SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended March 31, 1996 Commission File Number 1-922
THE GILLETTE COMPANY
(Exact name of registrant as specified in its charter)
Incorporated in Delaware 04-1366970
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
Prudential Tower Building, Boston, Massachusetts 02199
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 421-7000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Title of each class
Common Stock, $1.00 par value
Shares Outstanding March 31, 1996 . . . . . . . . . . . . . . . . 444,947,649
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PAGE 1
PART I. FINANCIAL INFORMATION
THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF INCOME
(Millions of dollars, except per share amounts)
(Unaudited)
<CAPTION>
Three Months Ended
March 31
1996 1995
<S> <C> <C>
Net Sales........................................ $1,676.9 $1,536.0
Cost of Sales.................................... 612.3 567.5
Gross Profit................................. 1,064.6 968.5
Selling, General and Administrative expenses..... 690.0 639.4
Profit from operations....................... 374.6 329.1
Non-operating Charges (Income):
Interest income................................ (1.9) (1.6)
Interest expense............................... 14.3 13.2
Exchange....................................... 3.1 2.1
Other charges - net............................ (1.5) 6.5
14.0 20.2
Income before Income Taxes .................. 360.6 308.9
Income Taxes..................................... 130.7 112.8
Net Income................................... 229.9 196.1
Preferred Stock dividends, net of tax benefit.... 1.2 1.2
Net Income Available to Common Stockholders...... $ 228.7 $ 194.9
Net Income per Common Share...................... $ .51 $ .44
Dividends declared per common share.............. - -
Average number of common shares outstanding
(thousands) 444,692 443,025
<FN>
1995 per share amounts and average number of shares outstanding have been
restated to give effect to the two-for-one stock split effected as a 100%
common stock dividend to holders of record on June 1, 1995.
See Accompanying Notes to Consolidated Financial Statements.
/TABLE
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PAGE 2
THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATED BALANCE SHEET
(Millions of dollars)
(Unaudited)
<CAPTION>
March 31 December 31
1996 1995
<S> <C> <C>
Current Assets:
Cash and cash equivalents.................... $ 53.7 $ 47.9
Short-term investments, at cost, which
approximates market value................. 8.3 1.6
Receivables, less allowances of $56.4
($59.2 at 12/31/95)...................... 1,487.3 1,659.5
Inventories:
Raw materials and supplies............... 239.8 231.8
Work in process.......................... 128.5 127.3
Finished goods........................... 726.0 676.0
Total Inventories...................... 1,094.3 1,035.1
Deferred Income Taxes........................ 201.9 220.2
Prepaid expenses............................. 133.3 140.2
Total Current Assets................... 2,978.8 3,104.5
Property, Plant and Equipment, at cost........... 3,296.3 3,261.5
Less accumulated depreciation............ 1,649.3 1,624.6
Net Property, Plant and Equipment...... 1,647.0 1,636.9
Intangible Assets, less accumulated amortization 1,214.1 1,221.4
Other Assets..................................... 425.9 377.5
$6,265.8 $6,340.3
<FN>
See Accompanying Notes to Consolidated Financial Statements
</TABLE>
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PAGE 3
THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATED BALANCE SHEET
LIABILITIES AND STOCKHOLDERS' EQUITY
(Millions of dollars)
(Unaudited)
<CAPTION>
March 31 December 31
1996 1995
<S> <C> <C>
Current Liabilities:
Loans payable................................ $ 421.6 $ 576.2
Current portion of long-term debt............ 25.8 26.5
Accounts payable............................. 373.3 400.3
Accrued liabilities.......................... 659.0 806.3
Dividends payable............................ - 66.7
Income taxes................................. 300.9 248.0
Total Current Liabilities................. 1,780.6 2,124.0
Long-Term Debt................................... 686.6 691.1
Deferred Income Taxes............................ 80.1 72.7
Other Long-Term Liabilities...................... 951.3 919.2
Minority Interest................................ 22.6 20.0
Stockholders' Equity:
8.0% Cumulative Series C ESOP Convertible
Preferred, without par value, issued: 1996,
160,115 shares; 1995, 160,701 shares....... 96.5 96.9
Unearned ESOP Compensation................... (34.3) (34.3)
Common stock, par value $1.00 per share:
Authorized 1,160,000,000 shares
Issued: 1996, 560,178,567 shares;
1995, 559,718,438 shares........... 560.2 559.7
Additional paid-in capital................... 35.5 31.1
Earnings reinvested in the business.......... 3,611.4 3,382.7
Cumulative foreign currency
translation adjustments.................... (479.1) (477.0)
Treasury stock, at cost:
1996, 115,230,918 shares;l995, 115,254,353 shares (1,045.6) (1,045.8)
Total Stockholders' Equity............... 2,744.6 2,513.3
$6,265.8 $6,340.3
<FN>
See Accompanying Notes to Consolidated Financial Statements
/TABLE
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PAGE 4
THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Millions of dollars)
(Unaudited)
<CAPTION>
Three Months Ended
March 31
1996 1995
<S> <C> <C>
Operating Activities
Net income $ 229.9 $ 196.1
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 72.3 55.5
Other (8.0) (3.1)
Changes in assets and liabilities, net of
effects from acquisition of businesses:
Accounts receivable 161.6 149.0
Inventories (69.9) (33.0)
Accounts payable and accrued liabilities (165.1) (123.7)
Other working capital items 74.7 68.0
Other non-current assets and liabilities 38.8 (17.9)
Net cash provided by operating activities 334.3 290.9
Investing Activities
Additions to property, plant & equipment (84.8) (62.6)
Disposals of property, plant & equipment 6.1 3.4
Acquisition of businesses, less cash acquired (17.4) (16.3)
Other (10.8) 2.1
Net cash used in investing activities (106.9) (73.4)
Financing Activities
Proceeds from exercise of stock option and
purchase plans 4.7 2.9
Decrease in long-term debt (4.8) (4.2)
Decrease in loans payable (151.5) (133.7)
Dividends paid (67.8) (56.6)
Net cash used in financing activities (219.4) (191.6)
Effect of Exchange Rate Changes on Cash (2.2) (.5)
Increase in Cash and Cash Equivalents 5.8 25.4
Cash and Cash Equivalents at Beginning of Year 47.9 43.8
Cash and Cash Equivalents at End of Quarter $ 53.7 $ 69.2
Supplemental disclosure of cash paid for:
Interest $ 15.3 $ 12.1
Income taxes $ 25.3 $ 20.6
Non-cash investing and financing activities:
Acquisition of businesses:
Fair value of assets acquired $ 17.4 $ 16.3
Cash paid 17.4 16.3
Liabilities assumed $ - $ -
<FN>
See Accompanying Notes to Consolidated Financial Statements
/TABLE
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THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Accounting Comments
Reference is made to the registrant's 1995 annual report to stockholders,
which contains, at pages 28 through 40, financial statements and the notes
thereto.
For interim reporting purposes, advertising expenses are charged to operations
as a percentage of sales based on estimated sales and advertising expense for
the full year.
With respect to the financial information for the interim periods included in
this report, which is unaudited, the management of the Company believes that
all adjustments, consisting only of normal recurring accruals necessary to a
fair presentation of the results for such interim periods, have been included.
Realignment Plan
In the fourth quarter of 1993, the Company established a reserve for a
realignment plan resulting in a 1993 fourth quarter charge to profit from
operations of $262.6 million ($164.1 million after taxes, or $.37 per share).
The realignment reserve included costs that are classified into two major
categories as follows:
1. Costs associated with the closure and disposal of major manufacturing
facilities in all business segments, due principally to excess
manufacturing capacity caused by falling global trade barriers. Through
March 31, 1996, $68.3 million has been charged against the original
reserve of $72.0 million.
2. Costs associated with organizational realignment and related work force
reductions to improve the Company's competitive positioning of its
business and adaptation to the continuing trend of more open world trade.
Through March 31, 1996, $180.4 million has been charged against the
original reserve of $190.6 million.
Through March 31, 1996, 2,304 positions were eliminated. All realignment
projects have been implemented, and activities are ongoing in 1996.
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PAGE 6
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Results of Operations
In reviewing the following analysis, it should be understood that results
for any interim period are not necessarily indicative of the results for the
entire year.
Three Months 1996 versus 1995
Sales for the quarter ended March 31, 1996, were $1.68 billion, a 9%
increase over the same quarter of the prior year. This gain reflected a 7%
increase from volume and new products and a 2% favorable combined effect of
fluctuations in exchange rates and in selling prices. Profit from
operations was $374.6 million, up 14% from $329.1 million reported in the
first quarter of 1995. Net income of $229.9 million increased 17% compared
with $196.1 million a year earlier. Net income per common share of $.51
gained 16% over the $.44 reported a year earlier. Sales of domestic
operations increased significantly over those of the prior year. Sales in
foreign operations grew modestly as sharp increases in AMEE markets, which
include Africa, Middle East, Eastern Europe and India, were partially offset
by declines in Latin America due to the sluggish economic environment.
Led by strong growth in the United States and AMEE markets, sales of the
Company's blade and razor products were well above those of the prior year,
and profits were substantially higher. These increases reflect the
continued growth of the Gillette Sensor franchise, including SensorExcel and
Sensor for Women as well as the Custom Plus disposable razor.
Sales of Braun products were well above those of the prior year particularly
in the United States, which reflected the first time inclusion of the
electronic infrared ear thermometers from the acquisition of Thermoscan Inc.
Growth without Thermoscan was moderate as the ongoing favorable response to
new products was partly offset by shortfalls in Japan. Profits were
appreciably higher, due primarily to sales of products with higher profit
margins.
Toiletries and cosmetics sales were considerably higher than those of the
prior year. The continuing expansion of the Gillette Series male grooming
line, the growth of clear gel deodorant/antiperspirant products, the success
of Satin Care female shaving gel and introduction of several new products
resulted in growth for all major markets. Jafra sales continue to be
adversely affected by economic conditions in Mexico. Total segment profits
were sharply lower due to the negative impact of Jafra Mexico and the higher
promotional spending to support new products.
Sales and profits of stationery products surpassed those of the prior year,
due principally to increases in the United States, Asia-Pacific and AMEE,
which were somewhat offset by shortfalls in Europe and Latin America.
Oral-B sales in the first quarter rose sharply over those of 1995, due to
increasing market share in the United States and the success of new products
in most major markets. Profits were well above those of the prior year, due
to sales of these higher margined new products and lower product costs.
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PAGE 7
Blades Toiletries
& & Stationery Braun Oral-B
Period Razors Cosmetics Products Products Products
Three Months 1996 35% 17% 12% 29% 7%
Three Months 1995 36% 17% 13% 28% 6%
Gross profit was $1,064.6 million, an increase of $96.1 million, or 10%,
from 1995. The gross profit percentage of sales was 63.5%, compared with
63.1% for the same period in 1995. The increase is attributable to the
sales of products with higher profit margins and the favorable impact of
cost savings programs.
Selling, general and administrative expenses increased by $50.6 million, or
8%. Combined advertising and sales promotion expenses were the primary
contributors to this change, increasing 11% over those of the prior year.
Spending on research and development increased 18%, while other marketing
and administrative expenses increased 5%.
Profit from operations was $374.6 million, up 14% from $329.1 million a year
earlier. Profit from operations increased significantly in the United
States and was higher in foreign operations.
Net exchange losses and net interest expense were somewhat higher in the
quarter, while the effective tax rate was slightly lower.
Net income of $229.9 million increased 17%, compared with $196.1 million in
1995. Net income per common share of $.51 increased 16% over the $.44
reported a year earlier.
* * * * * *
Interim financial results may also be viewed on an organizational basis. For
this purpose, operating profits from major operational units are reported
before net corporate headquarters expense, net interest expense, exchange
losses and income taxes.
Sales and Profit from Operations of the North Atlantic Group in the quarter
were considerably higher than those of the corresponding periods of a year
ago.
The International Group's sales for the three months were well above those of
last year. Profits in the quarter were significantly higher than those of
last year.
Sales of the Diversified Group were notably higher than those of the prior
year. Profits were substantially higher.
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PAGE 8
Financial Condition
Net cash provided by operating activities for the three months ended
March 31, 1996, amounted to $334 million, compared with $291 million in the
same period last year. The increase in 1996 was due primarily to higher net
income.
Net debt (total debt, net of associated swaps, less cash and short-term
investments) at March 31, 1996, amounted to $1.10 billion, compared with
$1.28 billion at year-end 1995. The Company's current ratio at March 31,
1996, was 1.67, compared with 1.46 at December 31, 1995.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The Company is subject, from time to time, to legal proceedings and claims
arising out of its business, which cover a wide range of matters, including
antitrust and trade regulation, product liability, contracts, environmental
issues, patent and trademark matters and taxes. Management, after review and
consultation with counsel, considers that any liability from all of these
legal proceedings and claims would not materially affect the consolidated
financial position, results of operations, or liquidity of the Company.
Item 4. Vote of Security Holders
At its Annual Meeting on April 18, 1996, the stockholders of The Gillette
Company took the following actions:
1. Elected the following four directors for terms to expire at the 1999
Annual Meeting of Stockholders, with votes as indicated opposite each
director's name and with no abstentions or broker nonvotes:
FOR WITHHELD
Warren E. Buffett 378,620,107 3,791,480
Michael B. Gifford 378,503,749 3,907,838
Carol R. Goldberg 378,494,011 3,917,576
Joseph E. Mullaney 378,678,773 3,732,814
2. Approved the appointment by the Board of Directors of KPMG Peat Marwick
LLP as auditors for the year 1996. The vote was 379,880,731 for and
1,569,628 against the proposal, with 961,228 abstentions and no broker
nonvotes.
3. Did not approve a stockholder proposal regarding animal tests.
The vote was 282,607,413 against and 20,902,059 for the proposal, with
21,005,448 abstentions and 57,896,667 broker nonvotes.
Item 5. Other Information
At its meeting on April 18, 1996, the Board of Directors authorized the
Company to purchase from 10 million to 15 million shares of its common stock
over a three-to-four year period in the open market or in privately
negotiated transactions.
Reference is made to the section titled "Cautionary Statement" under
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, which is incorporated by reference.<PAGE>
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PAGE 9
Item 6 (a) Exhibits
Exhibits 10(a) and 10(b)
364-Day and Multi-Year Credit Agreements dated as of April 30, 1996, among
The Gillette Company and a group of domestic and foreign banks, filed
herewith.
<TABLE>
Exhibit 11
THE GILLETTE COMPANY AND SUBSIDIARY COMPANIES
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
(Millions of dollars, except per share amounts; shares in millions)
<CAPTION>
Three Months Ended March 31
1996 1995
<S> <C> <C>
Net Income Per Common Share-Assuming No Dilution
Net income as reported....................... $ 229.9 $ 196.1
Less: Preferred Stock Dividends, net of tax
benefit............................... (1.2) (1.2)
Net Income available to Common Shareholders.. $ 228.7 $ 194.9
Average common shares outstanding............ 444.7 443.0
Reported net income per common share......... $ .51 $ .44
Net Income Per Common Share-Assuming Full Dilution
Net Income available to Common Shareholders
(As Above)................................. $ 228.7 $ 194.9
Add: Series C ESOP Preferred Stock Dividend,
net of tax benefit......................... 1.2 1.2
Deduct: Add'l. ESOP Costs, net of tax benefit (.4) (.5)
Adjusted Net Income available to Common Share-
holders.................................... $ 229.5 $ 195.6
Average common shares outstanding............ 444.7 443.0
Add: Conversion of Series C ESOP Preferred
Stock.................................. 6.4 6.5
Net additional common shares upon
exercise of stock options.............. 5.7 4.6
Adjusted average common shares outstanding... 456.8 454.1
Net Income per Common Share -
assuming full dilution..................... $ .50 $ .43
1995 per share amounts and average number of shares outstanding have been
restated to give effect to the two-for-one stock split effected as a 100%
common stock dividend to holders of record on June 1, 1995.
</TABLE>
Exhibit 27 Financial Data Schedule filed herewith.
Item 6 (b). Reports on Form 8-K
There were no reports on Form 8-K filed by the Company during the period
covered by this report.<PAGE>
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PAGE 10
SIGNATURE
SIGNATURES
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.
THE GILLETTE COMPANY
(Registrant)
CHARLES W. CRAMB
Charles W. Cramb
Vice President, Controller,
Duly Authorized Officer and Principal Accounting Officer
May 10, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The data reported in this exhibit are based on unaudited statements but
include all adjustments which the company considers necessary for a fair
presentation of results for this period.
</LEGEND>
<CIK> 0000041499
<NAME> THE GILLETTE COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 53,700
<SECURITIES> 8,300
<RECEIVABLES> 1,543,700
<ALLOWANCES> 56,400
<INVENTORY> 1,094,300
<CURRENT-ASSETS> 2,978,800
<PP&E> 3,296,300
<DEPRECIATION> 1,649,300
<TOTAL-ASSETS> 6,265,800
<CURRENT-LIABILITIES> 1,780,600
<BONDS> 686,600
<COMMON> 560,200
0
96,500
<OTHER-SE> 2,087,900
<TOTAL-LIABILITY-AND-EQUITY> 6,265,800
<SALES> 1,676,900
<TOTAL-REVENUES> 1,676,900
<CGS> 612,300
<TOTAL-COSTS> 612,300
<OTHER-EXPENSES> 690,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,300
<INCOME-PRETAX> 360,600
<INCOME-TAX> 130,700
<INCOME-CONTINUING> 229,900
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 229,900
<EPS-PRIMARY> .51
<EPS-DILUTED> .50
</TABLE>
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[CONFORMED COPY]
$200,000,000
364-DAY CREDIT AGREEMENT
dated as of
April 30, 1996
among
The Gillette Company,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
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<TABLE>
TABLE OF CONTENTS*
<CAPTION>
Page
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The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Accounting Terms and Determinations................. 13
SECTION 1.03. Types of Borrowings................................. 13
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend................................. 14
SECTION 2.02. Notice of Committed Borrowing....................... 14
SECTION 2.03. Money Market Borrowings............................. 15
SECTION 2.04. Notice to Banks; Funding of Loans................... 19
SECTION 2.05. Notes............................................... 20
SECTION 2.06. Maturity of Loans................................... 21
SECTION 2.07. Interest Rates...................................... 21
SECTION 2.08. Facility Fee........................................ 24
SECTION 2.09. Optional Termination or Reduction of
Commitments......................................... 25
SECTION 2.10. Scheduled Termination of Commitments................ 25
SECTION 2.11. Optional Prepayments................................ 25
SECTION 2.12. General Provisions as to Payments................... 25
SECTION 2.13. Funding Losses...................................... 26
SECTION 2.14. Computation of Interest and Fees.................... 27
SECTION 2.15. Judgment Currency................................... 27
SECTION 2.16. Foreign Withholding Taxes and Other Costs........... 28
SECTION 2.17. Regulation D Compensation........................... 28
SECTION 2.18. Withholding Tax Exemption........................... 29
ARTICLE III
<FN>
- -----------------------------
*The Table of Contents is not a part of this Agreement.
</TABLE>
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CONDITIONS
<S> <C>
SECTION 3.01. Effectiveness....................................... 30
SECTION 3.02. Borrowings.......................................... 31
SECTION 3.03. First Borrowing by Each Eligible Subsidiary......... 32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power....................... 32
SECTION 4.02. Corporate and Governmental Authorization;
Contravention....................................... 32
SECTION 4.03. Binding Effect...................................... 33
SECTION 4.04. Financial Information............................... 33
SECTION 4.05. No Material Adverse Change.......................... 33
SECTION 4.06. Compliance with ERISA............................... 33
SECTION 4.07. Litigation.......................................... 34
SECTION 4.08. Taxes............................................... 34
SECTION 4.09. Full Disclosure..................................... 34
ARTICLE V
COVENANTS
SECTION 5.01. Information......................................... 35
SECTION 5.02. Maintenance of Property; Insurance.................. 37
SECTION 5.03. Conduct of Business and Maintenance of
Existence........................................... 37
SECTION 5.04. Compliance with Laws................................ 38
SECTION 5.05. Earnings to Interest Expense Ratio.................. 38
SECTION 5.06. Negative Pledge..................................... 38
SECTION 5.07. Consolidations, Mergers and Sales of Assets......... 39
SECTION 5.08. Material Subsidiary Cash Flow....................... 39
SECTION 5.09. Use of Proceeds..................................... 39
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default................................... 40
SECTION 6.02. Notice of Default................................... 42
ARTICLE VII
</TABLE>
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THE AGENT
<S> <C>
SECTION 7.01. Appointment and Authorization....................... 43
SECTION 7.02. Agent and Affiliates................................ 43
SECTION 7.03. Action by Agent..................................... 43
SECTION 7.04. Consultation with Experts........................... 43
SECTION 7.05. Liability of Agent.................................. 43
SECTION 7.06. Indemnification..................................... 44
SECTION 7.07. Credit Decision..................................... 44
SECTION 7.08. Successor Agent..................................... 44
SECTION 7.09. Agent's Fee......................................... 45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair................................ 45
SECTION 8.02. Illegality.......................................... 46
SECTION 8.03. Increased Cost and Reduced Return................... 46
SECTION 8.04. Base Rate Loans Substituted for Affected
Fixed Rate Loans.................................... 48
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power....................... 49
SECTION 9.02. Corporate and Governmental Authorization;
Contravention....................................... 49
SECTION 9.03. Binding Effect...................................... 50
SECTION 9.04. Taxes............................................... 50
ARTICLE X
GUARANTY
SECTION 10.01. The Guaranty........................................ 50
SECTION 10.02. Guaranty Unconditional.............................. 50
SECTION 10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances.............. 51
SECTION 10.04. Waiver by the Company............................... 52
SECTION 10.05. No Subrogation...................................... 52
SECTION 10.06. Stay of Acceleration................................ 52
</TABLE>
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<CAPTION>
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ARTICLE XI
MISCELLANEOUS
<S> <C>
SECTION 11.01. Notices............................................. 52
SECTION 11.02. No Waivers.......................................... 53
SECTION 11.03. Expenses; Indemnification........................... 53
SECTION 11.04. Sharing of Set-Offs................................. 54
SECTION 11.05. Amendments and Waivers.............................. 54
SECTION 11.06. Successors and Assigns.............................. 55
SECTION 11.07. Collateral.......................................... 57
SECTION 11.08. Governing Law; Submission to Jurisdiction;
Service of Process.................................. 57
SECTION 11.09. Counterparts; Integration. ........................ 58
SECTION 11.10. WAIVER OF JURY TRIAL................................ 58
</TABLE>
<TABLE>
<S> <C>
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Form of Election to Participate
Exhibit H - Form of Election to Terminate
Exhibit I - Opinion of Counsel for the Borrower (Borrowings by
Eligible Subsidiaries)
Exhibit J - Assignment and Assumption Agreement
</TABLE>
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CREDIT AGREEMENT
AGREEMENT dated as of April 30, 1996 among THE GILLETTE COMPANY, the
BANKS listed on the signature pages hereof and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted Consolidated Earnings Before Interest and Taxes" means,
for any fiscal period, (i) Consolidated Earnings Before Interest and Taxes for
such fiscal period less (ii) interest expense attributable to Brazilian Debt to
the extent that such interest expense is included in the calculation of Gross
Interest Expense for such fiscal period.
"Adjusted Gross Interest Expense" means, for any fiscal period, (i)
Gross Interest Expense for such fiscal period LESS (ii) interest expense
attributable to Brazilian Debt to the extent that such interest expense is
included in the calculation of Gross Interest Expense for such fiscal period.
<PAGE>
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 11.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing
or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group and not excepted by Section 4(b) of ERISA.
"Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means all
of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
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"Brazilian Debt" means Debt of the Company or any of its
Consolidated Subsidiaries (i) that is denominated solely in lawful money of the
Federal Republic of Brazil and (ii) the proceeds of which are (or have been)
used to finance the operations from time to time located in Brazil of the
Company or any of its Subsidiaries.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan
in accordance with the applicable Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means The First National Bank of Boston, The
First National Bank of Chicago and Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages of this Agreement, as such
amount may be reduced from time to time pursuant to Sections 2.09 and 2.10.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01.
"Company" means The Gillette Company, a Delaware corporation, and
its successors.
"Company's 1995 Form 10-K" means the Company's annual report on Form
10-K for 1995, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Consolidated Assets" means at any date the consolidated assets of
the Company and its Consolidated Subsidiaries determined as of such date.
"Consolidated Earnings Before Interest and Taxes" means, for any
fiscal period, the sum of (i) Consolidated Net Income plus (ii) Gross Interest
Expense plus (iii) to the extent deducted in determining Consolidated Net
Income,
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provision for taxes on income, all determined on a consolidated basis for the
Company and its Consolidated Subsidiaries for such fiscal period.
"Consolidated Net Income" means, for any fiscal period, the net income
(before preferred and common stock dividends) of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis for such fiscal
period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, and (vi) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions,
excluding any amounts which the Borrower is entitled to set-off against its
obligations under applicable law.
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"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City or Boston, Massachusetts
are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; PROVIDED that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit G hereto.
"Election to Terminate" means an Election to Terminate substantially
in the form of Exhibit H hereto.
"Eligible Subsidiary" means any Substantially- Owned Consolidated
Subsidiary of the Company as to which an Election to Participate shall have been
delivered to the Agent and as to which an Election to Terminate shall not have
been delivered to the Agent. Each such Election to Participate and Election to
Terminate shall be duly executed on behalf of such Substantially-Owned
Consolidated Subsidiary and the Company in such number of copies as the Agent
may request. The delivery of an Election to Terminate shall not affect any
obligation of an Eligible Subsidiary
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<PAGE>
theretofore incurred. The Agent shall promptly give notice to the Banks of the
receipt of any Election to Participate or Election to Terminate.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
The First National Bank of Boston, Credit Suisse and Morgan Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
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<PAGE>
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing 364-Day Credit Agreement" means the 364- Day Credit
Agreement dated as of June 21, 1994, among the Company, the bank parties thereto
and Morgan Guaranty Trust Company of New York, as agent, as amended to the
Effective Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.01(ii)) or any combination of the foregoing.
"Gross Interest Expense" means, for any fiscal period, the
consolidated interest expense of the Company and its Consolidated Subsidiaries
for such period (calculated without deducting or otherwise netting consolidated
interest income of the Company and its Consolidated Subsidiaries).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
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<PAGE>
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions, by "comfort letter" or other similar
undertaking of support or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the holder of such Debt of the payment thereof or
to protect such holder against loss in respect thereof (in whole or in part),
PROVIDED that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60,
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<PAGE>
90, or 180 days thereafter, as the Borrower may elect in the applicable Notice
of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter as
the Borrower may elect in accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
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<PAGE>
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 15 days) as the Borrower may elect in accordance
with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Debt" means Debt (other than the Notes) of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding $50,000,000.
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"Material Financial Obligations" means a principal amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $50,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Material Subsidiary" means any Subsidiary which either (A) is an
Eligible Subsidiary or (B) has consolidated assets, together with its
Subsidiaries, exceeding 5% of Consolidated Assets at the date of determination
of its status hereunder.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; PROVIDED that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(ii)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
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"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
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employees of any Person which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank to any
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to but excluding the Termination Date.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests 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 owned by such Person;
unless otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"Substantially-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary not less than 90% of the outstanding shares of each class of capital
stock or other ownership interests of which are at the time directly or
indirectly owned by the Company.
"Termination Date" means April 29, 1997, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
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"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks; PROVIDED that, if the Company notifies the Agent that the Company
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Company that the Required Banks wish to amend
Article V for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II on a single date and for a single Interest Period.
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Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions
of Article II under which participation therein is determined (i.e., a
"Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Money Market Borrowing"
is a Borrowing under Section 2.03 in which the Bank participants are determined
on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Company or any Eligible Subsidiary pursuant to
this Section from time to time in amounts such that the aggregate principal
amount of Committed Loans by such Bank at any one time outstanding to all
Borrowers shall not exceed the amount of its Commitment. Each Borrowing under
this Section shall be in an aggregate principal amount of $15,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02(b)) and shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, a Borrower may borrow under this Section, repay or,
to the extent permitted by Section 2.11, prepay Loans and reborrow at any time
during the Revolving Credit Period under this Section.
SECTION 2.02. NOTICE OF COMMITTED BORROWING. The Borrower shall give
the Agent notice (a "Notice of Committed Borrowing") not later than 10:15 A.M.
(New York City time) on (x) the date of each Base Rate Borrowing, (y) the
Domestic Business Day before each CD Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic
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Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
-----------------------
(a) THE MONEY MARKET OPTION. In addition to Committed Borrowings
pursuant to Section 2.01, any Borrower may, as set forth in this Section,
request the Banks during the Revolving Credit Period to make offers to make
Money Market Loans to such Borrower. The Banks may, but shall have no obligation
to, make such offers and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Agent shall have mutually agreed and the Agent shall
have notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
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(ii) the aggregate amount of such Borrowing, which shall be $
15,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
referred to in or pursuant to Section 11.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M. (New York
City time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Company and the
Agent shall have mutually agreed and the Agent shall have notified to the Banks
not later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective);
PROVIDED that Money Market Quotes submitted
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by the Agent (or any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for the other Banks, in the case of a
LIBOR Auction or (y) 15 minutes prior to the deadline for the other Banks, in
the case of an Absolute Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000 (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of Money Market
Loans for which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
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(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO BORROWER. The Agent shall promptly notify the Borrower
of the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 10:15 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Company and the Agent shall have mutually agreed
and the Agent shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR
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Auction or Absolute Rate Auction for which such change is to be effective), the
Borrower shall notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e). In the case of acceptance,
such notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$15,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) ALLOCATION BY AGENT. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
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(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 11.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day on
which such Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by such Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b), or remitted by such
Borrower to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to Section 2.07 and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
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SECTION 2.05. NOTES. (a) The Loans of each Bank to each Borrower
shall be evidenced by a single Note of such Borrower payable to the order of
such Bank for the account of its Applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent, request
that its Loans of a particular type to such Borrower be evidenced by a separate
Note of such Borrower in an amount equal to the aggregate unpaid principal
amount of such Loans. Each such Note shall be in substantially the form of
Exhibit A hereto with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference in this Agreement to
a "Note" or the "Notes" of such Bank shall be deemed to refer to and include any
or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b) or
3.03(a), the Agent shall forward such Note to such Bank. Each Bank shall record
the date, amount, type and maturity of each Loan made by it to each Borrower and
the date and amount of each payment of principal made with respect thereto, and
may, if such Bank so elects in connection with any transfer or enforcement of
its Note of any Borrower, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan to such Borrower then outstanding; PROVIDED that the failure of any
Bank to make any such recordation or endorsement shall not affect the
obligations of any Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by each Borrower so to endorse its Notes and to attach to
and make a part of any Note a continuation of any such schedule as and when
required.
SECTION 2.06. MATURITY OF LOANS. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each
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Interest Period on the last day thereof. Any overdue principal of or interest on
any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day plus the Adjusted
CD Rate applicable to such Interest Period; PROVIDED that if any CD Loan shall,
as a result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall bear interest during
such Interest Period at the rate applicable to Base Rate Loans during such
period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 90 days, at intervals of 90
days after the first day thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 1% plus the higher of (i) the sum of the CD Margin
for such day plus the Adjusted CD Rate applicable to the Interest Period for
such Loan and (ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum equal to 0.260%.
The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
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[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
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comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum equal to 0.135%.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 1% plus the Euro-Dollar Margin for
such day plus the London Interbank Offered Rate applicable to the Interest
Period for such Loan and (ii) the sum of 1% plus the Euro-Dollar Margin for such
day plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six
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months as the Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Euro-Dollar Reference Banks are
offered to such Euro-Dollar Reference Bank in the London interbank market for
the applicable period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(ii), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
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SECTION 2.08. FACILITY FEE. (a) The Company shall pay to the Agent
for the account of the Banks ratably a facility fee at the rate equal to 0.040%
per annum. Such facility fee shall accrue (i) from and including the Effective
Date to but excluding the Termination Date (or earlier date of termination of
the Commitments in their entirety), on the daily aggregate amount of the
Commitments (whether used or unused) and (ii) from and including the Termination
Date or such earlier date of termination to but excluding the date the Loans
shall be repaid in their entirety, on the daily aggregate outstanding principal
amount of the Loans.
(b) PAYMENTS. Accrued facility fees under this Section shall be
payable quarterly on each March 31, June 30, September 30 and December 31,
beginning with June 30, 1996, and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
During the Revolving Credit Period, the Company may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate the Commitments at
any time, if no Loans are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 or any larger multiple
thereof, the aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. SCHEDULED TERMINATION OF COMMITMENTS. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS. (a) A Borrower may, by notice to
the Agent prior to 10:00 A.M. (New York City time) at least one Domestic
Business Day before the date for which prepayment under this Section is sought,
prepay any Base Rate Borrowing (or any Money Market LIBOR Borrowing bearing
interest at the Base Rate pursuant to Section 8.01(ii)) by it in whole at any
time, or from time to time in part in amounts aggregating $25,000,000 or any
larger multiple of $5,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon
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to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.02, no Borrower may prepay all
or any portion of the principal amount of any Fixed Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrowers
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Dollars in Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 11.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks. Whenever any payment of principal of, or
interest on, the Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the 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 may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon
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such assumption, 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 that such Borrower
shall not have so made such payment, each Bank shall repay to the Agent
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, at the Federal Funds
Rate.
SECTION 2.13. FUNDING LOSSES. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section
2.07(d), or if a Borrower fails to borrow any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a), such Borrower shall
reimburse each Bank on demand for any resulting loss or expense incurred by it
(or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow, PROVIDED that such Bank shall have
delivered to such Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and all
facility fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
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SECTION 2.15. JUDGMENT CURRENCY. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder or under any of the Notes in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase Dollars with such other currency at
the Agent's New York office on the Domestic Business Day preceding that on which
final judgment is given. The obligations of each Borrower in respect of any sum
due to any Bank or the Agent hereunder or under any Note shall, notwithstanding
any judgment in a currency other than Dollars, be discharged only to the extent
that on the Domestic Business Day following receipt by such Bank or the Agent
(as the case may be) of any sum adjudged to be so due in such other currency
such Bank or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such other currency; if the amount of
Dollars so purchased is less than the sum originally due to such Bank or the
Agent, as the case may be, in Dollars, each Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such loss, and if the amount of Dollars so purchased
exceeds (a) the sum originally due to any Bank or the Agent, as the case may be,
and (b) any amounts shared with other Banks as a result of allocations of such
excess as a disproportionate payment to such Bank under Section 11.04, such Bank
or the Agent, as the case may be, agrees to remit such excess to the appropriate
Borrower.
SECTION 2.16. FOREIGN WITHHOLDING TAXES AND OTHER COSTS. (a) All
payments by an Eligible Subsidiary of principal of and interest on its Notes and
of all other amounts payable under this Agreement are payable without deduction
for or on account of any present or future taxes, duties or other charges levied
or imposed by the government of any jurisdiction outside the United States or by
any political subdivision or taxing authority thereof or therein through
withholding or deduction with respect to any such payments. If any such taxes,
duties or other charges are so levied or imposed, such Eligible Subsidiary will
pay additional interest or will make additional payments in such amounts so that
every net payment of principal of and
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interest on its Notes and of all other amounts payable by it under this
Agreement, after withholding or deduction for or on account of any such present
or future taxes, duties or other charges, will not be less than the amount
provided for herein. Such Eligible Subsidiary shall furnish promptly to the
Agent official receipts evidencing such withholding or deduction.
(b) If the cost to any Bank of making or maintaining any Loan to an
Eligible Subsidiary is increased, or the amount of any sum received or
receivable by any Bank (or its Applicable Lending Office) is reduced by an
amount deemed by such Bank to be material, by reason of the fact that such
Eligible Subsidiary is incorporated in, or conducts business in, a jurisdiction
outside the United States the Borrower shall indemnify such Bank for such
increased costs or reduction within 15 days after demand by such Bank (with a
copy to the Agent and the Company). A certificate of such Bank claiming
compensation under this subsection (b) and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge that will entitle such Bank to additional
interest or payments pursuant to subsection (b) and will designate a different
Applicable Lending Office, if, in the judgment of such Bank, such designation
will avoid the need for, or reduce the amount of, such compensation and will not
be otherwise disadvantageous to such Bank.
SECTION 2.17. REGULATION D COMPENSATION. Each Bank may require any
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans to such Borrower, additional interest on the related
Euro-Dollar Loan to such Borrower of such Bank at a rate per annum determined by
such Bank up to but not exceeding the excess of (i) (A) the applicable London
Interbank Offered Rate divided by (B) one MINUS the Euro-Dollar Reserve
Percentage over (ii) the applicable London Interbank Offered Rate. Any Bank
wishing to require payment of such additional interest (x) shall so notify such
Borrower and the Agent, in which case such additional interest on the
Euro-Dollar Loans to such Borrower of such Bank shall be payable to such Bank at
the place indicated in such notice with respect to each Interest Period
commencing at least three Euro-Dollar
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Business Days after the giving of such notice, and (y) shall notify such
Borrower at least five Euro-Dollar Business Days prior to each date on which
interest is payable on the EuroDollar Loans to such Borrower of the amount then
due it under this Section.
SECTION 2.18. WITHHOLDING TAX EXEMPTION. At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States or a state thereof agrees that it will deliver to
each of the Company and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either case that such
Bank is entitled to receive payments from the Company under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Agent two additional copies of such form
(or a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Company or the Agent, in
each case certifying that such Bank is entitled to receive payments from the
Company under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank advises the
Company and the Agent that it is not capable of receiving such payments without
any deduction or withholding of United States federal income tax.
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ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. This Agreement shall become effective
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 11.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex, facsimile transmission or other
written confirmation from such party of execution of a counterpart hereof
by such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of the Company dated on or before the Effective Date
complying with the provisions of Section 2.05;
(c) receipt by the Agent of an opinion of the General Counsel of the
Company (or other counsel for the Company reasonably satisfactory to the
Agent), substantially in the form of Exhibit E hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit F
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(e) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Company, the corporate authority for and
the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent; and
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(f) receipt by the Agent of evidence satisfactory to it of the
payment of all principal and interest on any loans outstanding under, and
of all other amounts payable under, the Existing 364-Day Credit Agreement;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied no later than
May 15, 1996. The Agent shall promptly notify the Company and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all parties
hereto. The Banks that are parties to the Existing 364-Day Credit Agreement,
comprising the "Required Banks" as defined therein, and the Company agree to
eliminate the requirement under Section 2.09 of the Existing 364-Day Credit
Agreement that notice of optional termination of the commitments thereunder be
given three Domestic Business Days in advance, and further agree that the
commitments under the Existing 364-Day Credit Agreement shall terminate in their
entirety simultaneously with and subject to the effectiveness of this Agreement
and that the Company shall be obligated to pay the accrued facility fees
thereunder to but excluding the date of such effectiveness.
SECTION 3.02. BORROWINGS. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Company
and the Borrower (if other than the Company) contained in this Agreement
(except, in the case of a Refunding Borrowing, the representations and
warranties set forth in Sections 4.05 and 4.07 as to any matter which has
theretofore
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been disclosed in writing by the Company to the Banks) shall be true in
all material respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company and the Borrower (if other than the Company) on the date of such
Borrowing as to the facts specified in clauses (b), (c) and (d) of this Section.
SECTION 3.03. FIRST BORROWING BY EACH ELIGIBLE SUBSIDIARY. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Agent for the account of each Bank of a duly
executed Note of such Eligible Subsidiary, dated on or before the date of
such Borrowing complying with the provisions of Section 2.05;
(b) receipt by the Agent of an opinion of counsel for such Eligible
Subsidiary acceptable to the Agent, substantially in the form of Exhibit I
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request; and
(c) receipt by the Agent of all documents which it may reasonably
request relating to the existence of such Eligible Subsidiary, the
corporate authority for and the validity of the Election to Participate of
such Eligible Subsidiary, this Agreement and the Notes of such Eligible
Subsidiary, and any other matters relevant thereto, all in form and
substance satisfactory to the Agent.
The documents referred to in this Section 3.03 shall be delivered to the Agent
by an Eligible Subsidiary no later than the date of the first Borrowing by such
Eligible Subsidiary.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Company of this
Agreement and its Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company and its Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company, in each case enforceable in accordance with their respective terms
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. FINANCIAL INFORMATION. The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of December 31, 1995 and the
related consolidated statements of income and cash flows for the fiscal year
then ended, reported on by KPMG Peat Marwick LLP and set forth in the Company's
Annual Report to Shareholders for 1995 incorporated by reference in the
Company's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated
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financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year.
SECTION 4.05. NO MATERIAL ADVERSE CHANGE. Since December 31, 1995
there has been no material adverse change in the business, operations or
financial condition of the Company and its Consolidated Subsidiaries, considered
as a whole.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
if such failure or amendment has resulted, or there is a reasonable possibility
that it could result, in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
SECTION 4.07. LITIGATION. Except as disclosed in the Company's 1995
Form 10-K, there is no action, suit, investigation or proceeding pending
against, or to the knowledge of the Company threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could materially adversely affect the business,
operations or financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole, or which in any manner draws into question the
validity of this Agreement or the Notes.
SECTION 4.08. TAXES. The Company has filed (or has obtained extensions
of the time by which it is required to file) all United States federal income
tax returns and all other material tax returns required to be filed by it
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and has paid all taxes shown due on the returns so filed as well as all other
material taxes, assessments and governmental charges which have become due,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided.
SECTION 4.09. FULL DISCLOSURE. All information heretofore furnished
by the Company to the Agent or any Bank for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Company to the Agent or any Bank will be,
true and accurate in all material respects on the date as of which such
information is stated or certified. The Company has disclosed to the Banks in
writing any and all facts which materially and adversely affect or may affect
(to the extent the Company can now reasonably foresee), the business, operations
or financial condition of the Company and its Consolidated Subsidiaries, taken
as a whole, or the ability of the Company to perform its obligations under this
Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income and cash flows for
such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by KPMG Peat Marwick
LLP or other independent public accountants of nationally recognized
standing;
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(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Company, (i) a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter, (ii) the related
consolidated statements of income for such quarter and for the portion of
the Company's fiscal year ended at the end of such quarter and (iii) the
related consolidated statement of cash flows for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in
cases (ii) and (iii) in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the principal accounting
officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the principal accounting officer of the Company
(i) setting forth in reasonable detail the calculations required to
establish whether the Company was in compliance with the requirements of
Section 5.05 on the date of such financial statements and (ii) stating
whether there exists on the date of such certificate any Default and, if
any Default then exists, setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that there existed on the date of such statements any Default and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default, a certificate of
the chief financial officer or the
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principal accounting officer of the Company setting forth the details
thereof and the action which the Company is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Company shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might reasonably
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice; (iii) receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice; or
(iv) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement, if such failure or amendment
has resulted, or there is a reasonable possibility that it could result,
in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code, a certificate of the chief
financial officer, the principal accounting officer or the treasurer of
the Company setting forth details as to such occurrence and action, if
any, which the Company or applicable member of the ERISA Group is required
or proposes to take;
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(i) promptly upon any change in the rating by Standard & Poor's
Ratings Services or Moody's Investors Service, Inc. of the Company's
outstanding public senior unsecured long-term debt securities or the
Company's outstanding commercial paper, a notice reporting such change and
stating the date on which such change was announced by the relevant rating
agency; and
(j) from time to time such additional information regarding the
business, operations or financial condition of the Company and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. The Company will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted; will maintain, and will cause each Subsidiary to maintain (either in
the name of the Company or in such Subsidiary's own name) with financially sound
and reputable insurance companies, insurance on all their property in at least
such amounts and against at least such risks as are usually insured against in
the same general area by companies of established repute engaged in the same or
a similar business; and will furnish to the Banks, upon written request from the
Agent, such information as may be reasonably requested as to the insurance
carried.
SECTION 5.03. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Company will preserve, renew and keep in full force and effect its corporate
existence and its rights, privileges and franchises necessary or desirable in
the normal conduct of business.
SECTION 5.04. COMPLIANCE WITH LAWS. The Company will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, ERISA and the rules and regulations thereunder)
except where the necessity of compliance therewith is contested in good faith by
appropriate proceedings.
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SECTION 5.05. EARNINGS TO INTEREST EXPENSE RATIO. At the end of each
fiscal quarter of the Company, the ratio of (x) Adjusted Consolidated Earnings
Before Interest and Taxes for the four fiscal quarters then ended to (y)
Adjusted Gross Interest Expense for the four fiscal quarters then ended will not
be less than 6.50:1.
SECTION 5.06. NEGATIVE PLEDGE. Neither the Company nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding on
the date hereof in an aggregate principal amount not exceeding
$25,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, PROVIDED that such Debt is not
increased and is not secured by any additional assets;
(g) any Lien arising pursuant to any order of attachment, distraint
or similar legal process arising in connection with court proceedings so
long as the execution or other enforcement thereof is effectively
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stayed and the claims secured thereby are being contested in good faith by
appropriate proceedings;
(h) Liens incidental to the conduct of its business or the ownership
of its assets which (i) do not secure Debt or Derivatives Obligations and
(ii) do not in the aggregate materially detract from the value of its
assets or materially impair the use thereof in the operation of its
business;
(i) Liens on cash and cash equivalents securing Derivatives
Obligations, PROVIDED that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $25,000,000; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Assets.
SECTION 5.07. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Company
will not (i) consolidate or merge with or into any other Person or (ii) sell,
lease or otherwise transfer, directly or indirectly, all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, to any other
Person; PROVIDED that the Company may merge with a Subsidiary if (A) the Company
is the corporation surviving such merger and (B) immediately after giving effect
to such merger, no Default shall have occurred and be continuing.
SECTION 5.08. MATERIAL SUBSIDIARY CASH FLOW. The Company will not, and
will not permit any Material Subsidiary to, enter into any arrangement which
restricts the ability of any Material Subsidiary, directly or indirectly, to
make funds available to the Company, whether by way of dividend or other
distribution, advance or otherwise.
SECTION 5.09. USE OF PROCEEDS. The proceeds of Loans hereunder will be
used by the Borrowers for their general corporate purposes, including without
limitation, any purchase, redemption, retirement or acquisition of outstanding
shares of capital stock of the Company ("Stock Repurchases"). Except for
permitted Stock Repurchases referred to in the immediately preceding sentence,
none of such proceeds will be used, directly or indirectly, for the
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purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any "margin stock" within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be paid
within five days of the due date thereof;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.05 to 5.09, inclusive;
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made or
deemed to have been made by any Borrower in this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment in
respect of any Material Debt or any Material Financial Obligations when
due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of
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such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Company or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due
(including any approved extensions) an amount or amounts aggregating in
excess of $50,000,000 which it shall have become liable to pay under Title
IV of ERISA; or notice of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or to cause a trustee to be appointed to administer any Material
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Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members
of the ERISA Group to incur a current payment obligation in excess of
$50,000,000;
(j) a judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Company or any Material
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 30% or more of the outstanding shares of voting stock of the
Company; or, during any two-year period, the individuals who were serving
on the board of directors of the Company at the beginning of such period
or who were nominated for election or elected to such board during such
period with the affirmative vote of at least two-thirds of such
individuals still in office cease to constitute a majority of such board;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon and all accrued fees and other amounts payable by any
Borrower hereunder) to be, and the Notes shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; PROVIDED that in the case of
any of the Events of Default specified in clause (g) or (h) above with respect
to any Borrower, without any notice to any Borrower or any other act by the
Agent or the Banks, the Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon and all accrued fees and other amounts
payable by any Borrower
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hereunder) shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with any Borrower or any Subsidiary or affiliate of any Borrower as if
it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
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SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks (or when expressly
required hereby, all the Banks) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
nor any of their 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 Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any Borrower; (iii) the satisfaction of any condition
specified in Article III, except receipt of items required to be delivered to
the Agent; or (iv) the validity, effectiveness or genuineness of this Agreement,
the Notes or any other instrument or writing furnished in connection herewith.
The Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed by it to be genuine
or to be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with its role as Agent hereunder
or any action taken or omitted by such indemnitees in connection therewith.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such 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 or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its
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own credit decisions in taking or not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. AGENT'S FEE. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate
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or the London Interbank Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless a
Borrower notifies the Agent at least one Domestic Business Day before the date
of any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
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SECTION 8.02. ILLEGALITY. If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, 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 Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to
any Borrower and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and such Borrower, whereupon until such
Bank notifies such Borrower and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans to such Borrower shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully continue to maintain
and fund any of its outstanding Euro-Dollar Loans to such Borrower to maturity
and shall so specify in such notice, such Borrower shall immediately prepay in
full the then outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, such Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, 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
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any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the principal
of or interest on its Fixed Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its obligation to make
Fixed Rate Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or Applicable
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding (i) with respect to any CD
Loan any such requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Notes or
its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under
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its Note with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the Agent), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, on or after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, 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 any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including any determination by any such authority, central
bank or comparable agency that, for purposes of capital adequacy requirements,
the Commitments hereunder do not constitute commitments with an original
maturity of one year or less, which shall be deemed to be a change in the
interpretation and administration of such requirements), has or would have the
effect of reducing the rate of return on capital of such Bank (or its Parent) as
a consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring on or 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
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such
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Bank may use any reasonable averaging and attribution methods.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANs. If (i) the obligation of any Bank to make Euro-Dollar Loans to any
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) with respect to its CD Loans or
Euro-Dollar Loans and a Borrower shall, by at least three Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies such Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as CD Loans or Euro-Dollar Loans, as the case may be, shall be made
instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, to such Borrower has been repaid, all payments of principal which
would otherwise be applied to repay such Fixed Rate Loans shall be applied
to repay its Base Rate Loans to such Borrower instead.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible 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:
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SECTION 9.01. CORPORATE EXISTENCE AND POWER. It is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as then conducted.
SECTION 9.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its
certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or such
Eligible Subsidiary or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
SECTION 9.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of such Eligible Subsidiary and its Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of such Eligible Subsidiary, in each case enforceable in accordance
with their respective terms except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
SECTION 9.04. TAXES. Except as disclosed to the Banks in writing
prior to the delivery of such Election to Participate, there is no income, stamp
or other tax of any country, or any taxing authority thereof or therein, imposed
by or in the nature of withholding or otherwise, which is imposed on any payment
to be made by such Eligible Subsidiary pursuant hereto or on its Notes, or is
imposed on or by virtue of the execution, delivery or enforcement of its
Election to Participate, this Agreement or its Notes.
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ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by any Eligible Subsidiary pursuant to this Agreement, and the full and punctual
payment of all other amounts payable by any Eligible Subsidiary under this
Agreement. Upon failure by any Eligible Subsidiary to pay punctually any such
amount, the Company shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in this Agreement.
SECTION 10.02. 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 Eligible Subsidiary under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of any Eligible Subsidiary, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting any Eligible Subsidiary or its
assets, or any resultant release or discharge of the obligations of any
Eligible Subsidiary hereunder or under any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against
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any Eligible Subsidiary, the 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;
(vi) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
Note or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Company's obligations hereunder.
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
each Eligible Subsidiary under this Agreement shall have been paid in full. If
at any time any payment of any principal of or interest on any Note or any other
amount payable by any Eligible Subsidiary under this Agreement is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Eligible 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 10.04. 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 action be taken by any
Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. NO SUBROGATION. If the Company makes any payment
under this Article X in respect of any obligation of an Eligible Subsidiary, the
Company shall not
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be subrogated to the rights of the holder of such obligation against such
Eligible Subsidiary with respect to such payment.
SECTION 10.06. STAY OF ACCELERATION. In the event that acceleration
of the time for payment of any amount payable by any Eligible Subsidiary under
this Agreement or the Notes is stayed upon the insolvency, bankruptcy or
reorganization of such Eligible 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 made at the request of
the Required Banks.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of any Borrower or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof (or, in the case
of an Eligible Subsidiary, its Election to Participate), (y) in the case of any
Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Agent and the Company. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section and the
appropriate answerback is received, (ii) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Agent under
Article II or Article VIII shall not be effective until received.
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SECTION 11.02. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.03. EXPENSES; INDEMNIFICATION. (a) The Company shall pay
(i) all out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Agent or any Bank,
including (without duplication) the reasonable fees and disbursements of outside
counsel and the allocated cost of inside counsel, in connection with such Event
of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom. The Company shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this
Agreement, any Election to Participate or Election to Terminate or any Note.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; PROVIDED that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
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SECTION 11.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to the Note of any Borrower held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to the Note of such Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes of such Borrower held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes of such
Borrower held by the Banks shall be shared by the Banks pro rata; PROVIDED that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of a Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) change the provisions of
Article X; PROVIDED FURTHER that no such amendment, waiver or
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modification shall, unless signed by an Eligible Subsidiary, (w) subject such
Eligible Subsidiary to any additional obligation, (x) increase the principal of
or rate of interest on any outstanding Loan of such Eligible Subsidiary, (y)
accelerate the stated maturity of any outstanding Loan of such Eligible
Subsidiary or (z) change this PROVISO.
SECTION 11.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 11.05 without the consent of the Participant. The
Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
initial Commitment
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of not less than $5,000,000) of all, of its rights and obligations under this
Agreement and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit J hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Company and the Agent;
PROVIDED that if an Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment, no such consent shall be required,
but the Assignee and the transferor Bank shall provide prompt notice of such
assignment, together with information concerning addresses and related
information with respect to the Assignee, to the Agent; and PROVIDED FURTHER
that such assignment may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the
Borrowers shall make appropriate arrangements so that, if required, new Notes
are issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States or a state thereof, it shall deliver to the
Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.18.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
11.03(a) than such Bank would have been entitled to receive with respect to
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rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02 or 8.03 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) If any Reference Bank transfers its Notes to an unaffiliated
institution, the Agent shall, in consultation with the Company and with the
consent of the Required Banks, appoint another Bank to act as a Reference Bank
hereunder.
SECTION 11.07. COLLATERAL. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 11.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS. This Agreement, each Election to Participate, each Election to
Terminate and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. Each Borrower hereby appoints CT
Corporation System its authorized agent to accept and acknowledge service of any
and all processes which may be served in any suit, action or proceeding of the
nature referred to in this Section 11.08 and consents to process being served in
any such suit, action or proceeding upon CT Corporation System in any manner or
by the mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to such Borrower's address referred to in
Section 11.01; and (d) agrees that such service (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted
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by law, be taken and held to be valid personal service upon and personal
delivery to it. A copy of any summons or complaint served on an Eligible
Subsidiary pursuant to the foregoing shall be sent to the Company by registered
or certified mail. Each Eligible Subsidiary represents and warrants that CT
Corporation System has agreed in writing to accept such appointment and that
true copies of such acceptance will be furnished to the Agent prior to or
concurrently with delivery of such Eligible Subsidiary's Election to
Participate. Nothing in this Section 11.08 shall affect the right of any Bank to
serve process in any manner permitted by law or limit the right of any Bank to
bring proceedings against the Company or any Eligible Subsidiary in the courts
of any jurisdiction or jurisdictions.
SECTION 11.09. COUNTERPARTS; INTEGRATION. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GILLETTE COMPANY
By /s/ Gian U. Camuzzi
----------------------------------
Title: Senior Assistant
Commitments
- -----------
$28,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Sandra J.S. Kurek
----------------------------------
Title: Associate
65
<PAGE>
Commitments
- -----------
$22,000,000 CREDIT SUISSE
By /s/ Lynn Allegaert
----------------------------------
Title: Member of Senior
Management
By /s/ David W. Kratovil
----------------------------------
Title: Member of Senior
Management
$18,000,000 FLEET NATIONAL BANK
By /s/ Amy M. Tsokanis
----------------------------------
Title: Vice President
$18,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Kathy A. Sweeney
----------------------------------
Title: Assistant Vice President
$18,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Thomas M. Harkless
----------------------------------
Title: Vice President
66
<PAGE>
$12,000,000 ABN AMRO BANK N.V. NEW YORK
By /s/ George M. Dugan
----------------------------------
Title: Vice President
By /s/ John M. Kinney
----------------------------------
Title: Assistant Vice President
$12,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ John W. Pocalyko
----------------------------------
Title: Vice President
$12,000,000 THE BANK OF NOVA SCOTIA
By /s/ Terri M. Pitcher
----------------------------------
Title: Authorized Signatory
$12,000,000 CHEMICAL BANK
By /s/ Carol A. Ulmer
----------------------------------
Title: Vice President
$12,000,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By /s/ Stephen A. Wiedemann
----------------------------------
Title: Vice President
67
<PAGE>
By /s/ Thomas A. Foley
----------------------------------
Title: Assistant Vice President
$12,000,000 ROYAL BANK OF CANADA
By /s/ Sheryl L. Greenberg
----------------------------------
Title: Manager
$8,000,000 BANQUE PARIBAS
By /s/ John J. McCormick, III
----------------------------------
Title: Vice President
By /s/ Mary T. Finnegan
----------------------------------
Title: Group Vice President
$8,000,000 MELLON BANK, N.A.
By /s/ Joseph T. McDonald, Jr.
----------------------------------
Title: Vice President
$8,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Terence A. Snellings
----------------------------------
Title: Senior Vice President
- -----------------
Total Commitments
68
<PAGE>
$200,000,000
============
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Sandra J.S. Kurek
----------------------------------
Title: Associate
69
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of Borrower], a [jurisdiction of
incorporation] corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; PROVIDED that the failure of the Bank to make any such recordation
or endorsement shall not affect the
<PAGE>
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of April 30, 1996 among The Gillette Company, the banks
listed on the signature pages thereof and Morgan Guaranty Trust Company of New
York, as Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
The Gillette Company has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this note.*
[NAME OF BORROWER]
By
-------------------------
Title:
- -------------------
* To be deleted in case of Notes executed and delivered by the Company.
2
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- ------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
3
<PAGE>
- ------------------------------------------------------------------
4
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [Name of Borrower]
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of
April 30, 1996 among The Gillette Company, the Banks listed on
the signature pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period** Maturity Date
- ----------------- ----------------- -------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
- -------------------
*Amount must be $15,000,000 or a larger multiple of $1,000,000.
**Not less than one month (LIBOR Auction) or not less than 15 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By________________________
Title:
2
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name
of Borrower] (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
April 30, 1996 among The Gillette Company, the Banks parties thereto and the
undersigned, as Agent, we are pleased on behalf of the Borrower to invite you to
submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period Maturity Date
- ---------------- --------------- -------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:15
A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
--------------------------
To: Morgan Guaranty Trust Company of New York,
as Agent
Re: Money Market Quote to [Name of Borrower]
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
-------- --------- ---------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $____________.]**
------------------
* As specified in the related Invitation.
<PAGE>
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of April 30, 1996 among The Gillette Company, the Banks
listed on the signature pages thereof and yourselves, as Agent, irrevocably
obligates us to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- -------------------
amount the Bank is willing to lend. Bids must be made for $5,000,000 or a larger
multiple of $1,000,000.
*** Not less than one month or not less than 15 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
2
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY
-----------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am Vice Chairman of the Board of The Gillette Company (the
"Company"), and I am rendering this opinion pursuant to Section 3.01(c) of the
364-Day Credit Agreement dated as of April 30, 1996 among the Company, the banks
parties thereto and Morgan Guaranty Trust Company of New York, as Agent (the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
I have examined or caused to be examined by counsel retained by or
on the staff of the Company, among other things, originals or copies, certified
or otherwise identified to my satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted or have had conducted such other investigations of fact and law as I
have deemed necessary or advisable for purposes of this opinion.
I am admitted to practice in the State of Ohio and the Commonwealth
of Massachusetts. No opinion is expressed herein with respect to or as to the
effect of any laws other than the laws of the Commonwealth of Massachusetts, the
federal laws of the United States of America and the General Corporation Law of
the State of Delaware.
<PAGE>
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes issued by it are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Company or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company and known to me or, to the best of my
knowledge, result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
3. The provision in Section 11.08 of the Credit Agreement that the
Credit Agreement and each Note shall be construed in accordance with and
governed by the law of the State of New York is a valid choice of law provision
under Massachusetts law and should be respected by a court sitting in
Massachusetts.
4. If a court sitting in Massachusetts were to apply Massachusetts
law as the law governing the Credit Agreement and the Notes, the Credit
Agreement would constitute a valid and binding agreement of the Company and the
Notes issued by it would constitute valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms.
5. Except as disclosed in the Company's 1995 Form 10-K and the
Company's Latest Form 10-Q, there is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official, in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, operations or
2
<PAGE>
financial condition of the Company and its Consolidated Subsidiaries, considered
as a whole, or which in any manner draws into question the validity of the
Credit Agreement or the Notes.
My opinion in paragraph 4 above as to the enforceability of the
Credit Agreement and the Notes issued by the Company is subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights in general, usury laws, and the general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). With respect to the foregoing, I express no
opinion, however, as to the enforceability of Section 11.03(b) of the Credit
Agreement to the extent the rights to indemnification provided for therein are
violative of any law, rule or regulation (including any federal or state
securities law, rule or regulation) or public policy.
To the extent that the obligations of the Company may be dependent
upon such matters, I assume for purposes of this opinion that each Bank is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation; and that the Credit Agreement has been duly
authorized, executed and delivered by the Banks and constitutes the legal, valid
and binding obligation of the Banks, enforceable against the Banks in accordance
with its terms. I do not express any opinion as to the effect of the compliance
by any of the Banks with any state or federal laws or as to the regulatory
status or nature of the business of any of the Banks.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without my prior written consent.
Very truly yours,
Joseph E. Mullaney
3
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the 364-Day Credit
Agreement (the "Credit Agreement") dated as of April 30, 1996 among The Gillette
Company, a Delaware corporation (the "Company"), the banks parties thereto (the
"Banks") and Morgan Guaranty Trust Company of New York, as Agent (the "Agent"),
and have acted as special counsel for the Agent for the purpose of rendering
this opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms defined
in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes are within the
<PAGE>
Company's corporate powers and have been duly authorized by all necessary
corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Company and each Note issued by it constitutes a valid and binding
obligation of the Company, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Bank is located which limits the rate of interest that such Bank may
charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE>
EXHIBIT G
FORM OF ELECTION TO PARTICIPATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the 364-
Day Credit Agreement dated as of April 30, 1996
among The Gillette Company,
such Banks and such Agent (as amended
from time to time, the "Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Article IX of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of an Eligible
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation Sections 11.08 and 11.10 thereof, as if
the undersigned were a signatory party thereto.
[Tax disclosure pursuant to Section 9.04, if any]
<PAGE>
The address to which all notices to the undersigned Eligible
Subsidiary under the Credit Agreement should be directed is: .
This instrument shall be construed in accordance with and governed by the
laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By____________________________
Title:
The undersigned hereby confirms that [name of Eligible Subsidiary]
is an Eligible Subsidiary for purposes of the Credit Agreement described above.
THE GILLETTE COMPANY
By____________________________
Title:
Receipt of the above Election to Participate is hereby acknowledged
on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Title:
2
<PAGE>
EXHIBIT H
FORM OF ELECTION TO TERMINATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the 364-Day Credit
Agreement dated as of
April 30, 1996 among The Gillette
Company, such Banks and such Agent
(as amended from time to time,
the "Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to terminate its status as an Eligible
Subsidiary for purposes of the Credit Agreement, effective as of the date
hereof. The undersigned hereby represents and warrants that all principal and
interest on all Notes of the undersigned and all other amounts payable by the
undersigned pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof. Notwithstanding the foregoing, this Election to Terminate
shall not affect any obligation of the undersigned under the Credit Agreement or
under any Note heretofore incurred.
This instrument shall be construed in accordance with and governed
by the laws of the State of New York.
Very truly yours,
<PAGE>
[NAME OF ELIGIBLE SUBSIDIARY]
By
-------------------------
Title:
The undersigned hereby confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
THE GILLETTE COMPANY
By
-------------------------
Title:
Receipt of the above Election to Terminate is hereby acknowledged on
and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
-------------------------
Title:
2
<PAGE>
EXHIBIT I
OPINION OF
COUNSEL FOR THE BORROWER
(BORROWINGS BY ELIGIBLE SUBSIDIARIES)
[date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am counsel to [name of Eligible Subsidiary, jurisdiction of
incorporation] (the "Borrower") and give this opinion pursuant to Section
3.03(b) of the 364-Day Credit Agreement (as amended to the date hereof, the
"Credit Agreement") dated as of April 30, 1996 among The Gillette Company (the
"Company"), the banks parties thereto and Morgan Guaranty Trust Company of New
York, as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of [jurisdiction of incorporation] and is a
Substantially-Owned Consolidated Subsidiary of the Company.
<PAGE>
2. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Borrower or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower.
3. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes do not contravene, or constitute a default under, any
provision of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any of its Subsidiaries and known to me
or, to the best of my knowledge, result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.*
4. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and its Notes constitute valid and binding obligations of the
Borrower, in each case enforceable in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
Very truly yours,
- -------------------
* The opinion in this paragraph may be given by Counsel for the Company.
2
<PAGE>
EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), THE GILLETTE COMPANY (the "Company")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of April 30, 1996 among the
Company, the Assignor and the other Banks party thereto, as Banks, and the Agent
(as amended and in effect on the date hereof, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of [a portion of]
its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with [a corresponding portion of] its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
<PAGE>
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other
- -------------------
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
<PAGE>
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. CONSENT OF THE COMPANY AND THE AGENT. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
11.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 11.06(c) the
Borrower agrees to execute and deliver a Note [and to cause each Eligible
Subsidiary to execute and deliver a Note] payable to the order of the Assignee
to evidence the assignment and assumption provided for herein.]*
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrowers.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
- -------------------
*Consent is required if the Assignee is not an affiliate of the Assignor
and was not a Bank immediately prior to the assignment.
3
<PAGE>
[ASSIGNOR]
By
--------------------------
Title:
[ASSIGNEE]
By
--------------------------
Title:
[THE GILLETTE COMPANY]
By
--------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------
Title:
4
<PAGE>
[CONFORMED COPY]
$500,000,000
MULTI-YEAR CREDIT AGREEMENT
dated as of
April 30, 1996
among
The Gillette Company,
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
<PAGE>
TABLE OF CONTENTS*
Page
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Accounting Terms and Determinations................. 13
SECTION 1.03. Types of Borrowings................................. 13
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend................................. 14
SECTION 2.02. Notice of Committed Borrowing....................... 14
SECTION 2.03. Money Market Borrowings............................. 15
SECTION 2.04. Notice to Banks; Funding of Loans................... 19
SECTION 2.05. Notes............................................... 20
SECTION 2.06. Maturity of Loans................................... 21
SECTION 2.07. Interest Rates...................................... 21
SECTION 2.08. Facility Fee........................................ 24
SECTION 2.09. Optional Termination or Reduction of
Commitments......................................... 25
SECTION 2.10. Scheduled Termination of Commitments................ 25
SECTION 2.11. Optional Prepayments................................ 25
SECTION 2.12. General Provisions as to Payments................... 25
SECTION 2.13. Funding Losses...................................... 26
SECTION 2.14. Computation of Interest and Fees.................... 27
SECTION 2.15. Judgment Currency................................... 27
SECTION 2.16. Foreign Withholding Taxes and Other Costs........... 28
SECTION 2.17. Regulation D Compensation........................... 28
SECTION 2.18. Withholding Tax Exemption........................... 29
ARTICLE III
- --------
*The Table of Contents is not a part of this Agreement.
i
<PAGE>
Page
----
CONDITIONS
SECTION 3.01. Effectiveness....................................... 30
SECTION 3.02. Borrowings.......................................... 31
SECTION 3.03. First Borrowing by Each Eligible Subsidiary......... 32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power....................... 32
SECTION 4.02. Corporate and Governmental Authorization;
Contravention....................................... 32
SECTION 4.03. Binding Effect...................................... 33
SECTION 4.04. Financial Information............................... 33
SECTION 4.05. No Material Adverse Change.......................... 33
SECTION 4.06. Compliance with ERISA............................... 33
SECTION 4.07. Litigation.......................................... 34
SECTION 4.08. Taxes............................................... 34
SECTION 4.09. Full Disclosure..................................... 34
ARTICLE V
COVENANTS
SECTION 5.01. Information......................................... 35
SECTION 5.02. Maintenance of Property; Insurance.................. 37
SECTION 5.03. Conduct of Business and Maintenance of
Existence........................................... 37
SECTION 5.04. Compliance with Laws................................ 38
SECTION 5.05. Earnings to Interest Expense Ratio.................. 38
SECTION 5.06. Negative Pledge..................................... 38
SECTION 5.07. Consolidations, Mergers and Sales of Assets......... 39
SECTION 5.08. Material Subsidiary Cash Flow....................... 39
SECTION 5.09. Use of Proceeds..................................... 39
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default................................... 40
SECTION 6.02. Notice of Default................................... 42
ARTICLE VII
ii
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Page
----
THE AGENT
SECTION 7.01. Appointment and Authorization....................... 43
SECTION 7.02. Agent and Affiliates................................ 43
SECTION 7.03. Action by Agent..................................... 43
SECTION 7.04. Consultation with Experts........................... 43
SECTION 7.05. Liability of Agent.................................. 43
SECTION 7.06. Indemnification..................................... 44
SECTION 7.07. Credit Decision..................................... 44
SECTION 7.08. Successor Agent..................................... 44
SECTION 7.09. Agent's Fee......................................... 45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair................................ 45
SECTION 8.02. Illegality.......................................... 46
SECTION 8.03. Increased Cost and Reduced Return................... 46
SECTION 8.04. Base Rate Loans Substituted for Affected
Fixed Rate Loans.................................... 48
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power....................... 49
SECTION 9.02. Corporate and Governmental Authorization;
Contravention....................................... 49
SECTION 9.03. Binding Effect...................................... 49
SECTION 9.04. Taxes............................................... 50
ARTICLE X
GUARANTY
SECTION 10.01. The Guaranty........................................ 50
SECTION 10.02. Guaranty Unconditional.............................. 50
SECTION 10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances.............. 51
SECTION 10.04. Waiver by the Company............................... 51
SECTION 10.05. No Subrogation...................................... 52
SECTION 10.06. Stay of Acceleration................................ 52
iii
<PAGE>
Page
----
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices............................................. 52
SECTION 11.02. No Waivers.......................................... 53
SECTION 11.03. Expenses; Indemnification........................... 53
SECTION 11.04. Sharing of Set-Offs................................. 53
SECTION 11.05. Amendments and Waivers.............................. 54
SECTION 11.06. Successors and Assigns.............................. 55
SECTION 11.07. Collateral.......................................... 57
SECTION 11.08. Governing Law; Submission to Jurisdiction;
Service of Process.................................. 57
SECTION 11.09. Counterparts; Integration. ........................ 58
SECTION 11.10. WAIVER OF JURY TRIAL................................ 58
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Company
Exhibit F - Opinion of Special Counsel for the Agent
Exhibit G - Form of Election to Participate
Exhibit H - Form of Election to Terminate
Exhibit I - Opinion of Counsel for the Borrower (Borrowings by
Eligible Subsidiaries)
Exhibit J - Assignment and Assumption Agreement
iv
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of April 30, 1996 among THE GILLETTE COMPANY, the
BANKS listed on the signature pages hereof and MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms,as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted Consolidated Earnings Before Interest and Taxes" means,
for any fiscal period, (i) Consolidated Earnings Before Interest and Taxes for
such fiscal period LESS (ii) interest expense attributable to Brazilian Debt to
the extent that such interest expense is included in the calculation of Gross
Interest Expense for such fiscal period.
"Adjusted Gross Interest Expense" means, for any fiscal period, (i)
Gross Interest Expense for such fiscal period LESS (ii) interest expense
attributable to Brazilian Debt to the extent that such interest expense is
included in the calculation of Gross Interest Expense for such fiscal period.
<PAGE>
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 11.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing
or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group and not excepted by Section 4(b) of ERISA.
"Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means all
of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
2
<PAGE>
"Brazilian Debt" means Debt of the Company or any of its
Consolidated Subsidiaries (i) that is denominated solely in lawful money of the
Federal Republic of Brazil and (ii) the proceeds of which are (or have been)
used to finance the operations from time to time located in Brazil of the
Company or any of its Subsidiaries.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan
in accordance with the applicable Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means The First National Bank of Boston, The
First National Bank of Chicago and Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages of this Agreement, as such
amount may be reduced from time to time pursuant to Sections 2.09 and 2.10.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01.
"Company" means The Gillette Company, a Delaware corporation, and
its successors.
"Company's 1995 Form 10-K" means the Company's annual report on Form
10-K for 1995, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"Consolidated Assets" means at any date the consolidated assets of the
Company and its Consolidated Subsidiaries determined as of such date.
"Consolidated Earnings Before Interest and Taxes" means, for any
fiscal period, the sum of (i) Consolidated Net Income plus (ii) Gross Interest
Expense plus (iii) to the extent deducted in determining Consolidated Net
Income,
3
<PAGE>
provision for taxes on income, all determined on a consolidated basis
for the Company and its Consolidated Subsidiaries for such fiscal period.
"Consolidated Net Income" means, for any fiscal period, the net income
(before preferred and common stock dividends) of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis for such fiscal
period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, and (vi) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions,
excluding any amounts which the Borrower is entitled to set-off against its
obligations under applicable law.
4
<PAGE>
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City or Boston, Massachusetts
are authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Agent; PROVIDED that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit G hereto.
"Election to Terminate" means an Election to Terminate substantially
in the form of Exhibit H hereto.
"Eligible Subsidiary" means any Substantially-Owned Consolidated
Subsidiary of the Company as to which an Election to Participate shall have been
delivered to the Agent and as to which an Election to Terminate shall not have
been delivered to the Agent. Each such Election to Participate and Election to
Terminate shall be duly executed on behalf of such Substantially-Owned
Consolidated Subsidiary and the Company in such number of copies as the Agent
may request. The delivery of an Election to Terminate shall not affect any
obligation of an Eligible Subsidiary
5
<PAGE>
theretofore incurred. The Agent shall promptly give notice to the Banks of the
receipt of any Election to Participate or Election to Terminate.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal London offices of
The First National Bank of Boston, Credit Suisse and Morgan Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
6
<PAGE>
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Multi-Year Credit Agreement
dated as of June 21, 1994, among the Company, the bank parties thereto and
Morgan Guaranty Trust Company of New York, as agent, as amended to the Effective
Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.01(ii)) or any combination of the foregoing.
"Gross Interest Expense" means, for any fiscal period, the
consolidated interest expense of the Company and its Consolidated Subsidiaries
for such period (calculated without deducting or otherwise netting consolidated
interest income of the Company and its Consolidated Subsidiaries).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
7
<PAGE>
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions, by "comfort letter" or other similar
undertaking of support or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the holder of such Debt of the payment thereof or
to protect such holder against loss in respect thereof (in whole or in part),
PROVIDED that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60,
8
<PAGE>
90, or 180 days thereafter, as the Borrower may elect in the applicable Notice
of Borrowing; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter as
the Borrower may elect in accordance with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
9
<PAGE>
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 15 days) as the Borrower may elect in accordance
with Section 2.03; PROVIDED that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loanor a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Material Debt" means Debt (other than the Notes) of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding $50,000,000.
10
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"Material Financial Obligations" means a principal amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $50,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Material Subsidiary" means any Subsidiary which either (A) is an
Eligible Subsidiary or (B) has consolidated assets, together with its
Subsidiaries, exceeding 5% of Consolidated Assets at the date of determination
of its status hereunder.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Company
and the Agent; PROVIDED that any Bank may from time to time by notice to the
Company and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(ii)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
11
<PAGE>
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
12
<PAGE>
employees of any Person which was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank to any
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to but excluding the Termination Date.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests 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 owned by such Person;
unless otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"Substantially-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary not less than 90% of the outstanding shares of each class of capital
stock or other ownership interests of which are at the time directly or
indirectly owned by the Company.
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"Termination Date" means April 30, 2001, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Banks; PROVIDED that, if the Company notifies the Agent that the Company
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Company that the Required Banks wish to amend
Article V for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
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SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (E.G., a "Euro-Dollar Borrowing"
is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article II under which participation therein is determined (I.E.,
a "Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Money Market Borrowing"
is a Borrowing under Section 2.03 in which the Bank participants are determined
on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Company or any Eligible Subsidiary pursuant to
this Section from time to time in amounts such that the aggregate principal
amount of Committed Loans by such Bank at any one time outstanding to all
Borrowers shall not exceed the amount of its Commitment. Each Borrowing under
this Section shall be in an aggregate principal amount of $15,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02(b)) and shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, a Borrower may borrow under this Section, repay or,
to the extent permitted by Section 2.11, prepay Loans and reborrow at any time
during the Revolving Credit Period under this Section.
SECTION 2.02. NOTICE OF COMMITTED BORROWING. The Borrower shall give
the Agent notice (a "Notice of Committed Borrowing") not later than 10:15 A.M.
(New York City time) on (x) the date of each Base Rate Borrowing, (y) the
Domestic Business Day before each CD Borrowing and (z) the
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third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. MONEY MARKET BORROWINGS.
(a) THE MONEY MARKET OPTION. In addition to Committed Borrowings
pursuant to Section 2.01, any Borrower may, as set forth in this Section,
request the Banks during the Revolving Credit Period to make offers to make
Money Market Loans to such Borrower. The Banks may, but shall have no obligation
to, make such offers and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section.
(b) MONEY MARKET QUOTE REQUEST. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Agent shall have mutually agreed and the Agent shall
have notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying:
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(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$15,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
referred to in or pursuant to Section 11.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M. (New York
City time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
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Company and the Agent shall have mutually agreed and the Agent shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective); PROVIDED that Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Agent or such affiliate notifies the Borrower of the terms
of the offer or offers contained therein not later than (x) one hour prior to
the deadline for the other Banks, in the case of a LIBOR Auction or (y) 15
minutes prior to the deadline for the other Banks, in the case of an Absolute
Rate Auction. Subject to Articles III and VI, any Money Market Quote so made
shall be irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000 (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of Money Market
Loans for which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
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A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO BORROWER. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 10:15 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
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proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Company and the Agent shall have
mutually agreed and the Agent shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$15,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) ALLOCATION BY AGENT. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
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SECTION 2.04. NOTICE TO BANKS; FUNDING OF LOANS.
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at
its address referred to in Section 11.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day on
which such Borrower is to repay all or any part of an outstanding Loan from such
Bank, such Bank shall apply the proceeds of its new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed by such Borrower and the amount being repaid shall be made available by
such Bank to the Agent as provided in subsection (b), or remitted by such
Borrower to the Agent as provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto
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pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement.
SECTION 2.05. NOTES. (a) The Loans of each Bank to each Borrower
shall be evidenced by a single Note of such Borrower payable to the order of
such Bank for the account of its Applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent, request
that its Loans of a particular type to such Borrower be evidenced by a separate
Note of such Borrower in an amount equal to the aggregate unpaid principal
amount of such Loans. Each such Note shall be in substantially the form of
Exhibit A hereto with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference in this Agreement to
a "Note" or the "Notes" of such Bank shall be deemed to refer to and include any
or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b) or
3.03(a), the Agent shall forward such Note to such Bank. Each Bank shall record
the date, amount, type and maturity of each Loan made by it to each Borrower and
the date and amount of each payment of principal made with respect thereto, and
may, if such Bank so elects in connection with any transfer or enforcement of
its Note of any Borrower, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan to such Borrower then outstanding; PROVIDED that the failure of any
Bank to make any such recordation or endorsement shall not affect the
obligations of any Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by each Borrower so to endorse its Notes and to attach to
and make a part of any Note a continuation of any such schedule as and when
required.
SECTION 2.06. MATURITY OF LOANS. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
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SECTION 2.07. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 1% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day plus the Adjusted
CD Rate applicable to such Interest Period; PROVIDED that if any CD Loan shall,
as a result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall bear interest during
such Interest Period at the rate applicable to Base Rate Loans during such
period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 90 days, at intervals of 90
days after the first day thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 1% plus the higher of (i) the sum of the CD Margin
for such day plus the Adjusted CD Rate applicable to the Interest Period for
such Loan and (ii) the rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
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[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
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comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 1% plus the Euro-Dollar Margin for
such day plus the London Interbank Offered Rate applicable to the Interest
Period for such Loan and (ii) the sum of 1% plus the Euro-Dollar Margin for such
day plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than six
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months as the Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Euro-Dollar Reference Banks are
offered to such Euro-Dollar Reference Bank in the London interbank market for
the applicable period determined as PROVIDED above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01(ii), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
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SECTION 2.08. FACILITY FEE. (a) The Company shall pay to the Agent
for the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the Commitments in their
entirety), on the daily aggregate amount of the Commitments (whether used or
unused) and (ii) from and including the Termination Date or such earlier date of
termination to but excluding the date the Loans shall be repaid in their
entirety, on the daily aggregate outstanding principal amount of the Loans.
(b) PAYMENTS. Accrued facility fees under this Section shall be
payable quarterly on each March 31, June 30, September 30 and December 31,
beginning with June 30, 1996, and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS.
During the Revolving Credit Period, the Company may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate the Commitments at
any time, if no Loans are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 or any larger multiple
thereof, the aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. SCHEDULED TERMINATION OF COMMITMENTS. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS. (a) A Borrower may, by notice to
the Agent prior to 10:00 A.M. (New York City time) at least one Domestic
Business Day before the date for which prepayment under this Section is sought,
prepay any Base Rate Borrowing (or any Money Market LIBOR Borrowing bearing
interest at the Base Rate pursuant to Section 8.01(ii)) by it in whole at any
time, or from time to time in part in amounts aggregating $25,000,000 or any
larger multiple of $5,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon
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to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such Borrowing.
(b) Except as PROVIDED in Section 8.02, no Borrower may prepay all
or any portion of the principal amount of any Fixed Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrowers
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Dollars in Federal or other funds immediately available in New York City, to
the Agent at its address referred to in Section 11.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks. Whenever any payment of principal of, or
interest on, the Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the 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 may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon
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such assumption, 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 that such Borrower
shall not have so made such payment, each Bank shall repay to the Agent
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, at the Federal Funds
Rate.
SECTION 2.13. FUNDING LOSSES. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section
2.07(d), or if a Borrower fails to borrow any Fixed Rate Loans after notice has
been given to any Bank in accordance with Section 2.04(a), such Borrower shall
reimburse each Bank on demand for any resulting loss or expense incurred by it
(or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow, PROVIDED that such Bank shall have
delivered to such Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and all
facility fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
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SECTION 2.15. JUDGMENT CURRENCY. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder or under any of the Notes in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase Dollars with such other currency at
the Agent's New York office on the Domestic Business Day preceding that on which
final judgment is given. The obligations of each Borrower in respect of any sum
due to any Bank or the Agent hereunder or under any Note shall, notwithstanding
any judgment in a currency other than Dollars, be discharged only to the extent
that on the Domestic Business Day following receipt by such Bank or the Agent
(as the case may be) of any sum adjudged to be so due in such other currency
such Bank or the Agent (as the case may be) may in accordance with normal
banking procedures purchase Dollars with such other currency; if the amount of
Dollars so purchased is less than the sum originally due to such Bank or the
Agent, as the case may be, in Dollars, each Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such loss, and if the amount of Dollars so purchased
exceeds (a) the sum originally due to any Bank or the Agent, as the case may be,
and (b) any amounts shared with other Banks as a result of allocations of such
excess as a disproportionate payment to such Bank under Section 11.04, such Bank
or the Agent, as the case may be, agrees to remit such excess to the appropriate
Borrower.
SECTION 2.16. FOREIGN WITHHOLDING TAXES AND OTHER COSTS. (a) All
payments by an Eligible Subsidiary of principal of and interest on its Notes and
of all other amounts payable under this Agreement are payable without deduction
for or on account of any present or future taxes, duties or other charges levied
or imposed by the government of any jurisdiction outside the United States or by
any political subdivision or taxing authority thereof or therein through
withholding or deduction with respect to any such payments. If any such taxes,
duties or other charges are so levied or imposed, such Eligible Subsidiary will
pay additional interest or will make additional payments in such amounts so that
every net payment of principal of and
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interest on its Notes and of all other amounts payable by it under this
Agreement, after withholding or deduction for or on account of any such present
or future taxes, duties or other charges, will not be less than the amount
PROVIDED for herein. Such Eligible Subsidiary shall furnish promptly to the
Agent official receipts evidencing such withholding or deduction.
(b) If the cost to any Bank of making or maintaining any Loan to an
Eligible Subsidiary is increased, or the amount of any sum received or
receivable by any Bank (or its Applicable Lending Office) is reduced by an
amount deemed by such Bank to be material, by reason of the fact that such
Eligible Subsidiary is incorporated in, or conducts business in, a jurisdiction
outside the United States the Borrower shall indemnify such Bank for such
increased costs or reduction within 15 days after demand by such Bank (with a
copy to the Agent and the Company). A certificate of such Bank claiming
compensation under this subsection (b) and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge that will entitle such Bank to additional
interest or payments pursuant to subsection (b) and will designate a different
Applicable Lending Office, if, in the judgment of such Bank, such designation
will avoid the need for, or reduce the amount of, such compensation and will not
be otherwise disadvantageous to such Bank.
SECTION 2.17. REGULATION D COMPENSATION. Each Bank may require any
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans to such Borrower, additional interest on the related
Euro-Dollar Loan to such Borrower of such Bank at a rate per annum determined by
such Bank up to but not exceeding the excess of (i) (A) the applicable London
Interbank Offered Rate divided by (B) one MINUS the Euro-Dollar Reserve
Percentage over (ii) the applicable London Interbank Offered Rate. Any Bank
wishing to require payment of such additional interest (x) shall so notify such
Borrower and the Agent, in which case such additional interest on the
Euro-Dollar Loans to such Borrower of such Bank shall be payable to such Bank at
the place indicated in such notice with respect to each Interest Period
commencing at least three Euro-Dollar
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Business Days after the giving of such notice, and (y) shall notify such
Borrower at least five Euro-Dollar Business Days prior to each date on which
interest is payable on the Euro- Dollar Loans to such Borrower of the amount
then due it under this Section.
SECTION 2.18. WITHHOLDING TAX EXEMPTION. At least five Domestic
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States or a state thereof agrees that it will deliver to
each of the Company and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either case that such
Bank is entitled to receive payments from the Company under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Agent two additional copies of such form
(or a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Company or the Agent, in
each case certifying that such Bank is entitled to receive payments from the
Company under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank advises the
Company and the Agent that it is not capable of receiving such payments without
any deduction or withholding of United States federal income tax.
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ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. This Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 11.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex, facsimile transmission or other
written confirmation from such party of execution of a counterpart hereof
by such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of the Company dated on or before the Effective Date
complying with the provisions of Section 2.05;
(c) receipt by the Agent of an opinion of the General Counsel of the
Company (or other counsel for the Company reasonably satisfactory to the
Agent), substantially in the form of Exhibit E hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit F
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(e) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Company, the corporate authority for and
the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent; and
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(f) receipt by the Agent of evidence satisfactory to it of the
payment of all principal and interest on any loans outstanding under, and
of all other amounts payable under, the Existing Credit Agreement;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied no later than
May 15, 1996. The Agent shall promptly notify the Company and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all parties
hereto. The Banks that are parties to the Existing Credit Agreement, comprising
the "Required Banks" as defined therein, and the Company agree to eliminate the
requirement under Section 2.09 of the Existing Credit Agreement that notice of
optional termination of the commitments thereunder be given three Domestic
Business Days in advance, and further agree that the commitments under the
Existing Credit Agreement shall terminate in their entirety simultaneously with
and subject to the effectiveness of this Agreement and that the Company shall be
obligated to pay the accrued facility fees thereunder to but excluding the date
of such effectiveness.
SECTION 3.02. BORROWINGS. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Company
and the Borrower (if other than the Company) contained in this Agreement
(except, in the case of a Refunding Borrowing, the representations and
warranties set forth in Sections 4.05 and 4.07 as to any matter which has
theretofore
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been disclosed in writing by the Company to the Banks) shall be true in
all material respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company and the Borrower (if other than the Company) on the date of such
Borrowing as to the facts specified in clauses (b), (c) and (d) of this Section.
SECTION 3.03. FIRST BORROWING BY EACH ELIGIBLE SUBSIDIARY. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Agent for the account of each Bank of a duly
executed Note of such Eligible Subsidiary, dated on or before the date of
such Borrowing complying with the provisions of Section 2.05;
(b) receipt by the Agent of an opinion of counsel for such Eligible
Subsidiary acceptable to the Agent, substantially in the form of Exhibit I
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request; and
(c) receipt by the Agent of all documents which it may reasonably
request relating to the existence of such Eligible Subsidiary, the
corporate authority for and the validity of the Election to Participate of
such Eligible Subsidiary, this Agreement and the Notes of such Eligible
Subsidiary, and any other matters relevant thereto, all in form and
substance satisfactory to the Agent.
The documents referred to in this Section 3.03 shall be delivered to the Agent
by an Eligible Subsidiary no later than the date of the first Borrowing by such
Eligible Subsidiary.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVETION.
The execution, delivery and performance by the Company of this Agreement and
its Notes are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Company or result in the creation or imposition of any Lien on any asset of
the Company or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company and its Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Company, in each case enforceable in accordance with their respective terms
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. FINANCIAL INFORMATION. The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of December 31, 1995 and the
related consolidated statements of income and cash flows for the fiscal year
then ended, reported on by KPMG Peat Marwick LLP and set forth in the Company's
Annual Report to Shareholders for 1995 incorporated by reference in the
Company's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated
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financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year.
SECTION 4.05. NO MATERIAL ADVERSE CHANGE. Since December 31, 1995
there has been no material adverse change in the business, operations or
financial condition of the Company and its Consolidated Subsidiaries, considered
as a whole.
SECTION 4.06. COMPLIANCE WITH ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
if such failure or amendment has resulted, or there is a reasonable possibility
that it could result, in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
SECTION 4.07. LITIGATION. Except as disclosed in the Company's 1995
Form 10-K, there is no action, suit, investigation or proceeding pending
against, or to the knowledge of the Company threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could materially adversely affect the business,
operations or financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole, or which in any manner draws into question the
validity of this Agreement or the Notes.
SECTION 4.08. TAXES. The Company has filed (or has obtained extensions
of the time by which it is required to file) all United States federal income
tax returns and all other material tax returns required to be filed by it
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and has paid all taxes shown due on the returns so filed as well as all other
material taxes, assessments and governmental charges which have become due,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided.
SECTION 4.09. FULL DISCLOSURE. All information heretofore furnished by
the Company to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Company to the Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. The Company has disclosed to the Banks in writing any and
all facts which materially and adversely affect or may affect (to the extent the
Company can now reasonably foresee), the business, operations or financial
condition of the Company and its Consolidated Subsidiaries, taken as a whole, or
the ability of the Company to perform its obligations under this Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. INFORMATION. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income and cash flows for
such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by KPMG Peat Marwick
LLP or other independent public accountants of nationally recognized
standing;
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(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Company, (i) a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter, (ii) the related
consolidated statements of income for such quarter and for the portion of
the Company's fiscal year ended at the end of such quarter and (iii) the
related consolidated statement of cash flows for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in
cases (ii) and (iii) in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the principal accounting
officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the principal accounting officer of the Company
(i) setting forth in reasonable detail the calculations required to
establish whether the Company was in compliance with the requirements of
Section 5.05 on the date of such financial statements and (ii) stating
whether there exists on the date of such certificate any Default and, if
any Default then exists, setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that there existed on the date of such statements any Default and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default, a certificate of
the chief financial officer or the
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principal accounting officer of the Company setting forth the details
thereof and the action which the Company is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Company shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might reasonably
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; or (iv) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement, if such failure or amendment has resulted, or there is a
reasonable possibility that it could result, in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal
Revenue Code, a certificate of the chief financial officer, the
principal accounting officer or the treasurer of the Company setting
forth details as to such occurrence and action, if any, which the
Company or applicable member of the ERISA Group is required or proposes
to take;
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(i) promptly upon any change in the rating by Standard & Poor's
Ratings Services or Moody's Investors Service, Inc. of the Company's
outstanding public senior unsecured long-term debt securities or the
Company's outstanding commercial paper, a notice reporting such change and
stating the date on which such change was announced by the relevant rating
agency; and
(j) from time to time such additional information regarding the
business, operations or financial condition of the Company and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. MAINTENANCE OF PROPERTY; INSURANCE. The Company will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted; will maintain, and will cause each Subsidiary to maintain (either in
the name of the Company or in such Subsidiary's own name) with financially sound
and reputable insurance companies, insurance on all their property in at least
such amounts and against at least such risks as are usually insured against in
the same general area by companies of established repute engaged in the same or
a similar business; and will furnish to the Banks, upon written request from the
Agent, such information as may be reasonably requested as to the insurance
carried.
SECTION 5.03. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Company will preserve, renew and keep in full force and effect its corporate
existence and its rights, privileges and franchises necessary or desirable in
the normal conduct of business.
SECTION 5.04. COMPLIANCE WITH LAWS. The Company will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, ERISA and the rules and regulations thereunder)
except where the necessity of compliance therewith is contested in good faith by
appropriate proceedings.
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SECTION 5.05. EARNINGS TO INTEREST EXPENSE RATIO. At the end of
each fiscal quarter of the Company, the ratio of (x) Adjusted Consolidated
Earnings Before Interest and Taxes for the four fiscal quarters then ended to
(y) Adjusted Gross Interest Expense for the four fiscal quarters then ended
will not be less than 6.50:1.
SECTION 5.06. NEGATIVE PLEDGE. Neither the Company nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding on
the date hereof in an aggregate principal amount not exceeding
$25,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
PROVIDED that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, PROVIDED that such Debt is not
increased and is not secured by any additional assets;
(g) any Lien arising pursuant to any order of attachment, distraint
or similar legal process arising in connection with court proceedings so
long as the execution or other enforcement thereof is effectively
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stayed and the claims secured thereby are being contested in good faith by
appropriate proceedings;
(h) Liens incidental to the conduct of its business or the ownership
of its assets which (i) do not secure Debt or Derivatives Obligations and
(ii) do not in the aggregate materially detract from the value of its
assets or materially impair the use thereof in the operation of its
business;
(i) Liens on cash and cash equivalents securing Derivatives
Obligations, PROVIDED that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $25,000,000; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Assets.
SECTION 5.07. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Company
will not (i) consolidate or merge with or into any other Person or (ii) sell,
lease or otherwise transfer, directly or indirectly, all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, to any other
Person; PROVIDED that the Company may merge with a Subsidiary if (A) the Company
is the corporation surviving such merger and (B) immediately after giving effect
to such merger, no Default shall have occurred and be continuing.
SECTION 5.08. MATERIAL SUBSIDIARY CASH FLOW. The Company will not, and
will not permit any Material Subsidiary to, enter into any arrangement which
restricts the ability of any Material Subsidiary, directly or indirectly, to
make funds available to the Company, whether by way of dividend or other
distribution, advance or otherwise.
SECTION 5.09. USE OF PROCEEDS. The proceeds of Loans hereunder will
be used by the Borrowers for their general corporate purposes, including without
limitation, any purchase, redemption, retirement or acquisition of outstanding
shares of capital stock of the Company ("Stock Repurchases"). Except for
permitted Stock Repurchases referred to in the immediately preceding sentence,
none of such proceeds will be used, directly or indirectly, for the
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purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any "margin stock" within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be paid
within five days of the due date thereof;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.05 to 5.09, inclusive;
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made or
deemed to have been made by any Borrower in this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment in
respect of any Material Debt or any Material Financial Obligations when
due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of
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such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Company or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Company or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due
(including any approved extensions) an amount or amounts aggregating in
excess of $50,000,000 which it shall have become liable to pay under Title
IV of ERISA; or notice of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or to cause a trustee to be appointed to administer any Material
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Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members
of the ERISA Group to incur a current payment obligation in excess of
$50,000,000;
(j) a judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Company or any Material
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 30% or more of the outstanding shares of voting stock of the
Company; or, during any two-year period, the individuals who were serving
on the board of directors of the Company at the beginning of such period
or who were nominated for election or elected to such board during such
period with the affirmative vote of at least two-thirds of such
individuals still in office cease to constitute a majority of such board;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon and all accrued fees and other amounts payable by any
Borrower hereunder) to be, and the Notes shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower; PROVIDED that in the case of
any of the Events of Default specified in clause (g) or (h) above with respect
to any Borrower, without any notice to any Borrower or any other act by the
Agent or the Banks, the Commitments shall thereupon terminate and the Notes
(together with accrued interest thereon and all accrued fees and other amounts
payable by any Borrower
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hereunder) shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower.
SECTION 6.02. NOTICE OF DEFAULT. The Agent shall give notice to the
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. AGENT AND AFFILIATES. Morgan Guaranty Trust Company of
New York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and Morgan Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with any Borrower or any Subsidiary or affiliate of any Borrower as if
it were not the Agent hereunder.
SECTION 7.03. ACTION BY AGENT. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly PROVIDED in Article VI.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Agent may consult with
legal counsel (who may be counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
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SECTION 7.05. LIABILITY OF AGENT. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks (or when expressly
required hereby, all the Banks) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
nor any of their 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 Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any Borrower; (iii) the satisfaction of any condition
specified in Article III, except receipt of items required to be delivered to
the Agent; or (iv) the validity, effectiveness or genuineness of this Agreement,
the Notes or any other instrument or writing furnished in connection herewith.
The Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed by it to be genuine
or to be signed by the proper party or parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with its role as Agent hereunder
or any action taken or omitted by such indemnitees in connection therewith.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such 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 or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its
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own credit decisions in taking or not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR AGENT. The Agent may resign at any time by
giving notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. AGENT'S FEE. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more
of the aggregate amount of the Commitments advise the Agent that the
Adjusted CD Rate
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or the London Interbank Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended. Unless a
Borrower notifies the Agent at least one Domestic Business Day before the date
of any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
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SECTION 8.02. ILLEGALITY. If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, 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 Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to
any Borrower and such Bank shall so notify the Agent, the Agent shall forthwith
give notice thereof to the other Banks and such Borrower, whereupon until such
Bank notifies such Borrower and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans to such Borrower shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully continue to maintain
and fund any of its outstanding Euro-Dollar Loans to such Borrower to maturity
and shall so specify in such notice, such Borrower shall immediately prepay in
full the then outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, such Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, 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
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any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) of the principal
of or interest on its Fixed Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its obligation to make
Fixed Rate Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or Applicable
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding (i) with respect to any CD
Loan any such requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD
Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans, its Notes or
its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under
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its Note with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the Agent), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, on or after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, 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 any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring on or 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
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.04. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE
LOANS. If (i) the obligation of any Bank to make Euro-Dollar Loans to any
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
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demanded compensation under Section 8.03(a) with respect to its CD Loans or
Euro-Dollar Loans and a Borrower shall, by at least three Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies such Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as CD Loans or Euro-Dollar Loans, as the case may be, shall be made
instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, to such Borrower has been repaid, all payments of principal which
would otherwise be applied to repay such Fixed Rate Loans shall be applied
to repay its Base Rate Loans to such Borrower instead.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible 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:
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SECTION 9.01. CORPORATE EXISTENCE AND POWER. It is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as then conducted.
SECTION 9.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its
certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or such
Eligible Subsidiary or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
SECTION 9.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of such Eligible Subsidiary and its Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of such Eligible Subsidiary, in each case enforceable in accordance
with their respective terms except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
SECTION 9.04. TAXES. Except as disclosed to the Banks in writing
prior to the delivery of such Election to Participate, there is no income, stamp
or other tax of any country, or any taxing authority thereof or therein, imposed
by or in the nature of withholding or otherwise, which is imposed on any payment
to be made by such Eligible Subsidiary pursuant hereto or on its Notes, or is
imposed on or by virtue of the execution, delivery or enforcement of its
Election to Participate, this Agreement or its Notes.
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ARTICLE X
GUARANTY
SECTION 10.01. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by any Eligible Subsidiary pursuant to this Agreement, and the full and punctual
payment of all other amounts payable by any Eligible Subsidiary under this
Agreement. Upon failure by any Eligible Subsidiary to pay punctually any such
amount, the Company shall forthwith on demand pay the amount not so paid at the
place and in the manner specified in this Agreement.
SECTION 10.02. 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 Eligible Subsidiary under this
Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of any Eligible Subsidiary, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting any Eligible Subsidiary or its
assets, or any resultant release or discharge of the obligations of any
Eligible Subsidiary hereunder or under any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against
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any Eligible Subsidiary, the 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;
(vi) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
Note or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Company's obligations hereunder.
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Company and
each Eligible Subsidiary under this Agreement shall have been paid in full. If
at any time any payment of any principal of or interest on any Note or any other
amount payable by any Eligible Subsidiary under this Agreement is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Eligible 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 10.04. 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 action be
taken by any Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. NO SUBROGATION. If the Company makes any payment
under this Article X in respect of any obligation of an Eligible Subsidiary, the
Company shall not
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be subrogated to the rights of the holder of such obligation against such
Eligible Subsidiary with respect to such payment.
SECTION 10.06. STAY OF ACCELERATION. In the event that acceleration
of the time for payment of any amount payable by any Eligible Subsidiary under
this Agreement or the Notes is stayed upon the insolvency, bankruptcy or
reorganization of such Eligible 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 made at the request of
the Required Banks.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of any Borrower or the Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof (or, in the case
of an Eligible Subsidiary, its Election to Participate), (y) in the case of any
Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Agent and the Company. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section and the
appropriate answerback is received, (ii) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the Agent under
Article II or Article VIII shall not be effective until received.
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SECTION 11.02. NO WAIVERS. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.03. EXPENSES; INDEMNIFICATION. (a) The Company shall pay
(i) all out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Agent or any Bank,
including (without duplication) the reasonable fees and disbursements of outside
counsel and the allocated cost of inside counsel, in connection with such Event
of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom. The Company shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this
Agreement, any Election to Participate or Election to Terminate or any Note.
(b) The Company agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; PROVIDED that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
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SECTION 11.04. SHARING OF SET-OFFS. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to the Note of any Borrower held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to the Note of such Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes of such Borrower held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes of such
Borrower held by the Banks shall be shared by the Banks pro rata; PROVIDED that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of a Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 11.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) change the provisions of
Article X; PROVIDED FURTHER that no such amendment, waiver or
60
<PAGE>
modification shall, unless signed by an Eligible Subsidiary, (w) subject such
Eligible Subsidiary to any additional obligation, (x) increase the principal of
or rate of interest on any outstanding Loan of such Eligible Subsidiary, (y)
accelerate the stated maturity of any outstanding Loan of such Eligible
Subsidiary or (z) change this PROVISO.
SECTION 11.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 11.05 without the consent of the Participant. The
Borrowers agree that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
initial Commitment
61
<PAGE>
of not less than $5,000,000) of all, of its rights and obligations under this
Agreement and the Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit J hereto executed by such Assignee and such transferor Bank,
with (and subject to) the subscribed consent of the Company and the Agent;
PROVIDED that if an Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment, no such consent shall be required,
but the Assignee and the transferor Bank shall provide prompt notice of such
assignment, together with information concerning addresses and related
information with respect to the Assignee, to the Agent; and PROVIDED FURTHER
that such assignment may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the
Borrowers shall make appropriate arrangements so that, if required, new Notes
are issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States or a state thereof, it shall deliver to the
Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.18.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
11.03(a) than such Bank would have been entitled to receive with respect to the
62
<PAGE>
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02 or 8.03 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) If any Reference Bank transfers its Notes to an unaffiliated
institution, the Agent shall, in consultation with the Company and with the
consent of the Required Banks, appoint another Bank to act as a Reference Bank
hereunder.
SECTION 11.07. COLLATERAL. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 11.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS. This Agreement, each Election to Participate, each Election to
Terminate and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. Each Borrower hereby appoints CT
Corporation System its authorized agent to accept and acknowledge service of any
and all processes which may be served in any suit, action or proceeding of the
nature referred to in this Section 11.08 and consents to process being served in
any such suit, action or proceeding upon CT Corporation System in any manner or
by the mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to such Borrower's address referred to in
Section 11.01; and (d) agrees that such service (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted
63
<PAGE>
by law, be taken and held to be valid personal service upon and personal
delivery to it. A copy of any summons or complaint served on an Eligible
Subsidiary pursuant to the foregoing shall be sent to the Company by registered
or certified mail. Each Eligible Subsidiary represents and warrants that CT
Corporation System has agreed in writing to accept such appointment and that
true copies of such acceptance will be furnished to the Agent prior to or
concurrently with delivery of such Eligible Subsidiary's Election to
Participate. Nothing in this Section 11.08 shall affect the right of any Bank to
serve process in any manner permitted by law or limit the right of any Bank to
bring proceedings against the Company or any Eligible Subsidiary in the courts
of any jurisdiction or jurisdictions.
SECTION 11.09. COUNTERPARTS; INTEGRATION. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GILLETTE COMPANY
By /s/ Gian U. Camuzzi
---------------------------
Title: Senior Assistant
Commitments
- -----------
$70,000,000 MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By /s/ Sandra J.S. Kurek
---------------------------
Title: Associate
65
<PAGE>
Commitments
- -----------
$55,000,000 CREDIT SUISSE
By /s/ Lynn Allegaert
---------------------------------
Title: Member of Senior
Management
By /s/ David W. Kratovil
---------------------------------
Title: Member of Senior
Management
$45,000,000 FLEET NATIONAL BANK
By /s/ Amy M. Tsokanis
---------------------------------
Title: Vice President
$45,000,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Kathy A. Sweeney
---------------------------------
Title: Assistant Vice President
$45,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Thomas M. Harkless
---------------------------------
Title: Vice President
66
<PAGE>
$30,000,000 ABN AMRO BANK N.V. NEW YORK
By /s/ George M. Dugan
---------------------------------
Title: Vice President
By /s/ John M. Kinney
---------------------------------
Title: Assistant Vice President
$30,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ John W. Pocalyko
---------------------------------
Title: Vice President
$30,000,000 THE BANK OF NOVA SCOTIA
By /s/ Terri M. Pitcher
---------------------------------
Title: Authorized Signatory
$30,000,000 CHEMICAL BANK
By /s/ Carol A. Ulmer
---------------------------------
Title: Vice President
$30,000,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By /s/ Stephen A. Wiedemann
---------------------------------
Title: Vice President
67
<PAGE>
By /s/ Thomas A. Foley
---------------------------------
Title: Assistant Vice President
$30,000,000 ROYAL BANK OF CANADA
By /s/ Sheryl L. Greenberg
---------------------------------
Title: Manager
$20,000,000 BANQUE PARIBAS
By /s/ John J. McCormick, III
---------------------------------
Title: Vice President
By /s/ Mary T. Finnegan
---------------------------------
Title: Group Vice President
$20,000,000 MELLON BANK, N.A.
By /s/ Joseph T. McDonald, Jr.
---------------------------------
Title: Vice President
$20,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Terence A. Snellings
---------------------------------
Title: Senior Vice President
- -----------------
Total Commitments
68
<PAGE>
$500,000,000
============
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Sandra J.S. Kurek
---------------------------------
Title: Associate
69
<PAGE>
PRICING SCHEDULE
<TABLE>
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for
any day are the respective per annum percentages set forth below in the
applicable row under the column corresponding to the Status that exists on such
day:
<CAPTION>
================================================================================
Level Level Level Level Level
Status I II III IV V
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Facility Fee
Rate 0.060% 0.075% 0.090% 0.100% 0.150%
- --------------------------------------------------------------------------------
Euro-Dollar
Margin 0.115% 0.150% 0.160% 0.200% 0.275%
- --------------------------------------------------------------------------------
CD Margin 0.240% 0.275% 0.285% 0.325% 0.400%
================================================================================
</TABLE>
For purposes of this Schedule, the following terms have the
following meanings:
"Level I Status" exists at any date if, at such date, the Company's
long-term debt is rated AA- or higher by S&P OR Aa3 or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated A or higher by S&P OR A2 or higher by Moody's
and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated A- or higher by S&P OR A3 or higher by Moody's
and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Company's long-term debt is rated BBB+ or
<PAGE>
higher by S&P OR Baa1 or higher by Moody's and (ii) none of Level I Status,
Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such date, no other
Status exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status or Level V Status exists at
any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
2
<PAGE>
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of Borrower], a [jurisdiction of
incorporation] corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty Trust Company of
New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; PROVIDED that the failure of the Bank to make any such recordation
or endorsement shall not affect the
<PAGE>
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Multi-Year Credit
Agreement dated as of April 30, 1996 among The Gillette Company, the banks
listed on the signature pages thereof and Morgan Guaranty Trust Company of New
York, as Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
The Gillette Company has, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this note.*
[NAME OF BORROWER]
By
---------------------------------
Title:
- ---------------
* To be deleted in case of Notes executed and delivered by the Company.
2
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- -------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
3
<PAGE>
- -------------------------------------------------------------------------------
4
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [Name of Borrower]
Re: Multi-Year Credit Agreement (the "Credit Agreement") dated as of April
30, 1996 among The Gillette Company, the Banks listed on the signature
pages thereof and the Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period** Maturity Date
- ----------------- ----------------- -------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
- ---------------
* Amount must be $15,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 15 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By
---------------------------
Title:
2
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower]
(the "Borrower")
Pursuant to Section 2.03 of the Multi-Year Credit Agreement dated as
of April 30, 1996 among The Gillette Company, the Banks parties thereto and the
undersigned, as Agent, we are pleased on behalf of the Borrower to invite you to
submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period Maturity Date
- ---------------- --------------- -------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:15
A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By
--------------------------------------
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
--------------------------
To: Morgan Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ________________________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
-------- --------- ---------------------------------
$
$
[provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $_______________.]**
----------
* As specified in the related Invitation.
<PAGE>
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Multi-Year Credit
Agreement dated as of April 30, 1996 among The Gillette Company, the Banks
listed on the signature pages thereof and yourselves, as Agent, irrevocably
obligates us to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:________________ By:____________________________________
Authorized Officer
- ----------
amount the Bank is willing to lend. Bids must be made for $5,000,000 or a larger
multiple of $1,000,000. *** Not less than one month or not less than 15 days, as
specified in the related Invitation. No more than five bids are permitted for
each Interest Period. **** Margin over or under the London Interbank Offered
Rate determined for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS". ***** Specify
rate of interest per annum (to the nearest 1/10,000th of 1%).
2
<PAGE>
EXHIBIT E
OPINION OF
COUNSEL FOR THE COMPANY
-----------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am Vice Chairman of the Board of The Gillette Company (the
"Company"), and I am rendering this opinion pursuant to Section 3.01(c) of the
Multi-Year Credit Agreement dated as of April 30, 1996 among the Company, the
banks parties thereto and Morgan Guaranty Trust Company of New York, as Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
as therein defined.
I have examined or caused to be examined by counsel retained by or
on the staff of the Company, among other things, originals or copies, certified
or otherwise identified to my satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted or have had conducted such other investigations of fact and law as I
have deemed necessary or advisable for purposes of this opinion.
I am admitted to practice in the State of Ohio and the Commonwealth
of Massachusetts. No opinion is expressed herein with respect to or as to the
effect of any laws other than the laws of the Commonwealth of Massachusetts, the
federal laws of the United States of America and the General Corporation Law of
the State of Delaware.
<PAGE>
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes issued by it are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Company or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company and known to me or, to the best of my
knowledge, result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
3. The provision in Section 11.08 of the Credit Agreement that the
Credit Agreement and each Note shall be construed in accordance with and
governed by the law of the State of New York is a valid choice of law provision
under Massachusetts law and should be respected by a court sitting in
Massachusetts.
4. If a court sitting in Massachusetts were to apply Massachusetts
law as the law governing the Credit Agreement and the Notes, the Credit
Agreement would constitute a valid and binding agreement of the Company and the
Notes issued by it would constitute valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms.
5. Except as disclosed in the Company's 1995 Form 10-K and the
Company's Latest Form 10-Q, there is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against or affecting, the
Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official, in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, operations or
2
<PAGE>
financial condition of the Company and its Consolidated Subsidiaries, considered
as a whole, or which in any manner draws into question the validity of the
Credit Agreement or the Notes.
My opinion in paragraph 4 above as to the enforceability of the
Credit Agreement and the Notes issued by the Company is subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights in general, usury laws, and the general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). With respect to the foregoing, I express no
opinion, however, as to the enforceability of Section 11.03(b) of the Credit
Agreement to the extent the rights to indemnification PROVIDED for therein are
violative of any law, rule or regulation (including any federal or state
securities law, rule or regulation) or public policy.
To the extent that the obligations of the Company may be dependent
upon such matters, I assume for purposes of this opinion that each Bank is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation; and that the Credit Agreement has been duly
authorized, executed and delivered by the Banks and constitutes the legal, valid
and binding obligation of the Banks, enforceable against the Banks in accordance
with its terms. I do not express any opinion as to the effect of the compliance
by any of the Banks with any state or federal laws or as to the regulatory
status or nature of the business of any of the Banks.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without my prior written consent.
Very truly yours,
Joseph E. Mullaney
3
<PAGE>
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
--------------------------------------
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Multi-Year Credit
Agreement (the "Credit Agreement") dated as of April 30, 1996 among The Gillette
Company, a Delaware corporation (the "Company"), the banks parties thereto (the
"Banks") and Morgan Guaranty Trust Company of New York, as Agent (the "Agent"),
and have acted as special counsel for the Agent for the purpose of rendering
this opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms defined
in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes are within
<PAGE>
the Company's corporate powers and have been duly authorized by all necessary
corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Company and each Note issued by it constitutes a valid and binding
obligation of the Company, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Bank is located which limits the rate of interest that such Bank may
charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
<PAGE>
EXHIBIT G
FORM OF ELECTION TO PARTICIPATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the Multi-
Year Credit Agreement dated as of April 30, 1996
among The Gillette Company,
such Banks and such Agent (as amended
from time to time, the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning PROVIDED therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Article IX of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of an Eligible
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation Sections 11.08 and 11.10 thereof, as if
the undersigned were a signatory party thereto.
[Tax disclosure pursuant to Section 9.04, if any]
<PAGE>
The address to which all notices to the undersigned Eligible Subsidiary
under the Credit Agreement should be directed is: . This instrument
shall be construed in accordance with and governed by the laws of the State of
New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
--------------------------------------
Title:
The undersigned hereby confirms that [name of Eligible Subsidiary]
is an Eligible Subsidiary for purposes of the Credit Agreement described above.
THE GILLETTE COMPANY
By
--------------------------------------
Title:
Receipt of the above Election to Participate is hereby acknowledged
on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
--------------------------------------
Title:
2
<PAGE>
EXHIBIT H
FORM OF ELECTION TO TERMINATE
, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the Multi-Year Credit Agreement
dated as of April 30, 1996
among The Gillette Company, such Banks and such Agent (as amended
from time to time, the "Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning PROVIDED therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to terminate its status as an Eligible
Subsidiary for purposes of the Credit Agreement, effective as of the date
hereof. The undersigned hereby represents and warrants that all principal and
interest on all Notes of the undersigned and all other amounts payable by the
undersigned pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof. Notwithstanding the foregoing, this Election to Terminate
shall not affect any obligation of the undersigned under the Credit Agreement or
under any Note heretofore incurred.
This instrument shall be construed in accordance with and governed
by the laws of the State of New York.
Very truly yours,
<PAGE>
[NAME OF ELIGIBLE SUBSIDIARY]
By
--------------------------------------
Title:
The undersigned hereby confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
THE GILLETTE COMPANY
By
--------------------------------------
Title:
Receipt of the above Election to Terminate is hereby acknowledged on
and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
--------------------------------------
Title:
2
<PAGE>
EXHIBIT I
OPINION OF
COUNSEL FOR THE BORROWER
(BORROWINGS BY ELIGIBLE SUBSIDIARIES)
[date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am counsel to [name of Eligible Subsidiary, jurisdiction of
incorporation] (the "Borrower") and give this opinion pursuant to Section
3.03(b) of the Multi-Year Credit Agreement (as amended to the date hereof, the
"Credit Agreement") dated as of April 30, 1996 among The Gillette Company (the
"Company"), the banks parties thereto and Morgan Guaranty Trust Company of New
York, as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the laws of [jurisdiction of incorporation] and is a
Substantially-Owned Consolidated Subsidiary of the Company.
<PAGE>
2. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Borrower or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower.
3. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes do not contravene, or constitute a default under, any
provision of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any of its Subsidiaries and known to me
or, to the best of my knowledge, result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.*
4. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and its Notes constitute valid and binding obligations of the
Borrower, in each case enforceable in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
Very truly yours,
- --------
* The opinion in this paragraph may be given by Counsel for the Company.
2
<PAGE>
EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), THE GILLETTE COMPANY (the "Company")
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
-------------------
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Multi-Year Credit Agreement dated as of April 30, 1996 among the
Company, the Assignor and the other Banks party thereto, as Banks, and the Agent
(as amended and in effect on the date hereof, the "Credit Agreement");
WHEREAS, as PROVIDED under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $___________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of [a portion of]
its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with [a corresponding portion of] its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
<PAGE>
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Agent and the payment of the amounts specified in Section 3 required to be paid
on the date hereof (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment PROVIDED for herein shall be without recourse to the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other
- --------
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
<PAGE>
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. CONSENT OF THE COMPANY AND THE AGENT. This Agreement is
conditioned upon the consent of the Company and the Agent pursuant to Section
11.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agent is evidence of this consent. Pursuant to Section 11.06(c) the
Borrower agrees to execute and deliver a Note [and to cause each Eligible
Subsidiary to execute and deliver a Note] payable to the order of the Assignee
to evidence the assignment and assumption PROVIDED for herein.]*
SECTION 5. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrowers.
SECTION 6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
- --------
*Consent is required if the Assignee is not an
affiliate of the Assignor and was not a Bank immediately prior to the
assignment.
3
<PAGE>
[ASSIGNOR]
By
------------------------------------
Title:
[ASSIGNEE]
By
------------------------------------
Title:
[THE GILLETTE COMPANY]
By
------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
------------------------------------
Title:
4
