency Facility Aggregate Commitment. Any such
reduction shall be allocated pro rata among all the Local Currency Banks party
to this Addendum by reference to their Local Currency Commitments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower party hereto makes and confirms each representation and
warranty applicable to each Borrower or any of its Subsidiaries contained in
ARTICLE IV of the Credit Agreement. Each Borrower party hereto represents and
warrants to each of the Local Currency Banks party to this Addendum that no
Default or Events of Default has occurred and is continuing, and no Default or
Events of Default shall arise as a result of the making of Local Currency
Advances hereunder or any other transaction contemplated hereby. Each Borrower
represents and warrants that it is not entering into this Addendum in the
capacity as trustee of any trust or settlement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. AMENDMENT; TERMINATION. (a) This Addendum (including
the Schedules hereto) may not be amended without the prior written consent of
the Majority Local Currency Banks hereunder, but subject to the provisions of
SECTION 9.01 of the Credit Agreement; PROVIDED, HOWEVER, that this
Section 4.01(a) shall not restrict assignments and participations pursuant to
SECTION 4.02.
3
<PAGE>
(b) This Addendum may not be terminated without the prior written
consent of each Local Currency Bank party hereto, the Company and each Borrower
party hereto unless there are no Local Currency Advances outstanding hereunder,
in which case no such consent of any Local Currency Bank shall be required;
PROVIDED, HOWEVER, that this Addendum shall terminate on the date that the
Credit Agreement terminates in accordance with its terms.
SECTION 4.02. ASSIGNMENTS. SECTION 9.08 of the Credit Agreement
shall apply to assignments by Local Currency Banks of obligations, Commitments
and Advances hereunder; PROVIDED, HOWEVER, that a Local Currency Bank may not
assign any obligations, Commitments or rights hereunder to any Person who is not
(or does not simultaneously become) a Bank under the Credit Agreement.
SECTION 4.03. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrowing Subsidiary under this Addendum, at 6 Hudson
Avenue, Castle Hill, New South Wales 2154, Attention: Finance Director
(Telecopy No. 612-9899-3105) with a copy to the Company at its address and
telecopy number referenced in SECTION 9.02 of the Credit Agreement;
(b) if to the Company, at its address and telecopy number referenced
in SECTION 9.02 of the Credit Agreement;
(c) if to the Local Currency Agent, at Citisecurities Limited (ACN 008
489 610), Level 10, Citibank Centre, 1 Margaret Street, Sydney, New South
Wales 2000, Attention: Manager, Agency Division, (Telecopy No.: 612-9262-
2520) with a copy to the Agent at its address and telecopy number
referenced in SECTION 9.02 of the Credit Agreement; and
(d) if to a Local Currency Bank, at its address (and telecopy number)
set forth in SCHEDULE I or in the Assignment and Acceptance pursuant to
which such Local Currency Bank became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 4.04. RATIFICATION OF GUARANTY. By its execution of this
Addendum, the Company ratifies and confirms its guaranty contained in ARTICLE
VIII of the Credit Agreement with
4
<PAGE>
respect to the Local Currency Advances made pursuant to this Addendum which
Guaranty remains in full force and effect
SECTION 4.05. SHARING OF PAYMENTS, ETC. If any Local Currency Bank
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Local Currency Advances
made by it (other than pursuant to SECTION 2.08, 2.12 or 2.17 of the Credit
Agreement) in excess of its ratable share of payments on account of the Local
Currency Advances obtained by all the Local Currency Banks, such Local Currency
Bank shall forthwith purchase from the other Local Currency Banks such
participations in the Local Currency Advances made by them as shall be necessary
to cause such purchasing Local Currency 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 Local Currency Bank, such
purchase from each Local Currency Bank shall be rescinded and such Local
Currency Bank shall repay to the purchasing Local Currency Bank the purchase
price to the extent of such recovery together with an amount equal to such Local
Currency Bank's ratable share (according to the proportion of (i) the amount of
such Local Currency Bank's required repayment to (ii) the total amount so
recovered from the purchasing Local Currency Bank) of any interest or other
amount paid or payable by the purchasing Local Currency Bank in respect of the
total amount so recovered. Each Borrower agrees that any Local Currency Bank so
purchasing a participation from another Local Currency Bank pursuant to this
SECTION 4.05 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 Local Currency Bank were the direct creditor
of such Borrower in the amount of such participation.
SECTION 4.06. APPLICABLE LAW. THIS ADDENDUM SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.07. ELIGIBLE LOCAL CURRENCY BANKS. Each Local Currency
Bank confirms that on the date of this Addendum it is an Eligible Local Currency
Bank, and agrees that it will promptly notify the Local Currency Agent, the
Agent and the Company if at any time in the future it determines that it has
ceased to be an Eligible Local Currency Bank.
SECTION 4.08 EXECUTION IN COUNTERPARTS. This Addendum 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.
5
<PAGE>
ARTICLE V
THE LOCAL CURRENCY AGENT
SECTION 5.01 APPOINTMENT; NATURE OF RELATIONSHIP. Citisecurities
Limited (ACN 008 489 610) is appointed by the Local Currency Banks as the Local
Currency Agent hereunder, and each of the Local Currency Banks irrevocably
authorizes the Local Currency Agent to act as the contractual representative of
such Local Currency Bank with the rights and duties expressly set forth herein
and in the Credit Agreement applicable to the Local Currency Agent. The Local
Currency Agent agrees to act as such contractual representative upon the express
conditions contained in this ARTICLE V. Notwithstanding the use of the defined
term "Local Currency Agent," it is expressly understood and agreed that the
Local Currency Agent shall not have any fiduciary responsibilities to any Local
Currency Bank or other Bank by reason of this Addendum and that the Local
Currency Agent is merely acting as the representative of the Local Currency
Banks with only those duties as are expressly set forth in this Addendum and the
Credit Agreement. In its capacity as the Local Currency Banks' contractual
representative, the Local Currency Agent (i) does not assume any fiduciary
duties to any of the Banks, (ii) is a "representative" of the Local Currency
Banks within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Addendum and the Credit Agreement.
Each of the Banks agrees to assert no claim against the Local Currency Agent on
any agency theory or any other theory of liability for breach of fiduciary duty,
all of which claims each Bank waives.
SECTION 5.02 POWERS. The Local Currency Agent shall have and may exercise
such powers under this Addendum and the Credit Agreement as are specifically
delegated to the Local Currency Agent by the terms of each thereof, together
with such powers as are reasonably incidental thereto. The Local Currency Agent
shall have no implied duties or fiduciary duties to the Banks, or any obligation
to the Banks to take any action hereunder or under the Credit Agreement except
any action specifically provided by this Addendum or the Credit Agreement
required to be taken by the Local Currency Agent.
SECTION 5.03 GENERAL IMMUNITY. Neither the Local Currency Agent nor any
of its respective directors, officers, agents or employees shall be liable to
any of the Borrowers or any Bank for any action taken or omitted to be taken by
it or them hereunder or under the Credit Agreement or in connection herewith or
therewith except to the extent such action or inaction is found in a final non-
appealable judgment by a court of competent jurisdiction to have arisen solely
from the gross negligence or willful misconduct of such Person.
6
<PAGE>
SECTION 5.04 NO RESPONSIBILITY FOR ADVANCES, CREDITWORTHINESS, COLLATERAL,
RECITALS, ETC. Neither the Local Currency Agent nor any of its respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with this Addendum or any borrowing hereunder;
(ii) the performance or observance of any of the covenants or agreements of any
obligor under this Addendum; (iii) the satisfaction of any condition specified
in ARTICLE IV to the Credit Agreement; (iv) the existence or possible existence
of any Default or Event of Default or (v) the validity, effectiveness or
genuineness of the Credit Agreement, this Addendum, or any other instrument or
writing furnished in connection therewith. The Local Currency Agent shall not
be responsible to any Bank for any recitals, statements, representations or
warranties herein or in the Credit Agreement, for the perfection or priority of
any of the Liens on any of the Collateral, or for the execution, effectiveness,
genuineness, validity, legality, enforceability, collectibility, or sufficiency
of this Addendum or the transactions contemplated hereby or thereby, or for the
financial condition of the Company or any of its Subsidiaries.
SECTION 5.05 ACTION ON INSTRUCTIONS OF LOCAL CURRENCY LENDERS. The Local
Currency Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under the Credit Agreement in accordance with written
instructions signed by Local Currency Banks with not less than 51% of the Local
Currency Commitments (except with respect to actions that require the consent of
all of the Banks as provided in SECTION 9.01 of the Credit Agreement), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks. The Local Currency Agent shall be fully justified
in failing or refusing to take any action hereunder and under the Credit
Agreement unless it shall first be indemnified to its satisfaction by the Banks
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
SECTION 5.06 EMPLOYMENT OF AGENTS AND COUNSEL. The Local Currency Agent
may execute any of its duties hereunder and under the Credit Agreement by or
through employees, agents, and attorneys-in-fact, and shall not be answerable to
the Banks, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Local Currency Agent shall be entitled
to advice of counsel concerning the contractual arrangement among the Local
Currency Agent and the Banks, as the case may be, and all matters pertaining to
its duties hereunder and under the Credit Agreement.
SECTION 5.07 RELIANCE ON DOCUMENTS; COUNSEL. The Local Currency Agent
shall be entitled to rely upon any Note, notice,
7
<PAGE>
consent, certificate, affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Local Currency Agent, which counsel may be employees of
the Local Currency Agent.
SECTION 5.08 THE LOCAL CURRENCY AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Local Currency Banks agree to reimburse and indemnify the Local Currency
Agent ratably in proportion to their respective Local Currency Commitments (i)
for any amounts not reimbursed by the Borrowers for which the Local Currency
Agent is entitled to reimbursement or indemnification by the Borrowers hereunder
or under the Credit Agreement, (ii) for any other expenses incurred by the Local
Currency Agent on behalf of the Local Currency Banks, in connection with the
preparation, execution, delivery, administration and enforcement of the Addendum
including as a result of a dispute among the Local Currency Banks or between any
Local Currency Bank and the Agent or the Local Currency Agent, and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Local Currency Agent in any way
relating to or arising out of the Addendum, the Credit Agreement or any other
document delivered in connection therewith or the transactions contemplated
hereby or thereby, or the enforcement of any of the terms thereof or of any such
other documents, including as a result of a dispute among the Banks or between
any Bank and the Agent or the Local Currency Agent, provided that no Bank shall
be liable for any of the foregoing to the extent any of the foregoing is found
in a final non-appealable judgment by a court of competent jurisdiction to have
arisen solely from the gross negligence or willful misconduct of the Local
Currency Agent.
SECTION 5.09 RIGHTS AS A BANK. With respect to its Commitment, Local
Currency Commitment, Advances made by it, and any Notes issued to it in its
individual capacity, the Local Currency Agent shall have the same rights and
powers hereunder and under the Credit Agreement as any Bank and may exercise the
same as through it were not the Local Currency Agent, and the term "Bank" or
"Banks" or "Local Currency Bank" or "Local Currency Banks", as applicable,
shall, unless the context otherwise indicates, include the Local Currency Agent
in its individual capacity. The Local Currency Agent may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Addendum or the Credit
Agreement, with the Company or any of its Subsidiaries in which such Person is
not prohibited hereby from engaging with any other Person.
8
<PAGE>
SECTION 5.10 BANK CREDIT DECISION. Each Local Currency Bank acknowledges
that it has, independently and without reliance upon the Local Currency Agent or
any other Local Currency Bank and based on the financial statements prepared by
the Company and the Borrowers and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Addendum and the Credit Agreement. Each Local Currency Bank also acknowledges
that it will, independently and without reliance upon the Local Currency 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 Addendum and the Credit Agreement.
SECTION 5.11 SUCCESSOR LOCAL CURRENCY AGENT. The Local Currency Agent may
resign at any time by giving written notice thereof to the Agent, the Local
Currency Banks and the Company. Upon any such resignation, the Majority Local
Currency Banks, with the consent of the Agent, shall have the right to appoint,
on behalf of the Borrowers and the Banks, a successor Local Currency Agent. If
no successor Local Currency Agent shall have been so appointed by the Majority
Local Currency Banks and shall have accepted such appointment within thirty days
after the retiring Local Currency Agent's giving notice of resignation, then the
retiring Local Currency Agent may appoint, on behalf of the Borrowers and the
Banks, a successor Local Currency Agent. Notwithstanding anything herein to the
contrary, so long as no Default or Event of Default has occurred and is
continuing, each such successor Local Currency Agent shall be subject to
approval by the Company, which approval shall not be unreasonably withheld.
Such successor Local Currency Agent shall be a commercial bank having capital
and retained earnings of at least $250,000,000. Upon the acceptance of any
appointment as the Local Currency Agent hereunder by a successor Local Currency
Agent, such successor Local Currency Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Local
Currency Agent, and the retiring Local Currency Agent shall be discharged from
its duties and obligations hereunder and under the Credit Agreement. After any
retiring Local Currency Agent's resignation hereunder as Local Currency Agent,
the provisions of this ARTICLE V shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Local Currency Agent hereunder and under the Credit Agreement.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as a deed by their duly authorized officers, all as of the date
and year first above written.
Executed as a deed.
ECOLAB INC.
By:/s/Daniel J. Schmechel
--------------------------------
Name: Daniel J. Schmechel
Title: Assistant Treasurer
SIGNED, SEALED AND DELIVERED BY Daniel J.
Schmechel as attorney for Ecolab PTY Limited (ACN
000 449 990) under power of attorney dated
September 26, 1997 in the presence of
/s/Kenneth A. Iverson
-----------------------------------
Witness
Kenneth A. Iverson
-----------------------------------
Name
1565 Red Cedar Rd., Eagan, MN
-----------------------------------
Address
Attorney
-----------------------------------
Occupation
/s/Daniel J. Schmechel
-----------------------------------
By executing this deed the attorney states that
the attorney has received no notice of revocation
of the power of attorney
S-1
<PAGE>
CITIBANK, N.A., as the Agent
By:/s/Anita J. Brickell
--------------------------------
Name: Anita J. Brickell
Title: Attorney-In-Fact
S-2
<PAGE>
CITISECURITIES LIMITED (ACN 008 489
610), as the Local Currency Agent
By:/s/Anthony Cohen
--------------------------------
Name: Anthony Cohen
Title: Vice President
By:/s/Celle Haguine
--------------------------------
Name: Celle Haguine
Title: Asst. Vice President
S-3
<PAGE>
CITIBANK, N.A.
By:/s/Anita J. Brickell
--------------------------------
Name: Anita J. Brickell
Title: Attorney-In-Fact
S-4
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:/s/Christopher C. Kunhardt
--------------------------------
Name: Christopher C. Kunhardt
Title: Vice President
S-5
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/J. Garland Smith
--------------------------------
Name: J. Garland Smith
Title: Managing Director
S-6
<PAGE>
CREDIT SUISSE FIRST BOSTON
By:/s/Lynn Allegaert
--------------------------------
Name: Lynn Allegaert
Title: Vice President
By:/s/P. P. Lepoi
--------------------------------
Name: P. P. Lepoi
Title: Associate
S-7
<PAGE>
SCHEDULE I
to Local Currency Addendum
Local Currency Banks
Local Currency Commitments
Local Currency Facility Aggregate Commitment
Applicable Lending Office
- --------------------------------------------------------------------------------
Local Currency Bank Name Local Currency Commitment
- --------------------------------------------------------------------------------
Citibank, N.A. US $ 53,000,000
- --------------------------------------------------------------------------------
Morgan Guaranty Trust Company
of New York US $ 47,000,000
- --------------------------------------------------------------------------------
The First National Bank of US $ 43,000,000
Chicago
- --------------------------------------------------------------------------------
Credit Suisse First Boston US $ 33,000,000
- --------------------------------------------------------------------------------
Local Currency Facility US $176,000,000
Aggregate Commitment
- --------------------------------------------------------------------------------
Applicable Local
Currency Lending
Local Currency Bank Name Office
- ------------------------ ----------------
Citibank, N.A. Level 10, Citibank Centre
(ARBN 072 814 058) 1 Margaret Street
Sydney, New South Wales
Attention: Vice President,
Corporate Finance
Telecopy No.: 612-9262-2520
Morgan Guaranty Trust 1 O'Connell Street
Company of New York Sydney, New South Wales
Attention: Grant Bolam
Telecopy No.: 612-9551-6359
The First National Bank Level 32, 60 Margaret Street
of Chicago Sydney 2001
Attention: William Giffen
Telecopy No.: 612-9223-1823
Credit Suisse First Boston 101 Collins Street, Level 27
Melbourne, Victoria 3000
Attention: Malcolm White,
Head of Credit
Administration
Telecopy No.:613-965-33-444
<PAGE>
SCHEDULE II
to Local Currency Addendum
MODIFICATIONS
1. BUSINESS DAY DEFINITION:
"BUSINESS DAY" shall mean a day (other than a Saturday or Sunday) on
which banks are open for business in New York and Sydney. (See definition
of "Business Day" and Section 1.01 of Credit Agreement)
2. INTEREST PAYMENT DATES: Interest shall be paid on the last day of each
Interest Period for Local Currency Advances. (See Section 2.07(d) of
Credit Agreement).
3. INTEREST PERIODS: Each Interest Period for a Fixed Rate Advance shall be a
period of 30, 60, 90, 120, 150 or 180 days as selected by the Company.
(See definition of "Interest Period", Section 1.01 and Section 2.07(d) of
Credit Agreement).
4. INTEREST RATES:
(a) FIXED RATE LOCAL CURRENCY ADVANCES DENOMINATED IN AUSTRALIAN
DOLLARS: Each Local Currency Advance denominated in Australian Dollars
and for which an Interest Period has been selected in accordance with the
terms of Article II of the Credit Agreement and this Addendum shall bear
interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at a
rate per annum equal to the sum of (i) the BBSY Bid Rate for such Local
Currency Advance for such Interest Period PLUS (ii) the Applicable Margin
as in effect from time to time during such Interest Period; PROVIDED,
HOWEVER, 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 all times equal to 2% per annum above the sum of the
BBSY Bid Rate with a 30 day Interest Period (or such other period as the
Local Currency Agent may select) PLUS the Applicable Margin. Computations
of interest shall be made on the basis of a year of 365 or 366 days as the
case may be, for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable. (See Section 2.07(d) of Credit Agreement).
2
<PAGE>
(b) FLOATING RATE LOCAL CURRENCY ADVANCES DENOMINATED IN AUSTRALIAN
DOLLARS: There is no separate Floating Rate Advance interest rate option
under this Addendum. Whenever under the Credit Agreement an Advance
hereunder is required to be a Floating Rate Advance, and in each case in
which no Interest Period has been selected in accordance with the terms of
Article II of the Credit Agreement and this Addendum, the applicable Local
Currency Advance shall bear interest as provided in paragraph (a) of this
Section 4 and have an Interest Period of 30 days (or if an Event of Default
is outstanding or a Floating Rate Advance is required by SECTION 2.13, such
other number of days as specified by the Local Currency Agent). For
purposes of SECTION 2.10 of the Credit Agreement, a Local Currency Advance
bearing interest under this Section 4(b) shall be eligible for Conversion
into a Fixed Rate Local Currency Advance and shall for this purpose be a
"Type" of Local Currency Advance. In addition, for purposes of SECTION
9.04(b) of the Credit Agreement, a Local Currency Advance bearing interest
under this Section 4(b) shall be treated as a Fixed Rate Advance.
5. APPLICABLE MARGIN.
"APPLICABLE MARGIN" for each Floating Rate and Fixed Rate, Local Currency
Advance made pursuant to this Addendum, shall be determined, in a manner
consistent with the textual provisions of SECTION 2.07(c) of the Credit
Agreement, by reference to the following:
Applicable Margin
Credit Rating (Rate per annum)
------------- -----------------
A or better (S&P) OR
A2 or better (Moody's) 0.21%
Below A (S&P) and A2
(Moody's) but
A- (S&P) OR A3 (Moody's) 0.22%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR Baa1 (Moody's) 0.265%
Below BBB+ (S&P) and Baa1 (Moody's)
but
BBB (S&P) OR Baa2 (Moody's) 0.32%
Below BBB (S&P) and Baa2 (Moody's)
but
BBB- (S&P) AND Baa3 (Moody's) 0.405%
Below BBB- (S&P) OR Baa3 (Moody's) 0.555%
3
<PAGE>
If, on the first day of the Interest Period for any Local Currency Advance,
the Company shall not have Credit Ratings from both S&P and Moody's, the
Credit Ratings of the Company for purposes of this Addendum shall be deemed
to be below BBB- (S&P) and below Baa3 (Moody's) 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 Moody's at such time, then the Applicable
Fixed Rate Margin shall be determined as if the applicable Credit Rating of
the Company from each of S&P and Moody's were one level higher than the
lower of the two Credit Ratings. (See Section 2.07(d) of Credit
Agreement).
6. MODIFICATIONS TO INTEREST PERIOD SELECTION/CONVERSION CONTAINED IN
SECTION 2.10:
Notice of Conversion/continuation shall be given by the Borrowing
Subsidiary as follows:
Not later than 10:00 a.m (Sydney time) two (2) Business Days prior to the
proposed commencement of the Interest Period pursuant to a continuation or
Conversion. (See Section 2.10 of Credit Agreement).
7. OTHER:
The provisions of Sections 2.09(c) and (d) shall not apply to Local
Currency Advances under this Local Currency Addendum.
Termination Date for Addendum: The "Termination Date" under the Credit
Agreement.
Prepayment Notices: The Borrowing Subsidiary or the Company, as
applicable, shall be permitted to prepay a Local Currency Advance on the
last day of its then current Interest Period, and subject to the provisions
of Section 9.04(b), on any other Business Day, provided, in the case of any
prepayment, notice thereof is given to the Local Currency Agent not later
than 10:00 a.m. (Sydney time) at least five (5) Business Days prior to the
date of such prepayment. (See Section 2.11 of Credit Agreement).
4
<PAGE>
SCHEDULE III
to Local Currency Addendum
OTHER PROVISIONS
1. BORROWING PROCEDURES:
(a) Notice of Borrowing shall be given by the Borrowing Subsidiary or the
Company, as applicable, to the Local Currency Agent as follows:
Not later than 10:00 a.m (Sydney time) two (2) Business Days prior to
the date of the proposed Borrowing. A Notice of Borrowing may also be
given before 8:00 a.m. (Sydney time) on the date of a proposed
Borrowing; PROVIDED that any such Notice of Borrowing shall have on
its heading: "URGENT-SAME DAY VALUE DRAWDOWN", and shall be faxed, in
addition to the Local Currency Agent, to Citibank, N.A. (Sydney
branch), Operations Division, fax no. 612-9239-9193, Attention: Trevor
Dutton; and PROVIDED FURTHER, that, as a matter of precatory intent,
and not as a condition to its use, the Borrowing Subsidiary and
Company shall endeavor to minimize the use of this same day option.
(See Section 2.02B(a) of Credit Agreement).
(b) Each Notice of Borrowing shall be addressed to the Local Currency
Agent at its address set forth in SECTION 4.03 and shall specify the bank
account to which the Local Currency Advances are to be made. Each Notice
of Borrowing requesting a Borrowing on the date of such Notice shall also
be addressed to each Local Currency Bank at its address set forth in
SCHEDULE I and shall specify each Local Currency Bank's pro rata share of
the proposed Borrowing.
2. FUNDING ARRANGEMENTS:
Minimum amounts of Borrowings and increments for Local Currency Advances,
repayments and prepayments: $2,000,000 with increments of $1,000,000 (See
Section 2.01(b) of Credit Agreement).
3. PROMISSORY NOTES: [None required]
4. FUNDING:
Cleared funds to be made available by Local Currency Bank to Local Currency
Agent by 12:00 (noon) on the date of each Local Currency Borrowing. (See
Section 2.02B(b) of Credit Agreement).
5
<PAGE>
5. ELIGIBILITY CRITERIA FOR LOCAL CURRENCY BANKS:
To be an Eligible Local Currency Bank, a Local Currency Bank must:
(i) be either (A) a resident of Australia or (B) a non-resident carrying on
business in Australia through a permanent establishment in Australia, in either
case, that will make Local Currency Advances from its Australian office or
branch; and
(ii) be obligated to include interest received on any Local Currency
Advance in its assessable income by reason of carrying on business in Australia
through a permanent establishment in Australia for purposes of the Income Tax
Assessment Act 1936 (Cth) or any other legislation introduced in conjunction
with the taxation laws improvement program in Australia.
6. BILL RELIQUIFICATION OPTION.
(a) Each of the Company and the Borrowing Subsidiary agrees that Local
Currency Bank may draw Bills on its behalf in the manner required by the
Local Currency Bank. The face value of those Bills, when added to the
aggregate face value of all other Bills drawn under this clause in respect
of that Local Currency Bank and which are outstanding, shall not exceed the
amount of the Local Currency Bank's outstanding Local Currency Advances in
favor of the Company or the Borrowing Subsidiary, as applicable. A Bill's
maturity date must not exceed the end of the Interest Period for the Local
Currency Advance in respect of which such Bill was drawn. In calculating
the aggregate face value of Bills which a Local Currency Bank is entitled
to have drawn under this clause, the aggregate face value of Bills drawn by
a Borrower under this clause in respect of any other Local Currency Bank is
to be disregarded.
(b) Each of the Company and the Borrowing Subsidiary appoints each
Authorised Officer of the Local Currency Bank as its attorney to draw Bills
in its name or on its behalf under paragraph (a) and agrees to ratify all
action properly taken by each Authorised Officer of the Local Currency Bank
as its attorney under this paragraph.
(c) The authority to permit Bills to be drawn under paragraph (a) and the
appointment under paragraph (b) will cease and be revoked without necessity
for notice on payment by the Company and the Borrowing Subsidiary of all
amounts owing to the Local Currency Bank under the Local Currency Addendum
and cancellation and termination of this Local Currency Addendum. Nothing
in paragraphs (a) or (b) requires the Company or the Borrowing Subsidiary
or authorises the Local Currency Bank or its attorney to draw a Bill which
matures after the Termination Date under the Local Currency Addendum.
6
<PAGE>
(d) Each Local Currency Bank must pay any stamp duty costs or bank fees in
relation to or in respect to any Bills drawn by it on behalf of the Company
or the Borrowing Subsidiary and any dealing with such Bills.
(e) (i) Each Local Currency Bank indemnifies the Borrowing Subsidiary and
Company against any claim, action, damage, loss, liability, costs,
charge, expense, outgoing or payment which the Borrowing Subsidiary or
Company suffers, incurs or is liable for in respect of:
(A) the Company, Borrowing Subsidiary or Local Currency Bank as
authorised under section 6(b) drawing or endorsing a Bill at the
request of such Local Currency Bank; or
(B) the Company or Borrowing Subsidiary being a party to a Bill
at the request of such Local Currency Bank.
(ii) The indemnity of each Local Currency Bank contained in section
6(e)(i):
(A) is a continuing obligation of such Local Currency Bank;
(B) is an additional, separate and independent obligation of
such Local Currency Bank; and
(C) survives the termination of the Addendum and the payment of
any Bill drawn at the request of such Local Currency Bank.
(f) If the Borrowing Subsidiary or Company discharges by payment any Bill,
then (but without prejudice to any other right of the Borrowing Subsidiary
or Company), on the date of payment, the amount of that payment is regarded
as applied against any Local Currency Advance under the Addendum in respect
of which the Bill was drawn, and the obligation of the Borrowing Subsidiary
or Company is accordingly reduced. This section 6(f) applies
notwithstanding any contrary provision in the Credit Agreement.
(g) Each Local Currency Bank that utilises this section 6 represents and
warrants that the holder of any Bill drawn by it on behalf of the Company
or the Borrowing Subsidiary will have no rights under the Credit Agreement
or under the Local Currency Addendum.
(h) For the purposes of this section 6 of Schedule II:
(i) Bill has the same meaning as in the BILL OF EXCHANGE ACT, 1909
(Cwth) and a reference to the drawing, acceptance
7
<PAGE>
or endorsement of, or other dealing with, a Bill is to be interpreted
in accordance with that Act;
(ii) Authorised Officer means in the case of a Local Currency Bank, a
director, secretary or an officer whose title contains the word vice
president, or a person performing the functions of any of them; and
(iii) Company means Ecolab Inc., but only to the extent that it is a
Borrower under this Local Currency Addendum.
8
<PAGE>
Exhibit (15)
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, DC 20549
RE: Ecolab Inc. Registration Statements on Form S-8
(Registration Nos. 2-60010; 2-74944; 33-1664;
33-41828; 2-90702; 33-18202; 33-55986; 33-56101;
33-26241; 33-34000; 33-56151; 333-18627; 33-39228; 33-56125;
33-60266; 33-65364; 33-59431;
333-18617; 333-21167; and 333-35519) and Ecolab Inc.
Registration Statement on Form S-3
(Registration No. 333-14771)
We are aware that our report dated October 21, 1997 on our reviews of interim
financial information of Ecolab Inc. for the periods ended September 30, 1997
and 1996, and included in the Company's quarterly report on Form 10-Q for the
quarter ended September 30, 1997, is incorporated by reference in these
registration statements. Pursuant to Rule 436(c) under the Securities Act of
1933, this report should not be considered a part of the registration statements
prepared or certified by us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Saint Paul, Minnesota
November 12, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF SEP-30-1997 AND THE RELATED STATEMENTS
OF INCOME AND CASH FLOWS FOR THE NINE MONTH PERIOD THEN ENDED AND IS
QUALIFIED BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 66,972
<SECURITIES> 0
<RECEIVABLES> 241,511
<ALLOWANCES> 10,902
<INVENTORY> 132,761
<CURRENT-ASSETS> 468,014
<PP&E> 734,452
<DEPRECIATION> 387,007
<TOTAL-ASSETS> 1,263,468
<CURRENT-LIABILITIES> 372,228
<BONDS> 148,934
0
0
<COMMON> 71,340
<OTHER-SE> 463,652
<TOTAL-LIABILITY-AND-EQUITY> 1,263,468
<SALES> 1,218,443
<TOTAL-REVENUES> 1,218,443
<CGS> 537,226
<TOTAL-COSTS> 537,226
<OTHER-EXPENSES> 518,188
<LOSS-PROVISION> 0<F1>
<INTEREST-EXPENSE> 13,256
<INCOME-PRETAX> 153,626
<INCOME-TAX> 63,587
<INCOME-CONTINUING> 99,587
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 99,587
<EPS-PRIMARY> 1.54
<EPS-DILUTED> 1.49
<FN>
<F1>THE AMOUNT OF "LOSS PROVISION" IS NOT SIGNIFICANT AND HAS BEEN
INCLUDED IN "OTHER EXPENSES."
</FN>
</TABLE>
