SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
DELAWARE 1-9328 41-0231510
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
370 WABASHA STREET NORTH, ST. PAUL, MINNESOTA 55102
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, include area code: 651-293-2233
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(NOT APPLICABLE)
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(Former name or former address, if changed from last report.)
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Item 5. OTHER EVENTS.
Reference is hereby made to the Company's Registration Statement on Form S-3 (File No. 333-14771) filed with the Securities and Exchange Commission (the "Commission") on October 24, 1996, as amended by Amendment No. 1 thereto filed with the Commission on November 15, 1996 (as so amended, the "Registration Statement") and declared effective by the Commission on November 18, 1996, pursuant to which the Company registered $200,000,000 aggregate principal amount (in U.S. dollars or the equivalent thereof in foreign currency or currency units) of its debt securities under the Securities Act of 1933, as amended (the "Securities Act"), to be offered from time to time pursuant to Rule 415 under the Securities Act.
On January 23, 2001, the Company entered into an underwriting agreement and a terms agreement relating to the sale of $150,000,000 aggregate principal amount of its 6.875% Notes due February 1, 2011 (the "Notes") under the Registration Statement. The Notes will be issued pursuant to the Amended and Restated Indenture, dated as of January 9, 2001, between Ecolab Inc. and Bank One, National Association (f/k/a The First National Bank of Chicago), as trustee, which indenture amends and restates the Indenture, dated as of November 1, 1996, between Ecolab and the Trustee, in accordance with the terms and provisions established by the Officer's Certificate dated as of January 23, 2001 (the "Officer's Certificate"). Copies of the underwriting agreement, the terms agreement, the Amended and Restated Indenture, the Officer's Certificate and the form of the Notes are filed as exhibits (1)A, (1)B, (4)A, (4)B and (4)C, respectively, to this Current Report on Form 8-K.
Certain other documents are included as exhibits (9), (10)A, (10)B,
(10)C and (12) to this Current Report on Form 8-K.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
(1)A. Underwriting Agreement, dated January 23, 2001, among the
Company and Credit Suisse First Boston Corporation, Chase
Securities Inc., Banc of America Securities LLC and Salomon
Smith Barney Inc.
B. Terms Agreement, dated January 23, 2001, among the Company
and Credit Suisse First Boston Corporation, Chase Securities
Inc., Banc of America Securities LLC and Salomon Smith Barney
Inc.
(4)A. Amended and Restated Indenture, dated as of January 9, 2001,
between Ecolab Inc. and Bank One, National Association (f/k/a
The First National Bank of Chicago), as trustee
B. Officer's certificate establishing terms and conditions of
6.875% Notes due February 1, 2011
C. Form of 6.875% Note due February 1, 2011
(9) Form of Second Amended and Restated Stockholder's Agreement -
See Exhibit (10)B.
(10)A. Master Agreement, dated as of December 7, 2000, between Ecolab
Inc. and Henkel KgaA - Incorporated by reference to Exhibit 18
of HC Investments, Inc.'s and Henkel KGaA's Amendment No. 5 to
Schedule 13D dated December 14, 2000.
B. Form of Second Amended and Restated Stockholder's Agreement -
Incorporated by reference to Exhibit 19 of HC Investments,
Inc.'s and Henkel KGaA's Amendment No. 5 to Schedule 13D dated
December 14, 2000.
C. Multicurrency Credit Agreement, dated as of September 29, 1993,
as Amended and Restated as of December 13, 2000, among the
Company, the financial institutions party thereto from time to
time, Citicorp USA, Inc., as Agent, CITIBANK INTERNATIONAL PLC,
as Euro-Agent and Bank One, NA and Credit Suisse First Boston,
as Co-Agents
(12) Computation of Ratio of Earnings to Fixed Charges
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ECOLAB INC.
By: /s/Kenneth A. Iverson
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Kenneth A. Iverson
Vice President and Secretary
Date: January 23, 2001
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION METHOD OF FILING
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(1)A. Underwriting Agreement, dated January 23, 2001, Filed herewith
among the Company and Credit Suisse First electronically.
Boston Corporation, Chase Securities Inc., Banc of
America Securities LLC and Salomon Smith
Barney Inc.
B. Terms Agreement, dated January 23, 2001, among the Filed herewith
Company and Credit Suisse First Boston Corporation, electronically.
Chase Securities Inc., Banc of America Securities LLC
and Salomon Smith Barney Inc.
(4)A. Amended and Restated Indenture, dated as of Filed herewith
January 9, 2001, between Ecolab Inc. and electronically.
Bank One, National Association (f/k/a The First National
Bank of Chicago), as trustee
B. Officer's certificate establishing terms and Filed herewith
conditions of 6.875% Notes due February 1, 2011 electronically.
C. Form of 6.875% Note due February 1, 2011 Filed herewith
electronically.
(9) Form of Second Amended and Restated See Exhibit (10)B.
Stockholder's Agreement
(10)A. Master Agreement, dated as of December 7, 2000, Incorporated by reference
between Ecolab Inc. and Henkel KGaA to Exhibit 18 of HC
Investments, Inc.'s and
Henkel KGaA's
Amendment No. 5 to
Schedule 13D dated
December 14, 2000.
B. Form of Second Amended and Restated Incorporated by reference
Stockholder's Agreement to Exhibit 19 of HC
Investments, Inc.'s and
Henkel KGaA's
Amendment No. 5 to
Schedule 13D dated
December 14, 2000.
C. Multicurrency Credit Agreement, dated as of Filed herewith
September 29, 1993, as Amended and Restated as electronically.
of December 13, 2000, among the Company, the
financial institutions party thereto from time to
time, Citicorp USA, Inc., as Agent, CITIBANK
INTERNATIONAL PLC, as Euro-Agent and Bank
One, NA and Credit Suisse First Boston, as
Co-Agents
(12) Computation of Ratio of Earnings to Fixed Charges Filed herewith
electronically.
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Exhibit (1)A
ECOLAB INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
January 23, 2001
To the several Underwriters named
in the respective Terms Agreements
hereinafter described
Dear Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation ("ECOLAB" or the "COMPANY"), proposes to issue and sell its senior unsecured debt securities (the "DEBT SECURITIES") in one or more offerings on the terms and conditions determined at the time of sale to the underwriters named in Annex I hereto (the "UNDERWRITERS" or you), for whom you (the "REPRESENTATIVE" or you) are acting as representative. The Debt Securities will be issued pursuant to an indenture dated as of November 1, 1996, as amended and restated as of January 9, 2001 (the "INDENTURE") between the Company and Bank One, National Association, as trustee (the "TRUSTEE").
From time to time, the Company may enter into one or more terms agreements in the form set forth in Annex I hereto (each a "TERMS AGREEMENT") that provide for the sale of such designated Debt Securities to, and the purchase and offering thereof by, the Underwriters named therein which terms will include the underwriter or underwriters named therein, whether acting alone in the sale of Debt Securities or as members of an underwriting syndicate, and the provisions set forth herein (except for provisions which relate to securities other than Debt Securities designated in the applicable Terms Agreement) will be incorporated by reference in any such Terms Agreement. This Underwriting Agreement and the applicable Terms Agreement, including the provisions incorporated therein by reference, are herein referred to as this "AGREEMENT."
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-14771), including a prospectus relating to the Debt Securities of the Company for the registration of such securities under the Securities Act of 1933, as amended (the "SECURITIES ACT"), has (i) been prepared by the Company in material conformity with the requirements of the Securities Act and the rules and regulations thereunder (the "RULES AND REGULATIONS") of the United States Securities and Exchange Commission (the "COMMISSION"), (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"). Copies of such registration statement and
any amendments thereto have been delivered by the Company to you. As used in this Agreement, "EFFECTIVE DATE" means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission and at the time of filing of the Company's most recent Annual Report on Form 10-K; "REGISTRATION STATEMENT" means the registration statement as amended to the date of this Agreement, including all documents incorporated or deemed incorporated by reference therein and the exhibits thereto; "BASIC PROSPECTUS" means the prospectus included in the Registration Statement; "PRELIMINARY PROSPECTUS" means any preliminary form of Prospectus (as defined herein) specifically relating to designated Debt Securities, in the form first filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the Rules and Regulations; "PROSPECTUS SUPPLEMENT" means any prospectus supplement specifically relating to designated Debt Securities, in the form first filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Securities Act; "PROSPECTUS" means the Basic Prospectus together with the Prospectus Supplement, except that if such Basic Prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement was first filed pursuant to Rule 424, the term "Prospectus" will refer to the Basic Prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement; "BASIC PROSPECTUS," "PROSPECTUS", "PRELIMINARY PROSPECTUS" and "PROSPECTUS SUPPLEMENT" include in each case the documents, if any, filed by the Company with the Commission pursuant to the United States Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and incorporated by reference therein; and "SUPPLEMENT" and "AMENDMENT" will be deemed to refer to and include any documents incorporated by reference pursuant to Item 12 of Form S-3 under the Securities Act that are filed subsequent to the date of the Basic Prospectus by the Company with the Commission pursuant to the Exchange Act. Any reference to any amendment to the Registration Statement will be deemed to include any annual report of the Company filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement;
(b) The Registration Statement conforms in all material respects, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects, to the requirements of the Securities Act and the Rules and Regulations thereunder and do not and will not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading; PROVIDED, HOWEVER, that no representation or warranty is made as to (i) that part of the Registration Statement which will constitute the Statement of Eligibility on Form T-1 ("FORM T-1") under the Trust Indenture Act of the Trustee and (ii) information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for use in the Registration Statement or the Prospectus;
(c) The Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations thereunder;
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and, when read together with the Prospectus on the filing date of the Prospectus and any amendment or supplement thereto, none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and, when read together with the Prospectus on the dates such documents become effective or are filed with the Commission, as the case may be, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(e) The Company and each of its subsidiaries that is a significant subsidiary, as defined in Rule 405 of the Securities Act (individually a "SIGNIFICANT SUBSIDIARY" and, collectively, the "SIGNIFICANT SUBSIDIARIES") have been duly incorporated and validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified and in good standing would not be reasonably expected to have a material adverse effect on the consolidated financial condition, results of operations or business of the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"), and where so qualified, have all corporate power and authority necessary to own, lease or operate their respective properties and to conduct the businesses in which they are engaged as described in the Prospectus;
(f) The Debt Securities have been duly and validly authorized by the Company and, when duly executed, issued and delivered by the Company pursuant to this Agreement, and authenticated by the Trustee pursuant to the provisions of the Indenture, against payment therefor by the Underwriters as provided in this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity); and the Debt Securities, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus;
(g) The Indenture has been duly authorized by the Company, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Trustee) and delivered by the Company, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity); and the Indenture conforms in all material respects to the description thereof contained in the Prospectus;
(h) This Agreement has been duly authorized, executed and delivered by the Company;
(i) The execution, delivery and performance of this Agreement and the Indenture by the Company, and the consummation of the transactions contemplated hereby and thereby, and the issuance and delivery of the Debt Securities will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, lien, charge or encumbrance upon any property or mortgage, deed of trust, loan agreement, or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it or any of them is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, except for such conflicts, breaches, violations or defaults which would not have a Material Adverse Effect; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or by-laws of the Company; nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their material properties or assets except for violations which would not have a Material Adverse Effect; and, except for the registration of the Debt Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities or other Blue Sky laws in connection with the purchase and distribution of the Debt Securities by the Underwriters, no consent, approval, authorization or order of, or filing, registration or qualification of or with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Indenture by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, in each case other than such consents, approvals, authorizations, registrations or qualifications which would not have a Material Adverse Effect;
(j) Neither the Company nor any of its Significant Subsidiaries has sustained, since the date of the latest financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree in any such case, which would have a Material Adverse Effect, otherwise than as set forth or contemplated in the Prospectus; and, since such date, there has not been a material adverse change, in or affecting the general
financial condition or results of operations or business of the Company and its Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"), otherwise than as set forth or contemplated in the Prospectus;
(k) PricewaterhouseCoopers L.L.P., which has certified certain financial statements of the Company, which statements appear in the Prospectus or are incorporated by reference therein, is an independent public accountant as required by the Securities Act and the Rules and Regulations;
(l) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the Company and its consolidated subsidiaries at the dates and for the periods indicated, and have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as otherwise expressly set forth therein;
(m) Except as described in the Registration Statement, Prospectus or in documents incorporated therein by reference, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any material property or assets of the Company or any of its Significant Subsidiaries is the subject which is required to be disclosed in the Registration Statement, Prospectus or in documents incorporated therein by reference or which would reasonably be expected to have a Material Adverse Effect; and to the Company's knowledge, no such proceedings are threatened by governmental authorities or by others;
(n) Neither the Company nor any of its Significant Subsidiaries is in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company or any of its Significant Subsidiaries is a party or by which it or any of them is or may be bound or to which any of the properties or assets of the Company or any of its Significant Subsidiaries is subject, except for such default which would not have a Material Adverse Effect; and
(o) Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters pursuant to this Agreement will be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
2. PURCHASE OF THE DEBT SECURITIES BY THE UNDERWRITERS. On the basis of the representations and warranties contained herein, and subject to the terms and conditions set forth herein, the Company agrees to sell to the Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company, at the price and/or principal amount, as the case may be, set forth in the Terms Agreement attached hereto as Annex I, together with interest thereon accrued from the date specified in the Terms Agreement and in
the respective amounts of the designated Debt Securities set forth opposite the name of each such Underwriter in Schedule I to Annex I to such Terms Agreement.
3. OFFERING OF THE DEBT SECURITIES BY THE UNDERWRITERS. The Underwriters propose to offer the Debt Securities for sale upon the terms and conditions set forth in the Prospectus and any amendment or supplement thereto relating to the Debt Securities.
4. DELIVERY OF AND PAYMENT FOR THE DEBT SECURITIES. Delivery of and payment for the Debt Securities will be made at such location as may be agreed upon by the Underwriters and the Company at 9:00 a.m., New York City time, on the third business day following the date of this Agreement, or at such other time and date as will be agreed upon (each such date and time of payment and delivery being herein called the "CLOSING DATE") in the manner set forth in the applicable Terms Agreement. Upon delivery, the Debt Securities will be registered in such names and in such denominations as the Underwriters will request in writing not less than two business days prior to the Closing Date. For the purpose of expediting the checking and packaging of the certificates for the Debt Securities, the Company will make the certificates representing the Debt Securities available for inspection by the Underwriters or counsel for the Underwriters in New York, New York, not later than 2:00 p.m., New York City time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in part in the form of one or more global securities in book-entry form that will be deposited with, or on behalf of, a depository or its nominee, identified in the Prospectus Supplement relating to such series. In such a case, the manner of delivery of such global securities will be set forth in the applicable Terms Agreement.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) (i) to prepare the Prospectus setting forth the terms of the Debt
Securities and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
(ii) to make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the applicable Closing Date,
unless, if reasonably practicable, the Underwriters or their
representatives have had a reasonable opportunity to review and comment
upon such amendment or supplement prior to its filing; (iii) to advise the
Underwriters promptly of any such amendment or supplement and to furnish
the Underwriters with a copy thereof; (iv) to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Debt Securities; (v) during the same period, to
advise the Underwriters, promptly after it receives notice thereof, of (A)
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, (B)
the suspension of the qualification of the Debt Securities for offering or
sale in any jurisdiction or the initiation or threatening of any proceeding
for any such purpose or (C) any request by the Commission for the amending
or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) to furnish promptly to the Underwriters and to counsel for the Underwriters a copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits (other than those incorporated by reference) filed therewith;
(c) to deliver promptly to the Underwriters such number of the following documents as the Underwriters will reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture and such other exhibits as the Underwriters may reasonably request); (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Date in connection with the offering or sale of the Debt Securities, and if at such time any events will have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it will be necessary to amend or supplement the Prospectus (or to file under the Exchange Act any document incorporated by reference in the Prospectus) to comply with the Securities Act or the Exchange Act, to notify the Underwriters and, upon the reasonable request of the Underwriters, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance;
(d) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company, be required by the Securities Act or requested by the Commission;
(e) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus and, promptly after filing with the Commission any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters;
(f) as soon as practicable after the date of this Agreement and every Terms Agreement relating to designated Debt Securities, to make generally available to its Holders an earnings statement of the Company and its Significant Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) promptly from time to time, to use all reasonable efforts to take such action as the Underwriters may reasonably request to qualify the Debt Securities for offering and sale under the securities laws of such jurisdictions as the Underwriters may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for so long as may be necessary to complete the distribution of the Debt Securities; PROVIDED, HOWEVER, that in connection therewith, the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction where it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(h) if, and to the extent specified in the Terms Agreement attached hereto as Annex I, designated Debt Securities are to be duly authorized for listing on a national securities exchange, to apply for any listing of such designated Debt Securities on such national securities exchange and to use its best efforts to complete that listing, subject only to official notice of issuance, prior to the relevant Closing Date;
(i) to apply the net proceeds from the sale of the Debt Securities being sold by the Company as set forth in the Prospectus; and
(j) during the period beginning from the date of the Terms Agreement and continuing to and including the Business Day after the Closing Date with respect to such Terms Agreement, the Company will not offer, sell, contract to sell or otherwise dispose of any debt securities which are substantially similar to the Debt Securities designated for offer and sale, without the prior written consent of the Underwriters, which consent will not be unreasonably withheld
6. EXPENSES. The Company agrees to pay all costs, expenses and fees
incident to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement (including financial statements and
exhibits), each Preliminary Prospectus and all amendments and supplements
thereto; (ii) the printing and delivery of the Prospectus and all amendments or
supplements thereto; (iii) the printing and delivery of this Agreement, the Blue
Sky Memorandum and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Debt
Securities; (iv) the registration or qualification of the Debt Securities for
offer and sale under the securities or Blue Sky laws of the several states
(including in each case the reasonable fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and memoranda
relating thereto); (v) filings and clearance with the National Association of
Securities Dealers, Inc. ("NASD"), in connection with the offering, if
applicable; and (vi) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be reasonably
requested for use in connection with the offering or sale of the Debt Securities
by the Underwriters; it is understood, however, that, except as provided in this
Section 6 and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Debt Securities by them, and any advertising expenses
connected with any offers they may make.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the Underwriters to purchase and pay for any Debt Securities are subject to the accuracy in all material respects, when made, and on each Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder and under the Terms Agreement attached hereto as Annex I, and to each of the following additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus will have been timely filed with the Commission in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof will have been issued, and no proceeding for that purpose will have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise will have been complied with to the Underwriters' reasonable satisfaction;
(b) The general counsel of the Company (the "General Counsel"), will have furnished to the Underwriters his opinion, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters to the effect that:
(i) The Company and each of its Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing (or the equivalent) under the laws of their respective jurisdictions of incorporation; are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their ownership or lease of property or the conduct of their businesses requires such qualification and where the failure to be so qualified and in good standing would have a Material Adverse Effect; where so
qualified, each Significant Subsidiary has all corporate power and authority necessary to own, lease or operate its properties and to conduct business;
(ii) to such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been described in the Prospectus or filed as exhibits to the Registration Statement or incorporated therein by reference under the Rules and Regulations;
(iii) the documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
(iv) to such counsel's knowledge, and other than as set forth in the Registration Statement, the Prospectus or any documents incorporated by reference, there are no legal or governmental proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of which any material property or assets of the Company or any of its Significant Subsidiaries is the subject which, if determined adversely to the Company or any of its Significant Subsidiaries, would have a Material Adverse Effect; and to such counsel's knowledge, no such proceedings are threatened; and
(v) the issuance and sale of the Debt Securities being delivered on the Closing Date by the Company and the compliance by the Company with all of the provisions of this Agreement and the Indenture, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement known to such counsel to which the Company or any of its Significant Subsidiaries is a party or by which any of them is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, except for such conflicts, breaches, violations or defaults which would not have a Material Adverse Effect, nor will such actions result in any violation of the provisions of any state or federal statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their material properties or assets, except for such violations as would not have a Material Adverse Effect;
(c) Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel to the Company, will have furnished to the Underwriters its opinion, as counsel to the
Company, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of Delaware and has all corporate power and corporate authority necessary to execute, deliver and perform all of its obligations under this Agreement, the Indenture and the Debt Securities;
(ii) with respect to each of the Debt Securities, when (A) the Registration Statement, as finally amended (including all necessary post-effective amendments), becomes effective; (B) an appropriate Prospectus Supplement with respect to the Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder; (C) the Underwriting Agreement with respect to the Debt Securities is duly executed and delivered by the Company and the other parties thereto; (D) the directors and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Debt Securities and related matters; (E) the Indenture pursuant to which the Debt Securities are to be issued shall have been qualified under the Trust Indenture Act, and duly executed and delivered by the Company and the trustee under such Indenture; and (F) the Debt Securities have been duly executed and authenticated in accordance with the provisions of such Indenture and duly delivered to and paid for by the Underwriters pursuant to this Agreement, upon payment of the agreed-upon consideration therefor, the Debt Securities, when issued and sold in accordance with such Indenture and any related supplement thereto and this Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company, in accordance with their respective terms, except that such enforcement may be subject to or limited by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally; (2) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); (3) public policy considerations which may limit the rights of parties to obtain certain remedies; (4) requirements that a claim with respect to any securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law; and (5) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composition currency;
(iii) the Indenture has been duly authorized by the Company, and when duly executed by the proper officers of the Company (assuming due execution and delivery by the Trustee) and delivered by the Company, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity); and the Indenture conforms in all material respects to the description thereof contained in the Prospectus;
(iv) this Agreement should have been duly authorized, executed and delivered by the Company;
(v) the Registration Statement has become effective under the Securities Act, and the Indenture has been qualified under the Trust Indenture Act, and no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(vi) the statements contained in the Prospectus under "Description of the Notes" and "Description of Debt Securities" insofar as they describe federal statutes, rules and regulations, or portions thereof, constitute accurate descriptions thereof in all material respects;
(vii) the Registration Statement, as of the Effective Date, and the Prospectus, as of the date it was filed with the Commission, and any further amendments or supplements thereto made by the Company prior to the applicable Closing Date (in each case other than the financial statements and related schedules therein and all other financial and statistical data included or incorporated by reference therein or omitted therefrom and other than the Form T-1, as to which such counsel need express no opinion) appear on their face to comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; and the Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations thereunder; and
(viii) the execution and delivery by the Company of each of the Indenture, the Debt Securities and this Agreement and the performance by the Company of its obligations under each of the Indenture, the Debt Securities and this Agreement, each in accordance with its terms, do not (A) conflict with the Restated Certificate of Incorporation or by-laws of the Company; (B) constitute a violation of or a default under the provisions of any state or federal statute or any order, rule or regulation known to such counsel of any state or federal court or governmental agency or body having jurisdiction over the Company except for such violations as would not have a Material Adverse Effect; and, except for the registration of the Debt Securities under the Securities Act and such consents, approvals, authorizations, registrations or qualifications (1) as may be required under the Securities Act, Exchange Act, the Rules and Regulations, the Trust Indenture Act, any order, rule or regulation made or established by any regulatory authority or the NASD and applicable state securities or Blue Sky laws in connection with the purchase and distribution of the Debt Securities by the
Underwriters and (2) whose absence both individually or in the aggregate would not have a Material Adverse Effect and would not have a Material Adverse Effect on the sale of the designated Debt Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution delivery and performance of this Agreement and the Indenture by the Company and the consummation by the Company of the transactions contemplated hereby and thereby; PROVIDED that the foregoing opinion is limited to those consents, approvals, authorizations, orders, registrations and qualifications under laws which, in the counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement.
In rendering the opinions required by subsections (b) and (c) of this
Section 7, the General Counsel and Skadden, Arps, Slate, Meagher & Flom
(Illinois), respectively, may (i) state that their opinion is limited to
matters governed by the federal laws of the United States of America, the
laws of the State of New York or the General Corporation Law of the State
of Delaware and (ii) rely (to the extent such counsel deems proper and
specifies in their opinion) as to matters involving the application of laws
covered by supporting opinion upon the opinion of other counsel of good
standing, PROVIDED that such other counsel is reasonably satisfactory to
counsel for the Underwriters and furnishes a copy of its opinion to the
Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers of
the Company and its Significant Subsidiaries and certificates of public
officials. In addition, the General Counsel, in rendering the opinions
required by clauses (i) and (ii) of subsection (b) with respect to the
subsidiaries, may rely on opinions rendered by counsel employed by such
subsidiaries;
Each of the General Counsel and Skadden, Arps, Slate, Meagher & Flom (Illinois) will have furnished to the Underwriters written statements, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect that such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, and, based on the foregoing, such counsel does not believe that the Registration Statement (other than the financial statements and related schedules and all other financial data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel will express no opinion or belief), as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (other than the financial statements and related schedules and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel will express no opinion or belief), as of its date and the applicable Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The General Counsel will also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, to the effect that he does not believe that any document incorporated by reference in the Prospectus (other
than the financial statements and related schedules and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel will express no opinion or belief) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
The foregoing opinions and statements may be qualified by statements to the effect that (i) such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for the statements made in the Prospectus under the captions relating to the designated Debt Securities, insofar as such statements relate to the Debt Securities and concern legal matters and (ii) as to facts necessary to the determination of materiality, such counsel is relying upon the opinions of officers and other representatives of the Company;
(d) The Underwriters will have received from counsel for the Underwriters such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Debt Securities, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require;
(e) At the Closing Date, counsel for the Underwriters will have been furnished with such documents, certificates and information as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Debt Securities as contemplated herein and in each Terms Agreement and related proceedings, or to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein and therein contained;
(f) At the time of execution of this Agreement and each Terms Agreement, the Underwriters will have received from PricewaterhouseCoopers L.L.P. with respect to the Company letters, in form and substance reasonably satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof and thereof (i) confirming that they are independent public accountants with respect to the Company and its Significant Subsidiaries within the meaning of the Securities Act and (ii) stating, as of the date hereof and thereof (or with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date hereof or thereof), the conclusions and findings of such firm with respect to the financial information and other matters as provided in SAS No. 72;
(g) With respect to the letters of PricewaterhouseCoopers L.L.P. referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the "INITIAL LETTER") and each Terms Agreement, the Company will have furnished to the Underwriters letters (the "BRING-DOWN LETTERS") of such accountants, addressed to the Underwriters and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and the Rules and Regulations, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter;
(h) At each Closing Date, the Company will have furnished to the Underwriters a certificate, dated the Closing Date, of its officers, reasonably satisfactory to the Underwriters as to the accuracy of the representations and warranties of the Company herein at and as of such Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Date, as to the matters set forth in subsections (a) and (i) of this Section 7 and as to such other matters as the Representatives may reasonably request;
(i) Neither the Company nor any of its Significant Subsidiaries will have sustained since the respective dates as of which information is given in the Registration Statement or the Prospectus or in any document incorporated by reference therein any Material Adverse Change, other than as set forth or contemplated or incorporated by reference in the Prospectus or in any of the documents incorporated by reference therein, the effect of which is, in the reasonable judgment of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Debt Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus;
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, (i) no downgrading will have occurred in the rating accorded the Company's securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization will have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's securities the effect of which, in any such case described in clause (i) or (ii), is in the counsel's judgment (after consultation with the Company) so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the designated Debt Securities on the terms and in the manner contemplated in the Prospectus; and
(k) Subsequent to the execution and delivery of this Agreement, none of the following will have occurred (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, (ii) a general moratorium on commercial banking activities in New York declared by either federal or New York State authorities, or (iii) the material outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iii) in the judgment of the Underwriters makes it impracticable or inadvisable to proceed with the public offering or the delivery of the designated Debt Securities on the terms and in the manner contemplated by the Prospectus.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will be deemed to be in compliance with the provisions hereof only if they are in substance reasonably satisfactory to counsel for the Underwriters. The Company may rely on any waiver of such conditions given by the Underwriters or counsel to the Underwriters as if given by the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities and judgments caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus (as amended or supplemented if the Company will have furnished any amendments or supplements thereto) or any Preliminary Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or judgments are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriters furnished in writing to the Company by or on behalf of any Underwriter expressly for use therein, and except further that the Company will not be liable with respect to any losses, claims, damages, liabilities or judgments arising out of or based on any untrue statements or alleged untrue statement or omission or alleged omission to state a material fact in any Preliminary Prospectus which is corrected in the Prospectus if the person or entity asserting such loss, claim, damage, liability or judgment purchased Debt Securities from such Underwriter, but was not sent or given a copy of the Prospectus at or prior to the written confirmation of the sale of such Debt Securities to such person or entity in any case where such delivery is required by the Securities Act if the Company has previously furnished copies thereof in sufficient quantity to such Underwriter and the loss, claim, damage, liability or judgment of such Underwriter results from an untrue statement or omission of a material fact contained in the Preliminary Prospectus.
(b) In case any action will be brought against any Underwriter or any person controlling such Underwriter, based upon any Preliminary Prospectus, the Registration Statement or the Prospectus or any amendment or supplement thereto and with respect to which indemnity may be sought against the Company, such Underwriter will promptly notify the Company in writing, and the Company will assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party and payments of all fees and expenses. Any Underwriter or any such controlling person will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be at the expense of such Underwriter or such controlling person unless (i) the employment of such counsel has been specifically authorized in writing by the Company, (ii) the Company has failed to assume the defense and employ counsel or (iii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the Company and such Underwriter or such controlling person have been advised by such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the Company (in which case the Company will not have the right to assume the defense of such action on behalf of such Underwriter or such controlling person). The Company will not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all such Underwriters and controlling persons, which firm will be designated in writing by the representatives and that all such fees and expenses will be reimbursed as they are incurred. The Company will not be liable for any settlement of any such action effected without its written consent, but, if settled with the written consent of the Company, the Company agrees to indemnify and hold harmless any Underwriters and any such controlling person from and against any loss or liability by reason of such settlement. Notwithstanding the immediately preceding sentence, if in any case where the fees and expenses of counsel are at the expense of the indemnifying party and an indemnified party will have requested the indemnifying party to reimburse the indemnified party for such fees and expenses of counsel as incurred, such indemnifying party agrees that it will be liable for any settlement of any action effected without its written consent if (i) such settlement is entered into more than thirty business days after the receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party has failed to reimburse the indemnified party in accordance with such request for reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and any person controlling the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter but only with reference to information relating to such Underwriter furnished in writing by or on behalf of such Underwriter expressly for use in the Registration Statement, the Prospectus or any Preliminary Prospectus. In case any action will be brought against the Company, any of its directors, any such officer or any person controlling the Company based on the Registration Statement, the Prospectus or any Preliminary Prospectus and in respect of which indemnity may be sought against any Underwriter, the Underwriter will have the rights and duties given to the Company (except that if the Company will have assumed the defense thereof, such Underwriter will not be required to do so, but may employ separate counsel therein and participate in the defense thereof but the fees and expenses of such counsel will be at the expense of such Underwriter), and the Company, its directors, any such officers and any person controlling the Company will have the rights and duties given to the Underwriter by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and judgments (i) in such proportion as is appropriate to reflect the relative benefits actually received by the Company on the one hand and the Underwriters on the other hand from the offering of the Debt Securities to which such loss, claim, damage, liability or judgment relates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Underwriters will be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters bear to the total price to the public of the Debt Securities, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and the Underwriters will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. With respect to any such Underwriter, such relative fault will also be determined by reference to the extent (if any) to which such losses, claims, damages or liabilities (or actions in respect thereof) with respect to any Preliminary Prospectus result from the fact that such Underwriter sold Debt Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus, if the Company had previously furnished copies thereof to such Underwriter.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by PRO RATA allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred to in the immediately preceding paragraph will be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter will be required to contribute any amount in excess of the amount by which the total price at which the Debt Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 8(d) are several in proportion to the respective principal amount of Debt Securities purchased by each of the Underwriters hereunder and not joint.
(e) The obligations of the Company under this Section 8 will be in addition to any liability which the Company may otherwise have and will extend upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 8 will be in addition to any liability which the respective Underwriters may otherwise have and will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Securities Act.
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters participating in an offering of Debt Securities fails at the applicable Closing Date to purchase the Debt Securities which it or they are obligated to purchase under the applicable Terms Agreement (the "DEFAULTED SECURITIES"), then the Representative will have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representative has not completed such arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10% of the aggregate amount of the Debt Securities to be purchased pursuant to the Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement will be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations thereunder bear to the underwriting obligations of all such non-defaulting Underwriters; or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the aggregate amount of the Debt Securities to be purchased pursuant to such Terms Agreement, the Terms Agreement will terminate without any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 9 will relieve any defaulting Underwriter from liability in respect of its default.
In the event of a default by any Underwriter or Underwriters as set forth in this Section 9, either the Representative or the Company will have the right to postpone the applicable Closing Date for a period not exceeding seven full business days to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements.
10. TERMINATION. Except as provided in the applicable Prospectus Supplement, the obligations of the Underwriters hereunder may be terminated by the Underwriters which have agreed to purchase in the aggregate 50% or more of the aggregate principal amount of Debt Securities by notice given to and received by the Company prior to delivery of and payment for the Debt Securities if, prior to that time, any of the events described in Sections 7(i),(j) and (k) will have occurred or if the Underwriters will decline to purchase the Debt Securities as permitted by Section 9.
11. EFFECT OF TERMINATION OF PRICING AGREEMENT OR NONDELIVERY OF SECURITIES. If the Company fails to tender the Debt Securities for delivery to the Underwriters, or if the Underwriters decline to purchase the Debt Securities for any reason permitted under this Agreement, the Company will reimburse the Underwriters for the reasonable fees and expenses of their counsel and for such other out-of-pocket expenses that they incurred in connection with this Agreement and the proposed purchase of the Debt Securities and upon demand, the Company will pay the full amount hereof to the Representatives. If this Agreement is terminated pursuant to Section 9 hereof by reason of the default of one or more Underwriters, the Company will not be obligated to reimburse the several Underwriters on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements hereunder will be in writing, and:
(a) if to the Underwriters, will be delivered or sent by mail, telex or facsimile transmission as will be directed in the Terms Agreement attached hereto as Annex I; and
(b) if to the Company, will be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: General Counsel (Facsimile: (612) 293-2573).
Any such statements, requests, notices or agreements will take effect at the time of receipt thereof. The Company will be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the lead Underwriter.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement will inure to
the benefit of and be binding upon the Underwriters, the Company, their
respective successors and the controlling persons and officers defined in
Section 8. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons. Nothing in this Agreement is intended or will be
construed to give any person other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of the Debt Securities
from any Underwriter will be deemed a successor or assign by reason merely of
such purchase.
14. SURVIVAL. The respective indemnities, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, will survive the delivery of and payment for any Debt Securities and will remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERM "BUSINESS DAY." For purposes of this Agreement, "Business Day" means any day on which the New York Stock Exchange, Inc., is open for trading.
16. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principle thereof.
17. COUNTERPARTS. This Agreement may be executed in counterparts and, if executed in more than one counterpart, the executed counterparts will each be deemed to be an original but all such counterparts will together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company and the Underwriters please indicate your acceptance in the space provided for that purpose below.
Very truly yours,
ECOLAB INC.
By: /s/ Daniel J. Schmechel
-------------------------------------
Name: Daniel J. Schmechel
Title: Vice President and Treasurer
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Confirmed and accepted as of the date
first above written:
Credit Suisse First Boston Corporation
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph Fashano
------------------------------------
Name: Joseph Fashano
Title: Director
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Acting severally on behalf of itself
and the several Underwriters
ANNEX I
TO UNDERWRITING AGREEMENT
TERMS AGREEMENT
January 23, 2001
Credit Suisse First Boston Corporation
As representative of the
several Underwriters
named in Schedule I hereto
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation (the "COMPANY"), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated January 23, 2001 (the "UNDERWRITING AGREEMENT"), between the Company, on the one hand, and Credit Suisse First Boston Corporation, Banc of America Securities LLC, Chase Securities Inc. and Salomon Smith Barney Inc. on the other hand, to issue and sell to the Underwriters named in Schedule I hereto (the "UNDERWRITERS") the Debt Securities specified in Schedule II hereto (the "DESIGNATED SECURITIES"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and will be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein will be deemed to have been made at and as of the date of this Terms Agreement, except that each representation and warranty which refers to the Prospectus in Section 1 of the Underwriting Agreement will be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined) and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus, as amended or supplemented, relating to the Designated Securities which are the subject of this Terms Agreement. Each reference to the Representative herein and in the provisions of the Underwriting Agreement so incorporated by reference will be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representative designated to act on behalf of each of the Underwriters of the Designated Securities pursuant to the Underwriting Agreement and the addresses of such Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us one of the counterparts hereof. Upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, will constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which will be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
ECOLAB INC.
Accepted as of the date hereof:
Credit Suisse First Boston Corporation
On behalf of each of the Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
SCHEDULE I TO ANNEX I
Underwriters Principal Amount
------------ ----------------
Credit Suisse First Boston Corporation ................... $
Chase Securities Inc. ....................................
Banc of America Securities LLC. ..........................
Salomon Smith Barney Inc. ................................
Total .................................................... $
============
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SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED _____________, ____
REGISTRATION STATEMENT NO. 333-14771
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriters: (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Listing:
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Other Provisions:
APPLICABLE SECURITIES AGREEMENT:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
TIME OF DELIVERY AND LOCATION:
NAMES AND ADDRESS OF REPRESENTATIVE:
Designated Representative: Credit Suisse First Boston Corporation
Address for Notices, etc.: Eleven Madison Avenue, New York, New York 10010-3629
OTHER TERMS:
Exhibit (1)B
TERMS AGREEMENT
January 23, 2001
Credit Suisse First Boston Corporation
As representative of the
several Underwriters
named in Schedule I hereto
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation (the "COMPANY"), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated January 23, 2001 (the "UNDERWRITING AGREEMENT"), between the Company, on the one hand, and Credit Suisse First Boston Corporation, Banc of America Securities LLC, Chase Securities Inc. and Salomon Smith Barney Inc. on the other hand, to issue and sell to the Underwriters named in Schedule I hereto (the "UNDERWRITERS") the Debt Securities specified in Schedule II hereto (the "DESIGNATED SECURITIES"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and will be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein will be deemed to have been made at and as of the date of this Terms Agreement, except that each representation and warranty which refers to the Prospectus in Section 1 of the Underwriting Agreement will be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined) and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus, as amended or supplemented, relating to the Designated Securities which are the subject of this Terms Agreement. Each reference to the Representative herein and in the provisions of the Underwriting Agreement so incorporated by reference will be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representative designated to act on behalf of each of the Underwriters of the Designated Securities pursuant to the Underwriting Agreement and the address of such Representative are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us one of the counterparts hereof. Upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, will constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which will be submitted to the Company for examination upon request, but without warranty on the part of the Representative as to the authority of the signers thereof.
Very truly yours,
ECOLAB INC.
By: /s/ Daniel J. Schmechel
----------------------------------
Name: Daniel J. Schmechel
Title: Vice President and Treasurer
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Accepted as of the date hereof:
Credit Suisse First Boston Corporation
On behalf of each of the Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph Fashano
--------------------------------------
Name: Joseph Fashano
Title: Director
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SCHEDULE I
Underwriters Principal Amount
------------ ----------------
Credit Suisse First Boston Corporation......................... $ 90,000,000
Chase Securities Inc. ......................................... 30,000,000
Banc of America Securities LLC................................. 15,000,000
Salomon Smith Barney Inc. ..................................... 15,000,000
------------
Total.......................................................... $150,000,000
============
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SCHEDULE II
UNDERWRITING AGREEMENT DATED JANUARY 23, 2001
REGISTRATION STATEMENT NO. 333-14771
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES:
Title: 6.875% Notes due February 1, 2011
Aggregate Principal Amount: $150 million
Price to Public: 99.152%
Purchase Price by Underwriters: 98.502% of principal amount, plus accrued interest, if any, from January 26, 2001
Sinking Fund Provisions: None
Redemption Provisions: As described in the prospectus supplement dated January 23, 2001.
Listing: None
APPLICABLE SECURITIES AGREEMENT: None
MATURITY: Februrary 1, 2011
INTEREST RATE: 6.875%
INTEREST PAYMENT DATES: Februrary 1 and August 1, commencing August 1, 2001
REGULAR RECORD DATES: January 15 and July 15
TIME OF DELIVERY AND LOCATION: The Underwriters will pay for the Designated Securities upon delivery thereof at the offices of Shearman & Sterling at 9:00 a.m. (New York time) on January 26, 2001, or at such other time, not later than 1:00 p.m. (New York time), as will be jointly designated by the Representative and the Company.
NAMES AND ADDRESS OF REPRESENTATIVE:
Designated Representative: Credit Suisse First Boston Corporation
Address for Notices, etc.: Eleven Madison Avenue, New York, New York 10010-3629
Exhibit (4)A
ECOLAB INC.
AND
BANK ONE, NATIONAL ASSOCIATION, AS TRUSTEE
(F/K/A THE FIRST NATIONAL BANK OF CHICAGO)
AMENDED AND RESTATED INDENTURE
DATED AS OF JANUARY 9, 2001
ECOLAB INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended and Amended and Restated Indenture dated as of November 1, 1996, as
amended and restated as of January 9, 2001
Trust Indenture Act Section Indenture Section
------------------------------------ -----------------
ss. 310(a)(1) and (2)...........................................6.9, 6.10
(a)(3) and (4)............................................Not Applicable
(a)(5)....................................................Not Applicable
(b).......................................................6.10
(c).......................................................Not Applicable
ss. 311 ........................................................6.15
ss. 312(a)......................................................4.1, 4.2(a)
(b).......................................................4.2(b)
(c).......................................................4.2(c)
ss. 313(a) and (b)..............................................4.4(a)
(c).......................................................4.4(b)
(d).......................................................4.4(c)
ss. 314(a)......................................................4.3
(b).......................................................Not Applicable
(c)(1)....................................................11.5
(c)(2)....................................................11.5
(c)(3)....................................................Not Applicable
(d).......................................................Not Applicable
(e).......................................................11.5
(f).......................................................Not Applicable
ss. 315(a)......................................................6.1
(b).......................................................5.15
(c).......................................................6.1
(d).......................................................6.1, 6.2
(e).......................................................5.16
ss. 316(a)(last sentence).......................................7.4
(a)(1)(A).................................................5.2, 5.12
(a)(1)(B).................................................5.13
(a)(2)....................................................Not Applicable
(b).......................................................5.9
(c).......................................................7.6
ss. 317(a)(1)...................................................5.3
(a)(2)....................................................5.4
(b).......................................................6.5
ss. 318(a)......................................................11.7
(c).......................................................11.7
-----------
Note: This Cross Reference Sheet is part of this Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE IDEFINITIONS................................................................................1
1.1 Certain Terms Defined....................................................1
ARTICLE IISECURITIES................................................................................9
2.1 Forms Generally..........................................................9
2.2 Form of Trustee's Certificate of Authentication.........................10
2.3 Amount Unlimited; Issuable in Series....................................11
2.4 Execution of Securities.................................................14
2.5 Certificate of Authentication...........................................14
2.6 Authentication and Delivery of Securities...............................15
2.7 Denomination and Date of Securities; Payments of
Interest................................................................17
2.8 Registration, Transfer and Exchange.....................................17
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities..............................................................21
2.10 Cancellation of Securities; Destruction Thereof.........................22
2.11 Temporary Securities....................................................22
2.12 CUSIP Numbers...........................................................23
2.13 Computation of Interest.................................................23
2.14 Wire Transfers..........................................................23
2.15 Payment of Interest, Interest Rights Preserved..........................23
ARTICLE IIICOVENANTS OF THE COMPANY................................................................24
3.1 Payment of Principal and Interest.......................................24
3.2 Offices for Payments, Etc...............................................25
3.3 Appointment to Fill a Vacancy in Office of Trustee......................26
3.4 Paying Agents...........................................................26
3.5 Written Statement to Trustee............................................27
3.6 Luxembourg Publications.................................................27
3.7 Limitation on Liens on Stock or Indebtedness of
Significant Subsidiaries................................................27
3.8 Existence...............................................................27
3.9 Waiver of Certain Covenants.............................................28
3.10 Calculation of Original Issue Discount..................................28
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ARTICLE IV
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.....................................................................28
4.1 Company to Furnish Trustee with Names and Addresses
of Holders..............................................................28
4.2 Preservation of Information; Communications to
Holders.................................................................28
4.3 Reports by the Company..................................................30
4.4 Reports by the Trustee..................................................30
ARTICLE VREMEDIES..................................................................................31
5.1 Events of Default.......................................................31
5.2 Acceleration of Maturity; Rescission and Annulment......................32
5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee..............................................................33
5.4 Trustee May File Proofs of Claim........................................34
5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons...................................................35
5.6 Application of Money Collected..........................................35
5.7 Limitation on Suits.....................................................36
5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................................36
5.9 Restoration of Rights and Remedies......................................37
5.10 Rights and Remedies Cumulative..........................................37
5.11 Delay or Omission Not Waiver............................................37
5.12 Control by Holders of Securities........................................37
5.13 Waiver of Past Defaults.................................................38
5.14 Waiver of Stay or Extension Laws........................................38
5.15 Notice of Defaults......................................................38
5.16 Undertaking for Costs...................................................39
ARTICLE VICONCERNING THE TRUSTEE...................................................................39
6.1 Duties and Responsibilities of the Trustee, Prior to
Default.................................................................39
6.2 Certain Rights of the Trustee...........................................40
6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof...........................41
6.4 Trustee and Agents May Hold Securities or
Coupons; Collections; etc...............................................42
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PAGE
6.5 Moneys Held in Trust....................................................42
6.6 Compensation and Indemnification of Trustee and Its
Prior Claim.............................................................42
6.7 Right of Trustee to Rely on Officer's Certificate, Where
No Other Evidence Specifically Prescribed...............................43
6.8 Indentures Not Creating Potential Conflicting Interests
for the Trustee.........................................................43
6.9 Corporate Trustee Required; Persons Eligible for
Appointment as Trustee..................................................43
6.10 Resignation and Removal; Appointment of Successor
Trustee.................................................................44
6.11 Acceptance of Appointment by Successor Trustee..........................46
6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee.....................................................47
6.13 Appointment of Authenticating Agent.....................................47
6.14 Compliance with Tax Laws................................................49
6.15 Preferential Collection of Claims against Company.......................49
ARTICLE VII
CONCERNING THE HOLDERS...............................................................49
7.1 Evidence of Action Taken by Holders.....................................49
7.2 Proof of Execution of Instruments and of Holdings of
Securities..............................................................49
7.3 Holders to Be Treated as Owners.........................................50
7.4 Securities Owned by Company Deemed Not
Outstanding.............................................................51
7.5 Right of Revocation of Action Taken.....................................51
7.6 Record Date for Consents and Waivers....................................52
ARTICLE VIII
SUPPLEMENTAL INDENTURES...............................................................52
8.1 Supplemental Indentures Without Consent of Holders......................52
8.2 Supplemental Indentures with Consent of Holders.........................54
8.3 Effect of Supplemental Indenture........................................56
8.4 Documents to Be Given to Trustee; Execution of
Supplemental Indentures.................................................57
8.5 Notation on Securities in Respect of Supplemental
Indentures..............................................................57
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.............................................57
9.1 Company May Consolidate, etc., on Certain Terms.........................57
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PAGE
9.2 Successor Company Substituted...........................................58
9.3 Opinion of Counsel to Trustee...........................................59
ARTICLE X
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS...........................................................59
10.1 Satisfaction and Discharge of Indenture.................................59
10.2 Application by Trustee of Funds Deposited for Payment
of Securities...........................................................63
10.3 Repayment of Moneys Held by Paying Agent................................63
10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for One Year..................................................63
10.5 Indemnity for U.S. Government Obligations...............................64
ARTICLE XI
MISCELLANEOUS PROVISIONS..............................................................64
11.1 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability.............................64
11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons...................................64
11.3 Successors and Assigns of Company Bound by
Indenture...............................................................64
11.4 Notices and Demands on Company, Trustee and Holders
of Securities and Coupons...............................................64
11.5 Officer's Certificates and Opinions of Counsel, Statements
to Be Contained Therein.................................................65
11.6 Payments Due on Saturdays, Sundays and Holidays.........................66
11.7 Conflict of any Provision of Indenture with Trust
Indenture Act...........................................................67
11.8 New York Law to Govern..................................................67
11.9 Counterparts............................................................67
11.10 Effect of Headings......................................................67
11.11 Securities in a Foreign Currency........................................67
11.12 Judgment Currency.......................................................68
11.13 Separability Clause.....................................................68
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS............................................68
12.1 Applicability of Article................................................68
12.2 Notice of Redemption, Partial Redemptions...............................69
12.3 Payment of Securities Called for Redemption.............................70
12.4 Exclusion of Certain Securities from Eligibility for
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Selection for Redemption................................................71
12.5 Mandatory and Optional Sinking Funds....................................71
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THIS AMENDED AND RESTATED INDENTURE, dated as of January 9, 2001, between ECOLAB INC., a Delaware corporation (the "COMPANY"), and BANK ONE, NATIONAL ASSOCIATION (F/K/A THE FIRST NATIONAL BANK OF CHICAGO), a national banking association, as trustee (the "TRUSTEE"), amends and restates the Indenture, dated as of November 1, 1996, between the Company and the Trustee.
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness, to be issued in one or more series (the "SECURITIES") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Company and the Trustee entered into the Indenture as of November 1, 1996;
WHEREAS, the Company and the Trustee have agreed that the Indenture should be amended and restated in the form hereof; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities and of any Coupons as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN TERMS DEFINED. The following terms (except as otherwise expressly provided or unless the context otherwise requires), for all purposes of this Indenture and of any indenture supplemental hereto, will have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act or are defined therein by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), will have the meaning assigned to such terms in the Trust Indenture Act and in the Securities Act, both as in force on the date this Indenture was originally executed. All accounting terms used herein and not expressly defined will have the meanings assigned to such terms in accordance with generally accepted accounting principles. The words "HEREIN," "HEREOF," "HEREUNDER" and similar words refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. Terms defined in this Article include the plural as well as the singular.
AUTHENTICATING AGENT has the meaning set forth in Section 6.13.
AUTHORIZED NEWSPAPER means a newspaper (which, in the case of the City of New York, will, if practicable, be THE WALL STREET JOURNAL (Eastern Edition); in the case of the United Kingdom, will, if practicable, be THE FINANCIAL TIMES (London Edition); and, in the case of Luxembourg, will, if practicable, be THE LUXEMBURGER WORT) published in an official language of the country of publication, customarily published at least once a day for at least five days in each calendar week and of general circulation in the City of New York, the United Kingdom or in Luxembourg, as applicable. If it is impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made with the approval of the Trustee will constitute a sufficient publication of such notice.
BEARER SECURITY means any Security other than a Registered Security.
BOARD OF DIRECTORS means either the Board of Directors of the Company or any committee of such Board duly authorized to act on its behalf.
BOARD RESOLUTION means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted or consented to by the Board of Directors and to be in full force and effect and delivered to the Trustee.
BUSINESS DAY means, with respect to any Security, a day that, in the city of the principal Corporate Trust Office of the Trustee and in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is neither a Saturday, Sunday, a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close.
CERTIFICATE OF AUTHENTICATION has the meaning specified in
Section 2.2.
COMMISSION means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
COMPANY means Ecolab Inc., a Delaware corporation, and, subject to Article IX, its successors and assigns.
COMPANY ORDER means a written statement, request or order of the Company signed in its name by the Chairman or Vice Chairman of the Board of Directors, the President, any Vice President or the Treasurer of the Company (or any other officer performing similar functions).
CORPORATE TRUST OFFICE means the office of the Trustee at which the corporate trust business of the Trustee is, at any particular time, principally administered, which office is, as of the date on which this Indenture is dated, located in Chicago, Illinois.
c/o Bank One, National Association Bank One Plaza Suite IL1-0126 Chicago, Illinois 60670-0126 Attention: Benita Pointer Phone: (312) 407-5252
Where the terms of the Indenture refer to performance in New York, New York the location and address of the office are as follows:
14 Wall Street 8th Floor, Window 2 New York, NY 10005 Attention: Corporate Trust Administration
COUPON means any interest coupon appertaining to a Bearer Security.
COVENANT DEFEASANCE has the meaning specified in Section 10.1(c).
DEFAULT means any event or condition which, with notice or lapse of time or both, would become an Event of Default.
DEFAULTED INTEREST has the meaning specified in Section 2.15.
DEPOSITARY means, with respect to the Securities of any series issuable in the form of one or more Registered Global Securities, the Person designated as Depositary by the Company pursuant to Section 2.3 until a successor Depositary will become such pursuant to the applicable provisions of this Indenture, and thereafter "DEPOSITARY" means or includes each Person who is then a Depositary hereunder, and, if at any time there is more than one such Person, "DEPOSITARY," as used with respect to the Securities of any such series, means the Depositary with respect to the Registered Global Securities of that series.
DOLLAR means the coin or currency of the United States that at the time of payment is legal tender for the payment of public and private debts.
EVENT OF DEFAULT has the meaning specified in Section 5.1.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
FLOATING RATE SECURITY means a Security which provides for the payment of interest at a variable rate determined periodically by reference to an interest rate index or any other index specified pursuant to Section 3.1.
FOREIGN CURRENCY means a currency issued by the government of a country other than the United States.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES means such accounting principles in the United States as are generally accepted at the time of any computation.
GLOBAL SECURITY means a Security as contemplated by Section 2.3 evidencing all or part of a series of Securities, which in each case have the same terms, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee.
HENKEL-ECOLAB JOINT VENTURE means the joint venture formed pursuant to the Amended and Restated Umbrella Agreement, dated as of June 26, 1991, between the Company and Henkel Kommanditgesellschaft auf Aktien ("HENKEL KGAA") and the Joint Venture Agreement, dated as of June 26, 1991, between the Company and Henkel KGaA.
HOLDER means (a) in the case of a Registered Security, the
Person in whose name such Security is registered in the Security Register and
(b) in the case of a Bearer Security or any Coupon, the bearer thereof.
INCORPORATED PROVISION has the meaning set forth in Section 11.7.
INDENTURE means this instrument as originally executed and delivered, or if amended, supplemented or restated as herein provided, as so amended, supplemented or restated or any combination thereof, and includes the forms and terms of particular series of Securities established as contemplated hereunder.
INTEREST, when used with respect to an Original Issue Discount Security which by its terms bears interest only after maturity, means interest payable after maturity, and, when used with respect to a Security which provides for the payment of additional amounts, includes such additional amounts.
INTEREST PAYMENT DATE, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
JOURNAL has the meaning set forth in Section 11.11.
JUDGMENT CURRENCY has the meaning set forth in Section 11.12.
LIEN means any mortgage, pledge, lien, encumbrance, charge or security interest of any kind.
MANDATORY SINKING FUND PAYMENT has the meaning set forth in
Section 12.5.
MARKET EXCHANGE RATE has the meaning set forth in Section 11.11.
MATURITY, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
NEW YORK BANKING DAY has the meaning set forth in Section 11.12.
NOTICE OF DEFAULT has the meaning set forth in Section 5.1.
NON-U.S. PERSON means any Person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
OBLIGATION means every obligation for money borrowed and every obligation evidenced by a bond, note, debenture or other similar instrument.
OFFICER'S CERTIFICATE means a certificate signed by the Chairman or Vice Chairman of the Board of Directors, the President, or any Vice President or the Treasurer of the Company and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.
OPINION OF COUNSEL means an opinion in writing signed by the General Counsel of the Company or by such other legal counsel who may be an employee of or counsel to the Company and who shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 11.5.
ORIGINAL ISSUE DATE of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
ORIGINAL ISSUE DISCOUNT SECURITY means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.2.
OPTIONAL SINKING FUND PAYMENT has the meaning set forth in
Section 12.5
OUTSTANDING when used with respect to any series of Securities, subject to the provisions of Section 7.4, means, as of the date of determination, all Securities theretofore authenticated and delivered by the Trustee under this Indenture, except:
(1) Securities of that series theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities of that series, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations in the necessary amount (as provided for in Section 10.1) have been deposited in trust with the Trustee or with any Paying Agent (other than Company) or set aside, segregated and held in trust by the Company for the Holders of such Securities (if the Company acts as its own Paying Agent), PROVIDED that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption has been given as herein provided, or provision satisfactory to the Trustee has been made for giving such notice; and
(3) Securities which have been paid or in substitution for
which other Securities have been authenticated and delivered pursuant to Section
2.9 (except with respect to any such Security as to which proof satisfactory to
the Trustee is presented that such Security is held by a Person in whose hands
such Security is a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that is deemed to be Outstanding for such purposes is the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2.
PAYING AGENT means any Person authorized by the Company to pay the principal of or interest on any Securities or Coupons on behalf of the Company.
PERIODIC OFFERING means an offering of Securities of a series from time to time, the specific terms of which, including, without limitation, the rate or rates of interest, if any, thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
PERSON means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT means, when used with respect to the
Securities of any series, the place or places where the principal of and
interest on, the Securities of that series are payable, as contemplated by
Section 2.3.
PRINCIPAL of Security means principal amount of, and unless the context indicates otherwise, includes any premium payable on, the Security.
REDEMPTION DATE, when used with respect to any Security to be redeemed in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
REDEMPTION PRICE, when used with respect to any Security to be redeemed, means the price, in the currency or currency unit in which such Security is denominated or which is otherwise provided for pursuant hereto, at which it is to be redeemed pursuant to this Indenture.
REGISTERED GLOBAL SECURITY means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.6.
REGISTERED SECURITY means any Security registered on the Security Register of the Company.
REGULAR RECORD DATE as used with respect to any Interest Payment Date (except a date for payment of Defaulted Interest) for the Securities of any series means the date specified as such in the terms of the Registered Securities of such series, or, if no such date is specified, if such Interest Payment Date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.
REQUIRED CURRENCY has the meaning set forth in Section 11.12.
RESPONSIBLE OFFICER, when used with respect to the Trustee, means the chairman of the Board of Directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president (whether or not designated by numbers or words added before or after the title
"VICE PRESIDENT"), the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time are such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
SECURITY or SECURITIES has the meaning stated in the first recital of this Indenture, or, as the case may be, any debt security or debt securities that have been authenticated and delivered under this Indenture and, unless the context indicates otherwise, shall include any Coupon appertaining thereto.
SECURITIES ACT means the Securities Act of 1933, as amended.
SECURITY REGISTER and SECURITY REGISTRAR have the respective meanings set forth in Section 2.8.
SIGNIFICANT SUBSIDIARY means (a) any Subsidiary which at the time of determination had total assets which, as of the date of the Company's most recent quarterly consolidated balance sheet, constituted at least 10% of the Company's total assets on a consolidated basis as of such date or (b) any Subsidiary which at the time of determination had net sales which, for the three-month period ending on the date of the Company's most recent consolidated statement of income, constituted at least 10% of the Company's net sales on a consolidated basis for such period.
SINKING FUND PAYMENT DATE has the meaning set forth in Section 12.5.
SPECIAL RECORD DATE for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee for such series pursuant to Section 2.7.
STATED MATURITY when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or Coupon representing such installment of interest as the fixed date on which the payment of principal of such Security or such installment of principal or interest is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such Security at the option of the holder thereof upon the happening of any contingency beyond the control of the Company unless such contingency has occurred).
SUBSIDIARY means any corporation of which the Company directly or indirectly owns or controls stock which under ordinary circumstances (not dependent upon the happening of a contingency) has the voting power to elect a majority of the board of directors of such corporation.
TRUST INDENTURE ACT (except as otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as in force on the date as of which this Indenture was originally executed, PROVIDED, HOWEVER, that in the event that the Trust Indenture Act of 1939 is amended after such date, "TRUST INDENTURE ACT," to the extent required by any such amendment, means the Trust Indenture Act of 1939 as so amended.
TRUSTEE means the Person identified as Trustee in the first paragraph hereof and, subject to the provisions of Article VI, includes any agent of such trustee and any successor trustee. Trustee also means or includes each Person who is then a trustee hereunder and, if at any time there is more than one such Person, Trustee as used with respect to the Securities of any series means the Trustee with respect to the Securities of such series.
UNITED STATES or U.S. means the United States of America (any state thereof and the District of Columbia), its territories, its possessions and other areas as subject to its jurisdiction (including the Commonwealth of Puerto Rico).
U.S. GOVERNMENT OBLIGATIONS has the meaning set forth in
Section 10.1(a).
U.S. PERSON means a citizen or resident of the United States, a corporation, partnership, joint venture, limited liability company, association, joint-stock company, unincorporated organization or other entity or government or any agency or political subdivision thereof created or organized in or under the laws of the United States, or an estate or trust, the income of which is subject to United States federal income taxation regardless of its source.
YIELD TO MATURITY means the yield to maturity on a series of Securities calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice as is specified in the terms of such Security (in each case as determined by the Company).
ARTICLE II
SECURITIES
2.1 FORMS GENERALLY. The Securities of each series and the Coupons, if any, to be attached thereto will be substantially in such form (not inconsistent with this Indenture) established by or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in a Board Resolution, in an Officer's Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons. Unless otherwise so established, Bearer Securities will have Coupons attached.
Bearer Securities and any Coupons related thereto will bear a legend substantially to the following effect: "Any U.S. Person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code."
The definitive Securities and Coupons, if any, will be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons, if any.
2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's certificate of authentication (a "CERTIFICATE OF AUTHENTICATION") on all Securities will be in substantially the following form:
"Date:
This is one of the Securities referred to in the within-mentioned Indenture.
Bank One, National Association, as Trustee
If at any time an Authenticating Agent is appointed with respect to any series of Securities, then the Authenticating Agent's certificate of authentication to be borne on the Securities of each such series will be substantially as follows:
"Date:
This is one of the Securities referred to in the within-mentioned Indenture.
[ ], as Authenticating Agent
2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each such series will rank equally and PARI PASSU with all other unsecured and unsubordinated Obligations of the Company. There will be established by or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in a Board Resolution, in an Officer's Certificate detailing such establishment) or in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series:
(a) the title of the Securities, which will distinguish the Securities of such series from the Securities of all other series;
(b) any limit on the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant to Sections 2.8, 2.9, 2.11 or 12.3);
(c) the date or dates (which may be fixed or extendible) on which the principal of the Securities will be payable;
(d) (1) the rate or rates per annum (which may be fixed or variable) at which the Securities of the series will bear interest, if any, (2) the dates from which such interest, if any, will accrue, on which such interest will be payable and, in the case of Registered Securities, on which a record will be taken for the determination of Holders to whom interest is payable and/or (3) the method by which such rate or rates or date or dates will be determined;
(e) the method by which amounts payable of principal of or interest, if any, on such Securities may be calculated, and any currencies, commodities or indices, or value, rate or price, relevant to such calculation;
(f) if other than as provided in Section 3.2, the place or places where the principal of and any interest on Securities of the series will be payable;
(g) the right, if any, of the Company to redeem or cause to be redeemed Securities of the series, in whole or in part, at its option and the period or periods within which, the price or prices (and/or method by which such price or prices will be determined) at which and any terms and conditions upon which and the manner in which (if different from the provision of Article XII hereof) Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series, in whole or in part, pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and other detailed terms and provisions of any such redemption or sinking fund;
(i) the denominations in which Registered Securities of the series, if any, will be issuable if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which Bearer Securities of the series, if any, will be issuable if other than denominations of $1,000 or $5,000;
(j) if other than the entire principal amount thereof, the portion of the principal amount of Securities of the series which will be payable upon declaration of acceleration of the maturity thereof;
(k) if the Securities are Original Issue Discount Securities, the amount (or the method of calculating such amount) of principal payable upon acceleration of such Securities following an Event of Default;
(l) whether the Securities are to be issued as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities (with or without Coupons) or both, and any restrictions applicable to the offer, sale or delivery of Bearer Securities or the payment of interest thereon and, if other than as provided in Section 2.8, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa, and the circumstances under which and the place or places at which any such exchanges, if permitted, may be made;
(m) whether the Securities will be issued in whole or in part in temporary or permanent global form and, if so, the initial Depositary with respect to such Global Security (if other than as provided in Section 2.6);
(n) if a temporary Global Security is to be issued with respect to the Securities, the terms upon which beneficial interests in such temporary Global Security may be exchanged, in whole or in part for beneficial interests in a definitive Global Security or for individual Securities of the series and the terms
upon which beneficial interests in a definitive Global Security, if any, may be exchanged for individual Securities having the same terms;
(o) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(p) the coin or currency in which payment of the principal of and interest on the Securities will be made, if other than Dollars;
(q) any provisions enabling the Company or Holders of Securities to elect to make or receive payments of the principal of or interest on the Securities in a coin or currency other than that in which the Securities are stated to be payable;
(r) the right of the Company to defease the Securities of the series (including provisions permitting the defeasance of less than all Securities of the series) or certain covenants under the Indenture, which provisions may be in addition to, in substitution for or in modification of (or any combination of the foregoing) the provisions of Article X;
(s) any addition to or modification or deletion of any Event of Default or any covenant specified in the Indenture with respect to the Securities of such series;
(t) the Person to whom any interest on the Securities is payable, if other than the registered Holder thereof, or the manner in which any interest is payable on a Bearer Security if other than upon presentation of the Coupons attached thereto;
(u) any trustees, depositaries, authenticating or Paying Agents, transfer agents or Security Registrars or any other agents with respect to the Securities of such series;
(v) if the Securities of the series are issuable, in whole or in part, as one or more Registered Global Securities, the identity of the Depositary for such Registered Global Security or Securities;
(w) offices at which presentations and demands may be made and notices may be served, if other than the Corporate Trust Office of the Trustee;
(x) whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by Non-U.S. Persons in respect of any tax, assessment or governmental charge withheld or deducted and, if
so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts; and
(y) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and any Coupons appertaining thereto will be substantially identical, except (1) in the case of Registered Securities as to date and denomination, (2) in the case of any Periodic Offering and (3) as may otherwise be provided by or pursuant to the Board Resolution or Officer's Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution, Officer's Certificate or indenture supplemental hereto, and any forms or terms of Securities to be issued from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in such Board Resolution, Officer's Certificate or supplemental indenture.
2.4 EXECUTION OF SECURITIES. The Securities and any Coupons will each be signed on behalf of the Company by the Chairman or Vice Chairman of its Board of Directors or its President, any Vice President or its Treasurer (or any other officer performing similar functions), under its corporate seal (except in the case of Coupons) which may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future authorized officers. The seal of the Company may be in the form of a facsimile thereof. The seal and the signatures may be impressed, affixed (in the case of the seal), imprinted or otherwise reproduced on the Securities and any Coupons. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature will not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
Securities and Coupons bearing manual or facsimile signatures of individuals who were at any time proper officers of the Company will bind the Company, notwithstanding that such individuals have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or Coupons.
2.5 CERTIFICATE OF AUTHENTICATION. Except as provided in
Section 6.13 hereof, only such Securities which bear thereon a Certificate of
Authentication substantially in the form hereinbefore recited, signed manually
by an authorized officer of the Trustee, will be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. No Coupon will be
entitled to the benefits of this Indenture or will be valid and obligatory for
any purpose until the Certificate of Authentication on the Security to which
such Coupon appertains has been duly
executed by the Trustee. Such certificate by the Trustee upon any Security executed by the Company will be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder.
2.6 AUTHENTICATION AND DELIVERY OF SECURITIES. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Company and delivered to the Trustee for authentication, together with the applicable documents referred to below in this Section, and the Trustee will thereupon authenticate and deliver such Securities and Coupons, if any, in accordance with a Company Order or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by a Company Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and Coupons, if any, will be determined by or pursuant to such Company Order and procedures. If provided for in such procedures, such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent, which instructions shall be promptly confirmed in writing.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee will be entitled to receive (in the case of subparagraphs (a), (b) and
(c) below only at or before the time of the first request of the Company to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
will be fully protected in relying upon, unless and until such documents have
been superseded or revoked, the following documents:
(a) any Board Resolution, Officer's Certificate and/or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and terms of the Securities and any Coupons were established;
(b) an Officer's Certificate setting forth the form and terms of the Securities and any Coupons, stating that such form and terms have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering other matters that the Trustee may reasonably request; and
(c) at the option of the Company, either an Opinion of Counsel or a letter addressed to the Trustee permitting it to rely on an Opinion of Counsel, substantially to the effect that:
(1) the forms of the Securities and any Coupons
have been duly authorized and established in conformity with the provisions of
this Indenture;
(2) the terms of the Securities and any Coupons
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have been established in conformity with the provisions of this Indenture;
(3) the Securities and any Coupons, when authenticated and delivered by the Trustee and issued by the Company in accordance with the provisions of this Indenture and delivered to and paid for by the purchasers thereof, will be entitled to the benefits of this Indenture, have been duly issued under this Indenture and will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as the (A) enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and (B) rights of acceleration and the availability of equitable remedies may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(4) all legal requirements in respect of the execution and delivery by the Company of such Securities have been complied with; and
(5) the authentication and delivery of such Securities and the execution and delivery of any supplemental indenture will not violate the terms of this Indenture.
Such Opinion of Counsel need not express any opinion as to whether a court in the United States would render a money judgment in a currency other than Dollars.
In rendering such opinions, counsel may rely, as to all matters governed by the laws of jurisdictions other than the federal law of the United States, upon opinions of other counsel (copies of which will be delivered to the Trustee), who will be counsel reasonably satisfactory to the Trustee, in which case the opinion will state that counsel believes counsel and the Trustee are entitled so to rely. Counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent counsel deems proper, upon certificates of officers of the Company and its Subsidiaries and certificates of public officials.
The Trustee will have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers, will determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee's own rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Company establishes pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities, then the Company will execute and the Trustee will, in accordance with this Section 2.6 upon receipt of the Company's Order with respect to such series, authenticate and deliver one or more Registered Global Securities that will (a)
represent and be denominated in an amount equal to the aggregate principal amount of all or a portion of the Securities of such series issued and not yet canceled or exchanged, (b) be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (c) be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions and (d) bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred, except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable law or regulation.
2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST. The Securities of each series will be issuable as Registered Securities or Bearer Securities in denominations as specified pursuant to Section 2.3 or, with respect to the Registered Securities of any series, if not so established, in denominations of $1,000 and any integral multiple thereof. If denominations of Bearer Securities of any series are not so established, such Bearer Securities will be issuable in denominations of $1,000 or $5,000. The Securities of each series will be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine, as evidenced by the execution thereof.
Each Registered Security will be dated the date of its authentication. Each Bearer Security will be dated pursuant to Section 2.3. The Securities of each series will bear interest, if any, from the date, and such interest will be payable on the dates, established pursuant to Section 2.3.
2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Company will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section 3.2 (the "SECURITY REGISTRAR") for each series of Securities a register (the "SECURITY REGISTER") in which, subject to such reasonable regulations as it may prescribe, the Company will provide for the registration and transfer of Registered Securities as provided herein. The Security Register will be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such Security Register will be open for inspection by the Trustee.
Upon the presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Company will execute and the Trustee will authenticate and deliver in the name of the transferee or transferees new Registered Securities of like series, tenor and aggregate principal amount in authorized denominations.
Bearer Securities and Coupons appertaining thereto will be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged as provided below for a Security of the same series, tenor and aggregate principal amount in authorized denominations, upon surrender of such Security at an office or agency to be maintained for such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, and the Company will execute, and the Trustee will authenticate and deliver in exchange therefor, the Securities which the Holder making the exchange will be entitled to receive, each bearing a number or other distinguishing symbol not contemporaneously outstanding. Subject to the foregoing: (a) a Registered Security of any series (other than a Registered Global Security, except as set forth below) may be exchanged for a Registered Security of the same series; (b) if the Securities of any series are issued in both registered and bearer form, except as otherwise specified pursuant to Section 2.3, a Bearer Security may be exchanged for a Registered Security of the same series, but a Registered Security may not be exchanged for a Bearer Security; and (c) if Bearer Securities of any series are issued in more than one authorized denomination, except as otherwise specified pursuant to Section 2.3, any such Bearer Security may be exchanged for a Bearer Security of the same series; PROVIDED that in connection with the surrender of any Bearer Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default must be surrendered with the Bearer Securities being exchanged.
All Registered Securities presented for registration of transfer, exchange, redemption, repurchase or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or its attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge will be made for any such transaction.
If the Company redeems, in whole or in part, the Securities of any series (or of any series and specified tenor), the Company will not be required to (a) issue, register the transfer of or exchange any Security of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 Business Days before the first publication of the relevant
notice of redemption or, if Registered Securities are Outstanding and there is no publication, the day of mailing of a notice of redemption or exchange of any such Security selected for redemption and ending at the close of business on the day of such mailing, (b) register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any such Registered Security being redeemed in part or (c) exchange any Bearer Security called for redemption, except to exchange any Bearer Security for a Registered Security of that series and of like tenor and principal amount that is immediately surrendered for redemption.
Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Securities, or if at any time the Depositary for such Registered Securities is no longer eligible under Section 2.6, the Company will appoint a successor Depositary eligible under Section 2.6 with respect to such Registered Securities. If the Company does not appoint a successor Depositary eligible under Section 2.6 for such Registered Securities within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 2.3 that such Registered Securities be represented by one or more Registered Global Securities will no longer be effective, and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without Coupons, in any authorized denominations, of like tenor, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or Securities.
The Company may at any time and in its sole discretion determine that Registered Securities of any series issued in the form of one or more Registered Global Securities will no longer be represented by Registered Global Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver, Registered Securities of such series and tenor in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Securities representing such Registered Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of Registered Global Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with a reasonable supply of certified Registered Securities without the legend required by Section 2.3. The Trustee agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to the terms of the Indenture.
If specified by the Company pursuant to Section 2.3 with respect to Registered Securities represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in whole or in part, in exchange, for Registered Securities of the same series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company will execute, and the Trustee will authenticate and deliver, without service charge:
(a) to the Person specified by such Depositary a new Registered Security of the same series and tenor, of any authorized denominations as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Registered Global Security; and
(b) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Global Security for Registered Securities, of like tenor, in authorized denominations, such Registered Global Security will be canceled by the Trustee or an agent of the Company or the Trustee. Registered Securities in definitive form without Coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8 will be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, will instruct the Trustee or agent of the Company or the Trustee. The Trustee or such agent will deliver such Registered Securities to or as directed by the Persons in whose names such Registered Securities are so registered.
All Securities issued upon any transfer or exchange of Securities will be valid obligations of the Company, evidencing the same Obligations, and entitled to the same benefits under this Indenture as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary, none of the Company, the Trustee or any agent of the Company or the Trustee will be required to exchange any Bearer Security for any Outstanding Registered Security if such exchange would result in adverse federal income tax consequences to the Company (such as, for example, the inability of
the Company to deduct from its income, as computed for federal income tax purposes, the interest payable on the Bearer Securities) under then applicable United States federal income tax laws. The Trustee and such agent are entitled to rely on an Officer's Certificate and an Opinion of Counsel in determining such result.
2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In case any temporary or definitive Security or any Coupon has been mutilated, defaced, destroyed, lost or stolen, the Company in its discretion and in the absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a bona fide purchaser, may execute, and upon a Company Order, the Trustee will authenticate and deliver, a replacement Security of like series, tenor and principal amount, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen, with Coupons corresponding to the Coupons appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a substitute Security or Coupon will furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as may be required by any of them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof and in the case of mutilation or defacement, will surrender the Security and related Coupons to the Trustee or such agent. The Company may charge such Holder for any tax or other governmental charge and any other expenses (including the fees and expenses of the Trustee or its agent connected therewith) incurred in replacing such Security or Coupon. In case any Security or Coupon which has matured or is about to mature or has been called for redemption in full is mutilated, defaced, destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same or the relevant Coupon (without surrender thereof except in the case of a mutilated or defaced Security or Coupon) if the applicant for such payment furnishes to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee and any agent of the Company or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this Section 2.9 by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen will constitute an additional contractual obligation of the Company and will be entitled to all the benefits of (but subject to all the limitation of rights set forth in) this Indenture equally and proportionately with any and all other Securities or Coupons of such series duly authenticated and
delivered hereunder. To the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and Coupons and preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All Securities and Coupons surrendered for payment, repurchase, redemption, registration of transfer or exchange, or credit against any payment in respect of a sinking or analogous fund, if surrendered to the Company or any agent of the Company or the Trustee or any agent of the Trustee, will be delivered to the Trustee or its agent for cancellation. The Trustee or its agent will destroy such cancelled Securities and Coupons and deliver a certificate of destruction to the Company. Acquisition by the Company or its agent of such Securities or Coupons will not operate as redemption or satisfaction of the indebtedness represented by such Securities or Coupons until they are delivered to the Trustee or its agent for cancellation. The Company may also deliver to the Trustee for cancellation as described above any Securities or Coupons previously authenticated hereunder which the Company has not issued or sold. The Company will not issue new Securities or Coupons to replace Securities or Coupons it has paid in full or delivered to the Trustee for cancellation, except as expressly permitted by this Indenture.
2.11 TEMPORARY SECURITIES. Until definitive Securities for any series are ready for delivery, the Company may execute, and the Trustee will authenticate and deliver, temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series will be substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company with the concurrence of the Trustee as evident by the execution and authentication thereof. Every temporary Security will be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. The Company will cause definitive Securities of such series to be prepared without unreasonable delay. Thereupon temporary Securities of such series may be exchanged therefor without charge, in the case of Registered Securities, at each office or agency to be maintained by the Company for that purpose pursuant to Section 3.2 and, in the case of Bearer Securities, at any office or agency maintained by the Company for such purpose as specified pursuant to Section 2.3. Upon surrender of such temporary Securities, the Trustee will authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the same series, tenor and authorized denominations and, in the case of Bearer Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series will be entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section 2.11 are subject to any restrictions or limitations
that may be established with respect to the Securities of any series pursuant to
Section 2.3 (including any provision that Bearer Securities of such series
initially be issued in the form of a single Global Bearer Security to be
delivered to a depositary or agency located outside the United States and the
procedures pursuant to which definitive or Global Bearer Securities of such
series would be issued in exchange for such temporary Global Bearer Security).
2.12 CUSIP NUMBERS. In issuing the Securities, the Company may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee will use "CUSIP" numbers in notices of redemption or exchange as a convenience to Holders. No representation will be made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or exchange.
2.13 COMPUTATION OF INTEREST. Except as otherwise specified pursuant to Section 2.3 for Securities of any series, interest on the Securities of each series will be computed on the basis of a 360-day year of twelve 30-day months.
2.14 WIRE TRANSFERS. Notwithstanding any other provision to the contrary in this Indenture, the Company may make any payment of monies required to be deposited with the Trustee on account of principal of or interest on the Securities (whether pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in immediately available funds to an account designated by the Trustee on or before the date such moneys are to be paid to the Holders of the Securities in accordance with the terms hereof.
2.15 PAYMENT OF INTEREST, INTEREST RIGHTS PRESERVED. Interest on any Security which is payable and is punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name that Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "DEFAULTED INTEREST") will forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which will be fixed in the following manner. The Company will notify the Trustee in writing as
to the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company will deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or will make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee will fix a Special Record Date for the payment of such Defaulted Interest which will be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee will promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, will cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest will be paid to the persons in whose names the Securities of such series (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and will no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment is deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.15, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security will carry the rights of interest accrued and unpaid, and to accrue, which were carried by such other Security.
ARTICLE III
COVENANTS OF THE COMPANY
3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly and punctually pay or cause to be paid the principal of and interest on each of the Securities of such series in the manner provided herein and in such Securities and in any Coupons. The interest on Bearer Securities with Coupons attached will be payable only upon presentation and surrender of the Coupons evidencing the right to such installment of interest as they severally mature. The interest on any temporary Bearer Security will be paid, as to the installments of interest evidenced by any Coupons attached thereto only upon presentation and surrender thereof,
and, as to any other installments of interest, only upon presentation of such Securities for notation thereon of the payment of such interest, in each case subject to any restrictions in Section 2.3. The interest on Registered Securities will be payable only to or upon the written order of the Holders entitled thereto and, at the option of the Company, may be paid by wire transfer or by mailing checks payable to such Holders at their last addresses on the Security Register.
3.2 OFFICES FOR PAYMENTS, ETC. The Company will maintain in the Borough of Manhattan, the City of New York, an agency where (a) the Registered Securities of each series may be presented for payment and, if applicable, pursuant to Section 2.3, for registration of transfer as this Indenture provides, (b) the Securities of each series may be surrendered for exchange as is provided in this Indenture and (c) notices and demands to or upon the Company in respect of the Securities of any series and Coupons or this Indenture may be served.
The Company will maintain one or more agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of such series are listed) where any Bearer Securities of each series and any Coupons may be presented for payment. No payment on any Bearer Security or Coupon will be made upon presentation thereof at an agency of the Company within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect, such payment can be made without adverse tax consequences to the Company. Notwithstanding the foregoing, if payment in Dollars at each agency maintained by the Company outside the United States for payment on such Bearer Securities and Coupons is illegal or effectively precluded by exchange controls or other similar restrictions, payments in Dollars of Bearer Securities of any series and any Coupons which are payable in Dollars may be made at an agency of the Company maintained in the Borough of Manhattan, in the City of New York.
The Company may also from time to time designate one or more additional agencies where the Securities of a series and any Coupons may be presented or surrendered for any and all purposes as provided herein, and may from time to time rescind any such designation, as the Company may deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or rescission will relieve the Company of its obligation to maintain the agencies provided for in the immediately preceding paragraphs. The Company will give to the Trustee prompt written notice of any such designation or recession and of the location of each such agency and of any change of location thereof. In case the Company fails to maintain any agency required by this Section 3.2 to be located in the Borough of Manhattan, in the City of New York, or fails to give such notice of the location or of any change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the Corporate Trust Office of the Trustee.
3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there will at all times be a Trustee with respect to each series of Securities hereunder.
3.4 PAYING AGENTS. The Company will cause each Paying Agent, if any, other than the Trustee, to execute and deliver to the Trustee an instrument in which such agent will agree with the Trustee, subject to the provisions of this Section 3.4 that such Paying Agent will:
(a) hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series, or the Coupons, or of the Trustee, until such sums will be paid to such Holders or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same will be due and payable; and
(c) at any time during the continuance of any Event of Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by it as such Paying Agent.
The Company will, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the Paying Agent a sum sufficient to pay such principal or interest so becoming due, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or any failure to take such action.
If the Company acts as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series or any Coupons a sum sufficient to pay such principal or interest so becoming due. The Company will promptly notify the Trustee of its action or any failure to take such action or the failure by any other obligor on such Securities to make any payment of the principal of or interest on such Securities when the same are due and payable.
Anything in this Section 3.4 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid, or by Company Order direct any Paying Agent to pay to the Trustee, all sums held in trust for any such series by the
Company or any Paying Agent, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section 3.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.4 is subject to the provisions of Sections 10.3 and 10.4.
3.5 WRITTEN STATEMENT TO TRUSTEE. The Company will deliver to the Trustee annually, commencing November 1, 1997, a certificate, from its principal executive officer, principal financial officer, Treasurer or principal accounting officer, stating whether or not to the best knowledge of the signer thereof the Company is in compliance (without regard to grace periods or notice requirements) with all conditions and covenants under this Indenture, and if the Company is not in compliance, specifying such noncompliance and the nature and status thereof of which such signer may have knowledge.
3.6 LUXEMBOURG PUBLICATIONS. Any party publishing any notice pursuant to Section 5.15, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5 in the Borough of Manhattan, the City of New York and London will also, to the extent that notice is required to be given to Holders of Securities of any series by applicable Luxembourg law or stock exchange regulation, as evidenced by an Officer's Certificate delivered to such party, make a similar publication in Luxembourg.
3.7 LIMITATION ON LIENS ON STOCK OR INDEBTEDNESS OF SIGNIFICANT SUBSIDIARIES. The Company will not, and will not permit any Significant Subsidiary to, create, assume, incur or suffer to exist any Lien upon any stock or indebtedness, whether owned on the date of this Indenture or hereafter acquired, of any Significant Subsidiary to secure any Obligation (other than the Securities) of the Company, any Subsidiary or any other Person without in any such case making effective provision whereby all of the Outstanding Securities shall be directly secured equally and ratably with such Obligation, excluding, however, from the operation of the foregoing provisions of this Section 3.7 any Lien upon stock or indebtedness of a Significant Subsidiary existing at the date of the Indenture, any Lien upon stock or indebtedness of any corporation existing at the time such corporation becomes a Significant Subsidiary or any Lien existing or created upon stock or indebtedness of a Significant Subsidiary at the time of acquisition of such stock or indebtedness and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any such Lien; PROVIDED that the principal amount of the Obligation secured thereby shall not exceed the principal amount of the Obligation so secured at the time of such extension, renewal or replacement; and PROVIDED, FURTHER, that such Lien shall be limited to all or such part of the stock or indebtedness which secured the Lien so extended, renewed or replaced.
3.8 EXISTENCE. Subject to Article IX, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that
the Company will not be required to preserve any such right or franchise if the Board of Directors determines that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.
3.9 WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Section 3.7 with respect to the Securities of any series if before or after the
time for such compliance, the Holders of at least a majority of the principal
amount of the Securities of such series Outstanding at the time waive compliance
with such covenant or condition either generally or in such instance, except to
the extent so expressly waived, and, until such waiver becomes effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition remains in full force and effect.
3.10 CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company will file with the Trustee promptly at the end of each calendar year a written notice specifying the amount of original issue discount (including daily rates and accrual records) accrued on Outstanding Securities as of the end of such year.
ARTICLE IV
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
4.1 COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF HOLDERS. If the Trustee is not the Security Registrar for the Securities of any series, the Company will furnish or cause to be furnished to the Trustee, with respect to the Registered Securities of each series, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Registered Securities of such series:
(a) semiannually not more than 15 days after each record date for the payment of interest, if any, as of such record date; and
(b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished.
4.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee will preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities (i) contained in the most recent list furnished to the Trustee for each series as provided in Section 4.1 and (ii) received by the Trustee for each series in the capacity of Security Registrar, if the Trustee is then acting in such capacity. The Trustee may destroy
any list furnished to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee will, within five business days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 4.2(a); or
(2) inform such applicants as to the approximate number of Holders of Securities whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 4.2(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee elects not to afford such applicants access to such information, the Trustee will, upon the written request of such applicants, mail to each Holder of Securities whose name and address appears in the information preserved at the time by the Trustee in accordance with Section 4.2(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision of payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee mails to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities or would be in violation of applicable law. Such written statement will specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, enters an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission will find, after notice and opportunity for hearing, that all the objections so sustained have been met and will enter an order so declaring, the Trustee will mail copies of such material to all such Holders of Securities with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee will be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar will be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 4.2(b), regardless of the source from which such information was derived, and that the Trustee will not be held accountable by reason of mailing any material pursuant to a request made under Section 4.2(b).
4.3 REPORTS BY THE COMPANY. (a) The Company will file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust
Indenture Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with roles and regulations prescribed from
time to time by the Commission, such of the supplementary and period
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a Security listed and registered on a national
securities exchange as may be prescribed from time to time in such rule and
regulation.
(b) The Company will file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, document and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such regulations.
(c) Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such does not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates).
4.4 REPORTS BY THE TRUSTEE. (a) Within 60 days after each May 15, beginning with May 15, 2001, the Trustee will mail to each Holder as and to the extent provided in the Trust Indenture Act Section 313(c) a brief report dated as of such May 15, if and to the extent required by Section 313(a) of the Trust Indenture Act. The Trustee also will comply with Section 313(b) of the Trust Indenture Act.
(b) Reports pursuant to this Section 4.4 will be mailed:
(1) to all Holders of Registered Securities, as the names and addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this Section, to each Holder of a Security whose name and address is preserved at the time by the Trustee, as provided in Section 4.2(a).
(c) A copy of each report at the time of its mailing to Holders will be filed with the Commission and each stock exchange (if any) on which the Securities of any series are listed. The Company agrees promptly to notify the Trustee whenever the Securities of any series become listed on any stock exchange and of any delisting thereof.
ARTICLE V
REMEDIES
5.1 EVENTS OF DEFAULT. "EVENT OF DEFAULT", wherever used herein with respect to any particular series of Securities, means any one of the following events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of that series or of any Coupon appertaining thereto, when such interest or Coupon becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any, on) any Security of that series when it becomes due and payable at its Maturity; or
(c) default in the deposit of any Sinking Fund Payment, when and as due by the terms of any Security of that series; or
(d) default in the performance, or breach, of any covenant or agreement of the Company in this Indenture with respect to any Security of that series (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied stating that such notice is a "Notice of Default" hereunder; or
(e) the Company pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against it in an involuntary case;
(3) consents to the appointment of a Custodian of it or for all or substantially all of its property; or
(4) makes a general assignment for the benefit of its creditors; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is for relief against the Company in an involuntary case;
(2) appoints a Custodian of the Company or for all or substantially all of its property; or
(3) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 days; or
(g) any other Event of Default provided with respect to Securities of that series.
The term "Bankruptcy Law" means, title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration, such principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay in the currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 2.3 for the Securities of such series):
(1) all overdue installments of interest, if any, on all Outstanding Securities of that series and any related Coupons;
(2) the principal of (and premium, if any, on) all Outstanding Securities of that series which has become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities;
(3) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates borne by or provided for in such Securities; and
(4) all amounts owed to the Trustee and each predecessor Trustee under Section 6.6; and
(b) all Events of Default with respect to Securities of that series, other than the nonpayment of the principal of (or premium, if any) or interest on Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any installment of interest on any Security of any series and any related Coupon when such interest becomes due and payable and such default continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity, then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of Securities of such series and Coupons, the whole amount
then due and payable on such Securities and Coupons for principal (and premium, if any) and interest, if any, with interest upon any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest, if any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover all amounts owed to the Trustee and each predecessor Trustee under Section 6.6.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related Coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities, such portion of the principal as may be provided for in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee and each predecessor Trustee, and their respective agents and counsel, except as a result of negligence or bad faith) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such series and Coupons to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or Coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or Coupon in any such proceeding.
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR COUPONS. All rights of action and claims under this Indenture or any of the Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee and each predecessor Trustee, and their respective agents and counsel, be for the ratable benefit of the Holders of the Securities and Coupons in respect of which such judgment has been recovered.
5.6 APPLICATION OF MONEY COLLECTED. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the Securities and Coupons for principal (and premium, if any) and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities and
Coupons for principal (and premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
5.7 LIMITATION ON SUITS. No Holder of any Security of any series or any related Coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and interest, if any, on such Security or payment of such Coupon on the respective due dates expressed in such Security or Coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
5.9 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder of a Security or Coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders of Securities and Coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph of Section 2.9, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or Coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or of any Holder of any Security or Coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or Coupons, as the case may be.
5.12 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in principal amount of the Outstanding Securities of series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series; PROVIDED that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.
5.13 WAIVER OF PAST DEFAULTS. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series and any related Coupons waive any past default hereunder with respect to such series and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or any related Coupons; or
(b) in respect of a covenant or provision hereof which under Article VIII cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
5.14 WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension of law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
5.15 NOTICE OF DEFAULTS. Within 90 days after the occurrence of any Defaults hereunder with respect to the Securities of any series, the Trustee shall transmit to the Holders of the Securities of such series notice of such Default hereunder known to the Trustee, unless such Default has been cured or waived; PROVIDED that, except in the case of a Default in the payment of the principal of (or premium, if any, on) or interest on any of the Securities of such series, or the payment of any sinking fund installment with respect to Securities of such series, the Trustee will be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series. Notice pursuant to this Section shall be given, (a) if any Bearer Securities of such series are then Outstanding, to the Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of Manhattan, in the City of New York, and at least once in an Authorized Newspaper in London (and if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg) and (b) to all Holders of Outstanding Registered Securities of such series as the names and addresses of such Holders appear upon the registry books of the Company, and to other Holders
of Securities of such series as have filed their names and addresses with the Trustee within two year preceding the giving of such notice.
5.16 UNDERTAKING FOR COSTS. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect of the Securities of any series, a court may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys' fees, against any party litigant (other than the Trustee) in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant. This Section 5.16 does not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series or to any suit instituted by any Holder referred to in Section 5.8.
ARTICLE VI
CONCERNING THE TRUSTEE
6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE, PRIOR TO DEFAULT. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of such series, and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations will be read into this Indenture against the Trustee. If an Event of Default with respect to the Securities of a series has occurred which has not been cured or waived, the Trustee will exercise, with respect to such series of Securities, the rights and powers that this Indenture vests in it with the degree of care and skill a prudent man would exercise or use under the circumstances in conducting his own affairs.
No provision of this Indenture will be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred; in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee will be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;
(b) the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved that the Trustee was negligent or acted in bad faith in ascertaining the pertinent facts; and
(c) the Trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 5.12 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture will require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the Trust Indenture Act.
6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to the Trust Indenture Act, and except as otherwise provided in Section 6.1:
(a) the Trustee may rely and will be protected in acting or refraining from acting upon any resolution, Officer's Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, Coupon, security or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein will be sufficiently evidenced by an Officer's Certificate or Company Order (unless other evidence in respect thereof be herein specifically prescribed), and any resolution of the Board of Directors may be sufficiently evidenced by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) whenever in the administration of this Indenture the Trustee deems it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and any written advice or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon;
(e) the Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders of Securities of any series pursuant to the provisions of this Indenture, unless such Holders will have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby;
(f) the Trustee will not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred, the Trustee will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, Coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding; PROVIDED that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition of proceeding; the reasonable expenses of every such investigation will be paid by the Company or, if paid by the Trustee or any predecessor Trustee, will be repaid by the Company upon demand; and
(h) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee will not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder.
6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, and in any Coupons will be taken as the statements of the Company, and neither the Trustee for any series, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities or Coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder, and that the statements made by it or to be
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate. Neither the Trustee for any series, any Authenticating Agent, nor the Trustee will be accountable for the use or application by the Company of any of the Securities or the proceeds thereof.
6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS; ETC. The Trustee, any Security Registrar, any Paying Agent or any agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would have if it were not the Trustee or such agent and subject to the provisions of the Trust Indenture Act relating to conflicts of interest and preferential claims and may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee or such agent.
6.5 MONEYS HELD IN TRUST. Subject to the provisions of Section 10.4 hereof, all moneys received by the Trustee or any Paying Agent will, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. The Trustee will invest such moneys in accordance with the Company's written instructions. Neither the Trustee nor any agent of the Company or the Trustee will be under any liability for interest on any moneys received by it hereunder. So long as no Event of Default has occurred and is continuing, all interest allowed in any such moneys will be paid from time to time to the Company upon a Company Order.
6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM. The Company will pay in Dollars to the Trustee from time to time, such compensation as the Company and the Trustee from time to time agree in writing for all services rendered by it hereunder (which will not be limited by any provision of law in regard to the compensation of a trustee of an express trust). Except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel, attorneys, agents and other persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence, willful misconduct, or bad faith. The Company also will indemnify in Dollars the Trustee and each predecessor Trustee for, and to hold it harmless against, any and all loss, liability or expense, including taxes (other than taxes based upon or measured by the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the reasonable costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for reasonable expenses, disbursements and advances will constitute additional indebtedness hereunder and will survive the satisfaction and discharge of this Indenture. As security for the performance of the obligations of the Company under this Section 6.6, the Trustee for any series of Securities will have a prior claim to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of or interest on particular Securities or Coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 subsection (e) or
(f), the expenses (including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, WHERE NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture the Trustee deems it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer's Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, will be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE. As of the date hereof, the Company has no outstanding debt securities issued pursuant to an indenture of which the Trustee is the Trustee.
6.9 CORPORATE TRUSTEE REQUIRED; PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. There will at all times be a Trustee for each series of Securities hereunder which will at all times be either (i) a corporation organized and doing business under the laws of the United States, any state thereof or the District of Columbia authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal, state or District of Columbia authority or (ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act to a rule, regulation or order of the Commission authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees, in either case having a combined capital and surplus of at least $50,000,000. Such corporation will have its principal place of business or an agency in the Borough of Manhattan, the City of New York, if there is such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation pub-
lishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for purposes of this Section, the combined capital and surplus of such corporation are deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may, but need not, appoint a separate Trustee for any one or more series of Securities. In case at any time the Trustee ceases to be eligible in accordance with the provisions of this Section, the Trustee will resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Company and (i) if any Bearer
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Bearer
Securities of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with
the Trustee within two years preceding the giving of such notice at such
addresses as were so furnished to the Trustee and (iii) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they appear on the Security Register.
Upon receiving such notice of resignation, the Company will promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument will be delivered to the resigning Trustee and one copy
to the successor Trustee or Trustees. If no successor Trustee has been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee, or any Holder who has been a bona fide Holder of a Security of the
applicable series for at least six months may, subject to the provisions of
Section 5.16, on behalf of such Holder and all others similarly situated,
petition any such court for the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(b) If at any time:
(1) the Trustee fails to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months; or
(2) the Trustee ceases to be eligible in accordance with the provisions of Section 6.9 and Section 310(a) of the Trust Indenture Act and fails to resign after written request therefor by the Company or by any Holder; or
(3) the Trustee becomes incapable of acting with respect to any series of Securities, or is adjudged bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property is appointed, or any public officer takes charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor Trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Company, one copy of which instrument will be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
such Holder and all others similarly situated, may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(c) The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of a particular series may at any time remove the Trustee for such series and only such series by so notifying the Trustee and the Company in accordance with Section 7.1 and may appoint a successor Trustee.
(d) No resignation or removal of the Trustee of any series and
no appointment of a successor Trustee pursuant to any of the provisions of this
Section 6.10 becomes effective until the acceptance of appointment by the
successor Trustee as provided in Section 6.11.
(e) The Company will give notice of each removal of the Trustee (i) if any Bearer Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized Newspaper in the City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Bearer Securities of a series affected are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee will make such information available to the Company for such purpose) and (iii) to the Holders of Registered Securities of each series affected, by
mailing such notice to such Holders at their addresses as they will appear on the registry books.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor Trustee appointed as provided in Section 6.10 will execute and deliver to the Company and its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee with respect to all or any applicable series will become effective and such successor Trustee, without any further act, deed or conveyance, will become vested with all rights, powers, duties and obligations of its predecessor hereunder with respect to such series, with like effect as if originally named as Trustee for such series hereunder; however, on the written request of the Company or of the successor Trustee, upon payment of its charges then unpaid, the retiring Trustee will, subject to Section 10.4, pay over to the successor Trustee all moneys at the time held by it hereunder and will execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations. Upon request of any such successor Trustee, the Company will execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act will, nevertheless, retain a prior claim upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor Trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee with respect to the Securities of such series will execute and deliver an indenture supplemental hereto which (i) will contain such provisions as are deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring will continue to be vested in the predecessor Trustee and (ii) will add to or change any of the provisions of this Indenture as will be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture will constitute such Trustees co-trustees of the same trust and that each such Trustee will be Trustee of a trust or trusts under separate indentures.
No successor Trustee with respect to any series of Securities will accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor Trustee is qualified under Section 310(b) of the Trustee Indenture Act and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided in this Section 6.11, the Company will give notice thereof (a) if any Bearer Securities of a series affected are then Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, the City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), (b) if any Bearer Securities of a series affected are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing such notice to such Holders at such addresses as were so furnished to the Trustee (and the Trustee will make such information available to the Company for such purpose) and (c) to the Holders of Registered Securities of each series affected, by mailing such notice to such Holders at their addresses as they appear on the Security Register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.10. If the Company fails to give such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee will cause such notice to be given at the expense of the Company.
Upon request of any such successor Trustee, the Company will execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in this Section 6.11.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee is a party, or any corporation
succeeding to the corporate trust business of the Trustee, will be the successor
of the Trustee hereunder; PROVIDED, that such corporation qualifies under
Section 310(b) of the Trust Indenture Act and is eligible under the provisions
of Section 6.9, without the execution of filing of any paper or any further act
on the part of any of the parties hereto.
In case at the time such successor to the Trustee succeeds to the trusts created by this Indenture any of the Securities of any series have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series have not been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate will have the full force which it has anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee will have; PROVIDED, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee will apply only to its successor or successors by merger, conversion or consolidation.
6.13 APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Company an authenticating agent (the
"AUTHENTICATING AGENT") which will be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such series authenticated by such Authenticating Agent will be entitled to the benefits of this Indenture and will be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee's Certificate of Authentication, such reference will be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent will at all times be a corporation organized and doing business under the laws of the United States or of any state thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 (determined as provided in Section 6.9 with respect to the Trustee) and subject to supervision or examination by federal, state or District of Columbia authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for purposes of this Section, the combined capital and surplus of such corporation are deemed to be its combined capital and surplus as set forth in its most recent report or condition so published. If at any time an Authenticating Agent for any series of Securities ceases to be eligible in accordance with the provisions of this Section, such Authenticating Agent will resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent is a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, will continue to be the Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it ceases to be eligible will, resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent ceases to be eligible in accordance with the provisions of this Section 6.13 with respect to one or more series of Securities, the Trustee will upon receipt of a Company Order appoint a successor Authenticating Agent and the Company will provide notice of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder will become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent. The Company agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series will have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 will be applicable to any Authenticating Agent.
6.14 COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees to comply with all United States federal income tax information reporting and withholding requirements applicable to it with respect to payments or premium (if any), and interest on the Securities whether acting as Trustee, Security Registrar, Paying Agent or otherwise with respect to the Securities.
6.15 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The Trustee will be subject to the provisions of Section 311 of the Trust Indenture Act.
ARTICLE VII
CONCERNING THE HOLDERS
7.1 EVIDENCE OF ACTION TAKEN BY HOLDERS. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Holders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action will become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent will be sufficient for any purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Article.
7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDINGS OF SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument by a Holder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit will also constitute sufficient proof of the authority of the Person executing the same. The fact of the holding by any Holder of a Bearer Security of any series, and the identifying
number of such Bearer Security and the date of his holding the same, may be proved by the production of such Bearer Security or by a certificate executed by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate is deemed by the Trustee to be satisfactory. Each such certificate will be dated and will state that on the date thereof a Bearer Security of such series bearing a specified identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the Person named in such certificate. Any such certificate may be issued in respect of one or more Bearer Securities of one or more series specified therein. The Trustee for such Securities and the Company may assume that the ownership of any Bearer Security by the Person named in any such certificate of any Bearer Securities will continue for a period of one year from the date of such certificate unless at the time of any determination of such holding (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Securities is produced, or (2) the Bearer Security specified in such certificate is produced by some other Person, or (3) the Bearer Security specified in such certificate is no longer Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the execution of any such instrument and the amount and numbers of Bearer Securities of any series held by the Person so executing such instrument and the amount and numbers of any Bearer Security or Securities for such series may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee for such series or in any other manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership, the principal amount and the serial numbers of such Registered Securities will be proved by the Security Register or by a certificate of the Security Registrar.
7.3 HOLDERS TO BE TREATED AS OWNERS. Prior to due presentment for registration of transfer of any Registered Security, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Person in whose name any Registered Security is registered upon the Security Register for such series as the absolute owner of such Registered Security (whether or not such Registered Security is overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Registered Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee will be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, will be valid, and, to the extent of the sum or sums so paid effectual to satisfy and discharge the liability for moneys payable upon any such Registered Security. The Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer Security and the Holder of any Coupon as the absolute owner of such Bearer Security or Coupon (whether or not such Bearer Security or Coupon is overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Company, the Trustee, nor any agent of the Company or the Trustee will be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order, will be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Bearer Security or Coupon.
7.4 SECURITIES OWNED BY COMPANY DEEMED NOT OUTSTANDING. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct common control with the Company or any other obligor on the Securities with respect to which such determination is being made, will be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee will be protected in relying on any such direction, consent or waiver only Securities which the Trustee knows are so owned will be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee that the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel will be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Company will furnish to the Trustee promptly an Officer's Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of any of the persons described above; and, subject to Sections 6.1 and 6.2, the Trustee will be entitled to accept such Officer's Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security will be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such
action will be conclusively binding upon the Company, the Trustee and the Holders of all the Securities affected by such action.
7.6 RECORD DATE FOR CONSENTS AND WAIVERS. The Company may,
but will not be obligated to, direct the Trustee to establish a record date for
the purpose of determining the Persons entitled to (i) waive any past Default
with respect to the Securities of any series in accordance with Section 5.13,
(ii) consent to any supplemental indenture in accordance with Section 8.2, (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver) or (iv) vote on or
consent to any action referred to in Section 7.1. If a record date is fixed, the
Holders on such record date, or their duly designated proxies, are entitled to
waive any such past Default, consent to any such supplemental indenture, waive
compliance with any such term, condition or provision or vote on or consent to
any such action, whether or not such Holder remains a Holder after such record
date; PROVIDED, HOWEVER, that unless such waiver or consent is obtained from the
Holders, or duly designated proxies, of the requisite principal amount of
Outstanding Securities of such series prior to the date which is the 90th day
after such record date, any such waiver or consent previously given is
automatically and without further action by any Holder cancelled and of no
further effect.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a Board Resolution (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property or assets to the Trustee as security for the Securities of one or more series;
(b) to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed;
(c) to evidence the succession of another entity to the Company, or successive successions, and the assumption by the successor of the covenants, agreements and obligations of the Company pursuant to Article IX;
(d) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company considers to be for the protection of the Holders of Securities or Coupons (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series), and to make the occurrence, or the occurrence and continuance, of a Default in any such additional covenants, restrictions, conditions or provisions an Event of Default (and, if such Event of Default is applicable to less than all series of Securities specifying the series to which such Event of Default is applicable) permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; PROVIDED that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular grace period after Default (which period may be shorter or longer than that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other provisions as the Company may deem necessary or desirable, PROVIDED that no such action adversely affects the interests of the Holders of the Securities or Coupons taken as a whole;
(f) to modify or amend this Indenture in such a manner as to permit the qualification of this Indenture or any Indenture supplemental hereto under the Trust Indenture Act as then in effect, except that nothing herein contained permits or authorizes the inclusion in any Indenture supplemental hereto of the provisions referred to in Section 316(a)(2) of the Trust Indenture Act;
(g) to add guarantees with respect to the Securities or to secure the Securities;
(h) to make any change that does not adversely affect the rights of the Holders of the Securities taken as a whole;
(i) to establish the forms or terms of Securities of any series or Coupons as permitted by Sections 2.1 and 2.3;
(j) to otherwise change or eliminate any of the provisions of this Indenture; PROVIDED, HOWEVER, that any such change or elimination becomes effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(k) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as is necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(l) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal on Registered Securities or of principal or any interest on Bearer Securities, to permit Registered Securities to be exchanged for Bearer Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations, or to permit the issuance of uncertificated Securities and to make all appropriate changes for such purposes; PROVIDED any such action does not adversely affect the interests of the Holders of Securities of any series or any Coupons in any material respect; or
(m) to add to or change any of the provisions of this Indenture as are necessary or desirable to establish that Bearer Securities are issued under arrangements reasonably designed to ensure that they are sold or resold in connection with their original issuance only to a person who is a Non-U.S. Person or who is a U.S. Person that is a financial institution purchasing for its own account or for the account of a customer and that agrees to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of the Code and the regulations thereunder or any successor provisions thereto (including without limitation the procedures and other requirements necessary to satisfy the conditions set forth in Section 163(f)(2)(B) of the Code), and any other requirements that must be complied with in order to avoid the disallowance of an interest deduction by the Company with respect to interest paid on Bearer Securities and any Coupons, the imposition of an excise tax on the Company with respect to the Bearer Securities and any Coupons or the disallowance from exemption from withholding tax on interest paid on the Bearer Securities and any Coupons.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee is not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 8.1 may be executed without the consent of the Holders of any of
the Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. Unless otherwise set forth in Section 2.3, with the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities and any Coupons of each series affected by such supplemental indenture, the Company, when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series and any Coupons; PROVIDED that no such supplemental indenture:
(a) changes the Stated Maturity of the principal of or any
installment of interest on any Security, or reduces the principal amount thereof
or the rate of interest thereon payable upon the redemption thereof, or changes
the Stated Maturity of or reduces the amount of any payment to be made with
respect to any Coupons or changes the currency in which the principal of or
interest on such Security is denominated or payable, or reduces the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.2, or changes any Place of Payment where any Security or interest
thereon is payable, or impairs the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or reduces the premium payable
upon the redemption of any Security or changes the time at which any Security
may or will be redeemed in accordance with Article XII;
(b) reduces the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
(c) modifies any of the provisions of this Section 8.2,
Section 5.13 or Section 3.10, except to increase any such percentage or to
provide with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant to
Section 2.3 without the consent of any Holder) or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby; PROVIDED, HOWEVER,
that this subsection (c) is not deemed to require the consent of any Holder with
respect to changes in the references to "THE TRUSTEE" and concomitant changes in
this Section 8.2 and Section 3.10, or the deletion of this proviso, in
accordance with the requirements of the second paragraphs of Section 6.11 and
Section 8.1(k).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities and Coupons of such series, with respect to such covenant provision, is deemed not to affect the rights under this Indenture of the Holders of Securities and Coupons of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order) certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Securities as aforesaid and other documents, if any, required by Section 7.1, the Trustee will join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such supplemental indenture.
It will not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed supplemental indenture, but it will be sufficient if such consent will approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 8.2, the Trustee will give notice thereof (i) to the Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they will appear on the Security register, (ii) if any Bearer Securities of a series affected thereby are then Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, by mailing a notice thereof by first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if any Bearer Securities of a series affected thereby are then Outstanding, to all Holders thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough of Manhattan, the City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), and in each case such notice will set forth in general terms the substance of such supplemental indenture. Failure of the Company to give such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such supplemental indenture.
8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture will be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Securities of each series affected thereby will thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture will be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE; EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting, the additional trusts created by, any supplemental indenture permitted by this Article or the modifications hereby of the trusts created by this Indenture, the Trustee, subject to the provisions of Sections 6.1 and 6.2, will be entitled to receive, and will be fully protected in relying upon, an Officer's Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article VIII complies with the applicable provisions of this Indenture. The Trustee for any series of Securities may, but will not be obligated to, enter into any such supplemental indenture which affects such Trustee's own rights, liabilities, duties or immunities under this Indenture or otherwise.
8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Holders. If the Company or the Trustee will so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers, in which the Company or its successor or successors will be a party or parties, or shall prevent any sale or conveyance of all or substantially all the properties and assets of the Company and its Subsidiaries as an entirety to any other Person (whether or not affiliated with the Company) authorized to acquire and operate the same; PROVIDED, HOWEVER, that immediately after giving effect to such transaction, no Default or Event of Default with respect to any series of Securities will have occurred and be continuing; and PROVIDED, further, that upon any such consolidation, merger, sale or conveyance, other than a consolidation or
merger in which the Company is the continuing corporation, the due and punctual payment of the principal or interest on all of the Securities and Coupons, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company, will be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the corporation (if other than the Company) formed by such consolidation, or into which the Company has been merged, or which will have acquired such property; and PROVIDED, FURTHER, that such corporation will be incorporated under the laws of the United States, any state thereof or the District of Columbia. Notwithstanding the first proviso in this paragraph, the Company may merge or consolidate any Restricted Subsidiary into or with the Company or any other direct or indirect wholly-owned Restricted Subsidiary of the Company.
9.2 SUCCESSOR COMPANY SUBSTITUTED. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of or interest on all of the Securities and Coupons and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such successor corporation will succeed to and be substituted for the Company, with the same effect as if it had been named herein as the Company. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company prior to such succession any or all of the Securities issuable hereunder, together with any Coupons which theretofore have not been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of the Company and subject to all the terms, conditions, and limitations in this Indenture prescribed, the Trustee will authenticate and will deliver any Securities, together with any Coupons which previously have been signed and delivered by the officers of the Company to the Trustee, and any Securities, together with any Coupons which such successor corporation thereafter will cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued, together with any Coupons, will in all respects have the same legal rank and benefit under this Indenture as the Securities and Coupons theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities and Coupons had been issued at the date of the execution hereof.
In the event of any such consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way of lease) the Company or any successor corporation will be discharged from all obligations and covenants under this Indenture and the Securities and Coupons and may be liquidated and dissolved.
9.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared in accordance with Section 11.5, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any such liquidation or dissolution, complies with the applicable provisions of this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) If at any time (i) the Company will have paid or caused to
be paid the principal of and interest on all of the Securities of any series
Outstanding hereunder and all Coupons (other than Securities of such series and
Coupons which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.9) as and when the same have become due and
payable, or (ii) the Company will have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated and all Coupons (other
than any Securities of such series and Coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.9) or
(iii) in the case of any series of Securities where the exact amount (including
the currency of payment) of principal of and interest due on such Securities can
be determined at the time of making the deposit referred to in clause (B) below,
(A) all the Securities of such series and all Coupons not theretofore delivered
to the Trustee for cancellation have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (B) the Company will have irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for the purpose of making the following payments, specifically pledged
as security for and dedicated solely to the benefit of the Holders of the
Securities of such series and Coupons, (x) cash in an amount (other than moneys
repaid by the Trustee or any paying agent to the Company in accordance with
Section 10.4) or (y) in the case of any series of Securities the payments on
which may be made only in Dollars, direct obligations of the United States,
backed by its full faith and credit ("U.S. GOVERNMENT Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash in an amount or (z) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal and interest on all Securities of such series and all Coupons on
each date that such principal or interest is due and payable (whether at
maturity or upon redemption (through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of the Holder); and if, in
any such case, the
Company will also pay or cause to be paid all other sums payable hereunder by the Company, then all of the Securities of such series and any Coupons will be deemed paid and discharged and the provisions of this Indenture with respect to such Securities and such Coupons cease to be of further effect (except as to (1) rights of registration of transfer, exchange of Securities of such series and any Coupons and the Company's right of optional redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (3) rights of Holders of Securities and Coupons to receive payments of principal thereof and interest thereon, upon the stated due dates therefor (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder, but not upon acceleration), (4) the rights, obligations, duties and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series and any Coupons as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Company under Section 3.2 and (D) the Trustee, on demand of the Company accompanied by an Officer's Certificate and an Opinion of Counsel which complies with Section 11.5 (stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with) and at the cost and expense of the Company, will execute proper instruments acknowledging the same. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
(b) In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities where the exact amounts (including the currency of payment) of principal of and interest due on such Securities can be determined at the time of making the deposit referred to in clause (A) below, on the 91st day after the date of such deposit all the Securities of such a series and any Coupons will be deemed paid and discharged and the provisions of this Indenture with respect to the Securities and Coupons cease to be of further effect (except, as to (i) rights of registration of transfer and exchange of Securities of such series and any Coupons and the Company's right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons to receive payments of principal thereof and interest thereon, upon the stated due dates therefor (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder, but not upon acceleration), (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) the rights of the Holders of Securities of such series and Coupons as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vi) the obligations of the Company under Section 3.2) and the Trustee, at the expense of the Company, will, at the Company's request, execute proper instruments acknowledging the same, if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of such series and Coupons, (A) cash in an amount, (B) in the case of any series of Securities the payments on which may be made only in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash in an amount or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series and any Coupons on each date that such principal or interest is due and payable (whether at maturity or upon mandatory redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder);
(2) no Default or Event of Default has occurred and
been continuing on the date of such deposit or, insofar as Sections 5.1(e) and
(f) are concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition will not be
deemed satisfied until the expiration of such period);
(3) such deposit and discharge will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(4) such deposit and discharge will not cause the Trustee to have a conflicting interest as defined in Section 310(b) of the Trust Indenture Act;
(5) such deposit and discharge will not cause any Securities then listed on any registered national securities exchange to be delisted;
(6) the Company has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and such opinion will confirm that, the Holders of the Securities of such series and any Coupons will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and discharge had not occurred; and
(7) the Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the deposit and discharge contemplated by this provision have been complied with.
(c) The Company will be released from its obligations under Sections 3.7 and 9.1 and any other covenants specified pursuant to Section 2.3 with respect to the Securities of any series and any Coupons on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of the applicable series, the Company may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in such sections or any such covenant, whether directly or indirectly by reason of any reference elsewhere herein to such sections or any such covenant or by reason of any reference in such sections or any such covenant to any other provision herein or in any other document and such omission to comply will not constitute an Event of Default under Section 5.1, but the remainder of this Indenture and such Securities and Coupons will be unaffected thereby. The following will be the conditions to application of this subsection (c) of this Section 10.1:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and any Coupons, (A) cash in an amount, (B) in the case of any series of Securities the payments on which may be made only in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash in an amount or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series and any Coupons on each date that such principal or interest is due and payable (whether at maturity or upon redemption (through operation of a mandatory sinking fund or otherwise) other than any redemption at the option of the Holder);
(2) no Default or Event of Default has occurred and is continuing on the date of such deposit or, insofar as Sections 5.1(e) and (f) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition will not be deemed satisfied until the expiration of such period);
(3) such covenant defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Company is a party or by which it is bound;
(4) such covenant defeasance will not cause the Trustee to have a conflicting interest as defined in Section 310(b) of the Trust Indenture Act;
(5) such covenant defeasance will not cause any Securities then listed on any registered national securities exchange to be delisted;
(6) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities of such series and any Coupons will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and
(7) the Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the covenant defeasance contemplated by this subsection (c) have been complied with.
10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES. Subject to Section 10.4, all moneys and Securities deposited with the Trustee (or other trustee) pursuant to Section 10.1 will be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities of such series and of any Coupons for the payment or redemption of which such moneys or Securities have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such moneys or Securities need not be segregated from other funds except to the extent required by law.
10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such series of Securities will, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent will be released from all further liability with respect to such moneys.
10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR ONE YEAR. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or interest on any Security of any series or any Coupons and not applied but remaining unclaimed for one year after the date upon which such principal or interest will have become due and payable, will, upon the written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee for such series or such Paying Agent or (if then held by the Company) will be discharged from such trust, and the Holder of the Securities of such series and of any Coupons will, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such moneys will thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required to make any such repayment with respect to moneys deposited with it for any payment (a) in respect of Registered Securities of any series, will at the expense of the Company, mail by first-class mail to Holders of such Securities at their addresses as they will
appear on the Security Register, and (b) in respect of Bearer Securities of any series, will at the expense of the Company cause to be published once, in an Authorized Newspaper in the Borough of Manhattan, the City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.6, at least once in an Authorized Newspaper in Luxembourg), notice that such moneys remain and that, after a date specified therein, which will not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
10.5 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
will pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.11 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, will be had against any incorporator, as such or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities and Coupons by the Holders thereof and as part of the consideration for the issuance of the Securities and Coupons.
11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the
Securities or in any Coupons, express or implied, will give or be construed to
give to any Person, other than the parties hereto and their successors and the
Holders of the Securities and Coupons, any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Securities and Coupons.
11.3 SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Company will bind its successors and assigns, whether so expressed or not.
11.4 NOTICES AND DEMANDS ON COMPANY, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities and Coupons to or on the Company may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Company is filed by the Company with the Trustee) to Ecolab Inc., Ecolab Center, 370 N. Wabasha Street, St. Paul, Minnesota 51102-1390, Attention: General Counsel. Any notice, direction, request or demand by the Company or any Holder of Securities and Coupons to or upon the Trustee will be deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Company) to Bank One, National Association, 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, Attention: Benita Pointer.
Where this Indenture provides for notice to Holders of Registered Securities, such notice will be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security Register. Where this Indenture provides for notice to Holders of Bearer Securities who have filed their names and addresses within two years preceding the giving of such notice, such notice will be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in such filing. Notice to other Bearer Securities will be by publication as provided in Section 6.10(a)(i). In any case where notice to such Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder will affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver will be the equivalent of such notice. Waivers of notice by Holders will be filed with the Trustee, but such filing will not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it is impracticable to mail notice to the Company when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as is reasonably satisfactory to the Trustee is deemed to be a sufficient giving of such notice.
11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL, STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company will furnish to the Trustee an Officer's Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture will include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which such officer's certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters where the information is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers of the Company, unless such officer knows that the certificate, statement or opinions or representations with respect to the matters upon which such officer's certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which such officer's or counsel's certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee will contain a statement that such firm is independent.
11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date of maturity of interest on or principal of the Securities of any series or Coupons or the date fixed for redemption or repayment of any such Security or Coupon is not a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest will accrue for the period after such date.
11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT. If and to the extent that any provision of this Indenture limits, qualifies as conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an "INCORPORATED PROVISION"), such incorporated provisions will control.
11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security and any Coupon will be deemed to be a contract under the laws of the State of New York, and for all purposes will be construed in accordance with the laws of such State, except as may otherwise by required by mandatory provisions of law.
11.9 COUNTERPARTS. This Indenture may be executed in any number of counterparts, each of which will be an original; but such counterparts will together constitute but one and the same instrument.
11.10 EFFECT OF HEADINGS. The Article and Section headings herein and the Table of Contents are for convenience only and do not affect the construction hereof.
11.11 SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified in an Officer's Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such series which will be deemed to be Outstanding for the purpose of taking such action will be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate means the noon Dollar buying rate in New York City for cable transfers of that currency published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee will use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in the City of New York or in the country of issue of the currency in question, or such other quotations as the Trustee will deem appropriate. The provisions of this paragraph will apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph will be in its sole discretion and will, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Holders.
11.12 JUDGMENT CURRENCY. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used will be the rate at which
in accordance with normal banking procedures the Trustee could purchase in the
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment in entered, unless such day is not a New York
Banking Day, then, the extent permitted by applicable law, the rate of exchange
used will be the rate at which in accordance with normal banking procedures the
Trustee could purchase in the City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) will not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery results in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) will be enforceable as
an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt will fall
short of the full amount of the Required Currency so expressed to be payable and
(iii) will not be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "NEW YORK BANKING DAY"
means any day except a Saturday, Sunday or a legal holiday in the City of New
York or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
11.13 SEPARABILITY CLAUSE. In case any provision in this Indenture or the Securities is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions are not in any way be affected or impaired thereby.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE. The provisions of this Article will be applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series, except as otherwise specified, as contemplated by Section 2.3, for Securities of such series.
12.2 NOTICE OF REDEMPTION, PARTIAL REDEMPTIONS. Notice of redemption to the Holders of Registered Securities of any series to be redeemed as a whole or in part at the option of the Company will be given by mailing notice of such redemption by first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders at their last addresses as they appear upon the Security Register. Notice of redemption to the Holders of Bearer Securities to be redeemed as a whole or in part, who have filed their names and addresses with the Trustee within two years preceding the giving of such notice, will be given by mailing notice of such redemption, by first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such notices given by the Company, the Trustee will make such information available to the Company for such purpose). Notice of redemption to all other Holders of Bearer Securities of any series to be redeemed as a whole or in part will be published in an Authorized Newspaper in the Borough of Manhattan, the City of New York, and in an Authorized Newspaper in London (and, if required by Section 3.6, in an Authorized Newspaper in Luxembourg), in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption. Any notice which is mailed in the manner herein provided will be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part, will not affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder will specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP number of the Securities to be redeemed, the date fixed for redemption, the redemption price, the place or place of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities with Coupons, of all Coupons maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after that date interest thereon or on the portions thereof to be redeemed cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption will state the portion of the principal amount thereof to be redeemed and will state that on and after the date fixed for redemption, upon surrender of such Security, a new Security of the same series and tenor and in an aggregate principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Company will be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the Redemption Date specified in the notice of redemption given as provided in this Section, the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.4) an amount of money sufficient to redeem on the Redemption Date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If all of the Outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least 40 days prior to the date fixed for redemption (or such shorter period as is be acceptable to the Trustee) an Officer's Certificate stating that all such Securities are to be redeemed. If less than all Outstanding Securities of any series are to be redeemed, the Company will deliver to the Trustee at least 45 days prior to the date fixed for redemption (or such shorter period as is be acceptable to the Trustee) an Officer's Certificate stating the aggregate principal amount of Securities of such series to be redeemed. In case of a redemption at the election of the Company that is subject to any restriction on such redemption, the Company will deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officer's Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee will select, in such manner as it deems appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples of the minimum authorized denomination for Securities of such series. The Trustee will promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series will relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice will become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after such date (unless the Company defaults in the payment of such Securities at the redemption price, together with interest accrued to such date) interest on the Securities or portions of Securities so called for redemption will cease to accrue, and any unmatured Coupons will be void, and, except as provided in Sections 6.5 and 10.4, such Securities will cease from and after the close of business on the date fixed for redemption to be entitled to any benefit under this Indenture, and the Holders
thereof will have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a Place of Payment specified in the notice, together with all Coupons, if any, maturing after the date fixed for redemption, such Securities or the specified portions thereof will be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; PROVIDED that interest becoming due on or prior to the date fixed for redemption is payable, in the case of Securities with any Coupons, to the Holders of the Coupons for such interest upon surrender thereof and, in the case of Registered Securities, to the Holders of such Registered Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption is not so paid upon surrender thereof for redemption, the principal will, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
If any Security with any Coupon(s) is surrendered for redemption and is not accompanied by all Coupons maturing after the date fixed for redemption, the surrender of such missing Coupon(s) may be waived by the Company and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only, the Company will execute and the Trustee will authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a replacement Security of like series and tenor (with any unmatured Coupons attached), in authorized denominations and in an aggregate principal amount equal to the unredeemed portion of the Security so presented.
12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION. Securities will be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officer's Certificate delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any Sinking Fund Payment provided for by the terms of the Securities of any series is herein referred to as a "MANDATORY SINKING FUND PAYMENT," and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an "OPTIONAL SINKING FUND Pay-
ment." The date on which a Sinking Fund Payment is to be made is herein referred
to as the "SINKING FUND PAYMENT DATE."
In lieu of making all or any part of any Mandatory Sinking Fund Payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except through a Mandatory Sinking Fund Payment) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for Optional Sinking Fund Payments (not previously so credited) made pursuant to this Section 12.5 or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company through any Optional Sinking Fund Payment. The Trustee will receive or credit Securities so delivered or credited at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each Sinking Fund Payment Date for any series, or such shorter period acceptable to the Trustee, the Company will deliver to the Trustee an Officer's Certificate (which need not contain the statements required by Section 11.5) (a) specifying the portion of the Mandatory Sinking Fund Payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such credit, (b) stating that none of the Securities of such series to be so credited has previously been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Company intends to exercise its right to make an Optional Sinking Fund Payment with respect to such series and, if so, specifying the amount of such Optional Sinking Fund Payment which the Company intends to pay on or before the next succeeding Sinking Fund Payment Date. Any Securities of such series to be credited and required to be delivered to the Trustee for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee will be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officer's Certificate will be irrevocable and upon its receipt by the Trustee, the Company will become unconditionally obligated to make all the cash payments or delivery of Securities therein referred to, if any, on or before the next succeeding Sinking Fund Payment Date. Failure of the Company, on or before any such 60th day, to deliver such Officer's Certificate and Securities (subject to the parenthetical clause in the second preceding sentence) specified in this paragraph, if any, will not constitute a default but will constitute, on and as of such date, the irrevocable election of the Company (i) that the Mandatory Sinking Fund Payment for such series due on the next succeeding Sinking Fund Payment Date will be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company will make no Optional Sinking Fund Payment with respect to such series as provided in this Section 12.5.
If the Sinking Fund Payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding Sinking Fund Payment Date
plus any unused balance of any preceding Sinking Fund Payments made in cash
exceeds $50,000 (or the equivalent thereof in any Foreign Currency) or a lesser
sum in Dollars (or the equivalent thereof in any Foreign Currency) if the
Company so requests with respect to the Securities of any series, such cash will
be applied on the next succeeding Sinking Fund Payment Date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount is $50,000 (or
the equivalent thereof in any Foreign Currency) or less and the Company makes no
such request, then it will be carried over until a sum in excess of $50,000 (or
the equivalent thereof in any Foreign Currency) is available. The Trustee will
select, in the manner provided in Section 12.2 and subject to the limitations in
Section 12.4, for redemption on such Sinking Fund Payment Date a sufficient
principal amount of Securities of such series to absorb such cash, as nearly as
may be, and will (if requested in writing by the Company) inform the Company of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities will be excluded from eligibility for redemption under this
Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
Sinking Fund Payment Date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company.
The Trustee, in the name and at the expense of the Company (or the Company, if
it will so request the Trustee in writing) will cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.3) for the
redemption of Securities of such series in part at the option of the Company.
The amount of any Sinking Fund Payments not so applied or allocated to the
redemption of Securities of such series will be added to the next cash Sinking
Fund Payment for such series and, together with such payment, will be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
held on the Stated Maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series will be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or before each Sinking Fund Payment Date, the Company will pay to the Trustee in cash or will otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following Sinking Fund Payment Date.
The Trustee will not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that,
where the giving of notice of redemption of any Securities will theretofore have been made, the Trustee will redeem or cause to be redeemed such Securities; PROVIDED that it will have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or Event of Default occurs, and any moneys thereafter paid into the sinking fund, will, during the continuance of such Default or Event of Default, be deemed to have been collected under Article V and held for the payment of all such Securities. In case such Event of Default has been waived as provided in Section 5.13 or the Default cured on or before the 60th day preceding the Sinking Fund Payment Date in any year, such moneys will thereafter be applied on the next succeeding Sinking Fund Payment Date in accordance with this Section 12.5 to the redemption of such Securities.
IN WITNESS WHEREOF the parties hereto have caused this Amended and Restated Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of January 9, 2001.
ECOLAB INC.
By: /s/ Daniel J. Schmechel --------------------------------------- Name: Daniel J. Schmechel Title: Vice President and Treasurer |
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ John R. Prendiville --------------------------------------- Name: John R. Prendiville Title: Authorized Officer |
Exhibit (4)B
ECOLAB INC.
OFFICER'S CERTIFICATE PURSUANT TO
SECTIONS 2.1 AND 2.3 AND SECTION 2.6(b) OF THE
AMENDED AND RESTATED INDENTURE
JANUARY 23, 2001
1. I, Daniel J. Schmechel, do hereby certify that I am the duly appointed Treasurer of Ecolab Inc., a Delaware corporation (the "COMPANY").
I further certify, pursuant to the authority delegated to me, as Treasurer of the Company, by the Chief Financial Officer of the Company pursuant to resolutions adopted on August 18, 2000 by the Board of Directors of the Company (the "BOARD") (copies of which resolutions and letter of delegation are attached hereto as EXHIBIT I), that, pursuant to Section 2.3 of the Amended and Restated Indenture, dated as of January 9, 2001 (the "INDENTURE"), between the Company and Bank One, National Association (f/k/a The First National Bank of Chicago), a national banking association, as trustee (the "TRUSTEE"), which indenture amends and restates the Indenture, dated as of November 1, 1996, between the Company and the Trustee, a series of debt securities of the Company is hereby established with the following terms and provisions (unless otherwise defined herein, capitalized terms used herein have the meanings given thereto in the Indenture):
(a) The title of such series of debt securities is the "6.875% Notes due February 1, 2011" (the "NOTES").
(b) The aggregate principal amount of the Notes that may be authenticated and delivered under the Indenture is $150,000,000 (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of, other Notes pursuant to Sections 2.8, 2.9, 2.11 or 12.3 of the Indenture).
(c) The Stated Maturity of the Notes is February 1, 2011.
(d) The Notes shall bear interest at 6.875% per annum from January 26, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year (each, an "INTEREST PAYMENT DATE"), commencing August 1, 2001, to the Persons in whose names the Notes (or one or more predecessor Securities) are registered at the close of business on the Regular Record Date for
such interest, which shall be the January 15 or July 15 (as the case may be), whether or not a Business Day, immediately preceding such Interest Payment Date.
(e) Interest on the Notes shall be calculated on the basis of a 360-day year of twelve 30-day months and, for any period shorter than a full six-month interest period, on the basis of the actual number of days elapsed in such period.
(f) The principal of and any interest on the Notes shall be payable at such place or places as provided in Section 3.2 of the Indenture.
(g) The Notes may be redeemed, in whole or in part, by, and at the option of, the Company at any time after issuance and prior to maturity at a price equal to the greater of:
- 100% of the principal amount of the Notes to be redeemed; or
- the sum of the present values of the Remaining Scheduled Payments discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points,
plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the Redemption Date; PROVIDED, HOWEVER, that with respect to interest payments that are due on or prior to the Redemption Date, the Company will make payments of interest to the Holders of record of the Notes at the close of business on the Regular Record Date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption Date, (1) the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day before such Redemption Date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (2) if such release (or any successor release) is not available or does not contain such prices on such Business Day, the arithmetic average of the Reference Treasury Dealer Quotations for such Redemption Date.
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Treasury Dealers appointed by the Company.
"REFERENCE TREASURY DEALER" means Credit Suisse First Boston Corporation, Banc of America Securities LLC and their successors; PROVIDED, HOWEVER, that if Credit Suisse First Boston Corporation or Banc of America Securities LLC ceases to be a primary U.S. government securities dealer in New York City (a "PRIMARY TREASURY DEALER"), the Company will substitute another Primary Treasury Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each Reference Treasury Dealer and any Redemption Date, the arithmetic average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by the Reference Treasury Dealer by 5:00 p.m. on the third Business Day before such Redemption Date.
"REMAINING SCHEDULED PAYMENTS" means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal and interest on such Note that would be due after the related Redemption Date but for such redemption; PROVIDED, HOWEVER, that if such Redemption Date is not an Interest Payment Date, the amount of the next succeeding scheduled interest payment on such Note will be reduced by the amount of interest accrued on such Note to such Redemption Date.
"TREASURY RATE" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
Except as otherwise set forth in this paragraph (g), the terms and conditions upon which and the manner in which the Notes may be redeemed by the Company pursuant to this paragraph (g) are governed by the provisions of Article XII of the Indenture; PROVIDED that Section 12.5 of Article XII of the Indenture shall not apply to the Notes.
(h) The Company has no obligation to redeem, purchase or repay the Notes pursuant to any mandatory redemption or sinking fund or analogous provisions or at the option of any Holder thereof.
(i) The Notes are issuable in denominations of $1,000 and any integral multiple thereof.
(j) The entire $150,000,000 principal amount of the Notes shall
be payable upon declaration of acceleration of the maturity thereof pursuant to
Section 5.2 under the Indenture.
(k) The Notes will not be Original Issue Discount Securities.
(l) The Notes shall be issued as one or more Registered Global Securities without Coupons.
(m) The Notes will be issued in permanent global form. The Company initially appoints The Depository Trust Company, New York, New York ("DTC"), to act as the Depositary with respect to the Notes.
(n) [Reserved.]
(o) [Reserved.]
(p) Payment of the principal and interest on the Notes will be made in Dollars.
(q) [Reserved.]
(r) The defeasance and covenant defeasance provisions of Article X of the Indenture will apply to the Notes.
(s) The Events of Default set forth in Article V of the Indenture and the covenants (other than those set forth in Sections 3.6 and 3.10 of the Indenture) set forth in Article III of the Indenture will apply to the Notes.
(t) [Reserved.]
(u) The Trustee, the initial Paying Agent and the initial Security Registrar shall be Bank One, National Association. The initial Depositary with respect to the Notes shall be DTC. The Security Register for the Notes shall be initially maintained at the Trustee's Corporate Trust Office in the Borough of Manhattan, the City of New York.
(v) The Depositary for the Notes is DTC.
(w) Presentations and demands with respect to the Notes may be made and notices with respect to the Notes may be served at the Corporate Trust Office of the Trustee.
(x) The Company will not pay additional amounts on the Notes held by Non-U.S. Persons in respect of any tax, assessment or governmental charge withheld or deducted.
(y) [Reserved.]
2. The Notes will be evidenced by a Global Security in substantially the form attached hereto as EXHIBIT II, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of the Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Global Security, as evidenced by their execution of such Global Security. In the event that certificated Notes (the "CERTIFICATED NOTES") are issued in exchange for the Global Security, the form of certificate evidencing each Certificated Note shall be in substantially the form of the attached Global Security, with such changes as are necessary to evidence the Notes in definitive form rather than as a Global Security.
3. The form and terms of the Notes as established in this certificate have been established pursuant to Sections 2.1 and 2.3 of the Indenture and comply with the Indenture.
[Signature page follows.]
IN WITNESS WHEREOF, I have executed this certificate this 23rd day of January 2001.
/s/ Daniel J. Schmechel ------------------------------- Daniel J. Schmechel Treasurer |
CUSIP NO. 278865AG5 EXHIBIT (4)C
6.875% Notes Due February 1, 2011
No. _____________ $_________________
ECOLAB INC.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Ecolab Inc., a Delaware corporation (herein referred to as the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $150,000,000 on February 1, 2011 (the "Maturity Date") and to pay interest thereon from January 26, 2001, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on February 1 and August 1 in each year (each, an "Interest Payment Date"), commencing August 1, 2001, at 6.875% per annum until the principal hereof is paid or duly provided for.
Any payment of principal or interest required to be made on a day that is not a Business Day need not be made on such day, but may be made on the next succeeding Business Day with the same force and effect as if made on such day and no interest shall accrue as a result of such delayed payment. Interest payable on each Interest Payment Date will include interest accrued from and including January 26, 2001, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, to but excluding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person (the "Holder") in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the January 15 and July 15 (whether or not a Business Day) next preceding such Interest Payment Date (a "Regular Record Date"). Any such interest not so punctually paid or duly provided for ("Defaulted Interest") will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on a special record date (the "Special Record Date") for the payment of such Defaulted Interest to be fixed by the Trustee (referred to herein), notice whereof shall be given to the Holder of this Note not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.
For purposes of this Note, "Business Day" means any day that, in the city of the principal Corporate Trust Office of the Trustee and in the city of New York, New York, is neither a Saturday, Sunday, or legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close.
Payment of the principal of this Note on the Maturity Date will be made against presentation of this Note at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. So long as this Note remains in book-entry form, all payments of principal and interest will be made by the Company in immediately available funds.
GENERAL. This Note is one of a duly authorized issue of securities (herein called the "Securities") of the Company, issued and to be issued in one or more series under an Amended and Restated Indenture, dated as of January 9, 2001 (as it may be supplemented from time to time, herein called the "Indenture"),
between the Company and Bank One, National Association (f/k/a The First National Bank of Chicago), amends and restates the Indenture, dated as of November 1, 1996, between the Company and the Trustee, a national banking association, as trustee (herein called the "Trustee," which term includes any successor trustee under the Indenture with respect to a series of which this Note is a part), which indenture amends and restates the Indenture, dated as of November 1, 1996, between the Company and the Trustee. Reference is made to the Indenture and all indentures supplemental thereto, reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Note is one of a duly authorized series of Securities designated as "6.875% Notes due February 1, 2011" (collectively, the "Notes").
EVENTS OF DEFAULT. If an Event of Default with respect to the Notes shall have occurred and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
MATURITY. The Notes may be redeemed, in whole or in part, by, and at the option of, the Company at any time after issuance and prior to the Maturity Date at a price equal to the greater of:
- 100% of the principal amount of the Notes to be redeemed; or
- the sum of the present values of the Remaining Scheduled Payments discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points,
plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the Redemption Date; provided, however, that with respect to interest payments that are due on or prior to the Redemption Date, the Company will make payments of interest to the Holders of record of the Notes at the close of business on the Regular Record Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date, (1) the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day before such Redemption Date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (2) if such release (or any successor release) is not available or does not contain such prices on such Business Day, the arithmetic average of the Reference Treasury Dealer Quotations (as defined below) for such redemption date.
"Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation, Banc of America Securities LLC and their successors; provided, however, that if Credit Suisse First Boston Corporation or Banc of America Securities LLC ceases to be a primary U.S. government securities dealer in New York City (a "Primary Treasury Dealer"), the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, the arithmetic average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by the Reference Treasury Dealer by 5:00 p.m. on the third Business Day before such Redemption Date.
"Remaining Scheduled Payments" means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal and interest on such Note that would be due after the related Redemption Date but for such redemption; provided, however, that if such Redemption Date is not an Interest Payment Date, the amount of the next succeeding scheduled interest payment on such Note will be reduced by the amount of interest accrued on such Note to such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
Except as otherwise set forth above, the terms and conditions upon
which and the manner in which the Notes may be redeemed by the Company under the
foregoing provisions are governed by Article XII of the Indenture; provided that
Section 12.5 of the Indenture shall not apply to the Notes.
MODIFICATION AND WAIVERS; OBLIGATIONS OF THE COMPANY ABSOLUTE. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series. Such amendment may be effected under the Indenture at any time, subject, with certain exceptions, to the consent of the Holders of not less than a majority in principal amount of all Securities issued under the Indenture at the time Outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of not less than a majority in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Outstanding Securities, to waive compliance by the Company with certain provisions of the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority in principal amount of the Outstanding Securities of individual series to waive on behalf of all of the Holders of Securities of such individual series certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holder of this Note and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.
DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Note and (b) certain restrictive covenants and the related defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
AUTHORIZED DENOMINATIONS. The Notes are issuable only in registered form without coupons in denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000.
REGISTRATION OF TRANSFER OR EXCHANGE. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register upon presentation of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein and therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the Holders surrendering the same.
This Note is a Global Security. If the Depositary is at any time unwilling, unable or ineligible to continue as Depositary and a successor Depository is not appointed by the Company within 90 days, the Company will issue Notes in definitive registered form without Coupons, in any authorized denominations, of like tenor, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing the Notes (each a "Registered Global Note"), in exchange for such Registered Global Note or Notes. In addition, the Company may at any time and in its sole discretion determine that the Notes will no longer be represented by Registered Global Notes and, in such event, will issue Notes in definitive registered form, in such tenor, in any authorized denominations and in an aggregate principal amount equal to the principal amount of the Registered Global Notes representing such Notes, in exchange for such Registered Global Notes. In any such instance, an owner of a beneficial interest in a Global Note will be entitled to physical delivery in definitive registered form of Notes equal in principal amount to such beneficial interest and to have such Notes registered in its name. Notes so issued in definitive registered form will be issued in
denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000 and will be issued in registered form only, without coupons.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Holder as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
DEFINED TERMS. All terms used in this Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
GOVERNING LAW. This Note shall be deemed to be a contract under the laws of the State of New York, and for all purposes will be construed in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its facsimile corporate seal.
Dated: January 26, 2001
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
referred to in the within-
mentioned Indenture
BANK ONE, NATIONAL ASSOCIATION, ECOLAB INC.
as Trustee
By:
-------------------------------------
By: Attest:
-------------------------- ---------------------------------
Authorized Signatory Secretary
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
and irrevocably appoint _______________________________________________ to transfer this Note on the books of Ecolab Inc. The agent may substitute another to act for him.
Your Signature:
Signature guarantee:
EXHIBIT (10)C
U.S. $275,000,000
MULTICURRENCY CREDIT AGREEMENT
Dated as of September 29, 1993
As Amended and Restated as of December 13, 2000
Among
ECOLAB INC.
as a Borrower hereunder and as
Guarantor of all Borrowing Subsidiaries
to become parties hereto,
THE BANKS NAMED HEREIN
as Banks,
CITICORP USA, INC.
as Administrative Agent,
CITIBANK INTERNATIONAL PLC
as Euro-Agent,
and
Bank One, NA
and
Credit Suisse First Boston
as Co-Agents
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS........................................................................1
SECTION 1.01. Certain Defined Terms..........................................................................1
SECTION 1.02. Computation of Time Periods...................................................................14
SECTION 1.03. Accounting Terms and Change in Accounting Principles..........................................14
SECTION 1.04. Currency Equivalents Generally................................................................14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES......................................................................15
SECTION 2.01. The Committed Advances........................................................................15
SECTION 2.02. Making the A Advances.........................................................................16
SECTION 2.03. The B Advances................................................................................21
SECTION 2.04. Fees..........................................................................................27
SECTION 2.05. Reduction of the Commitments; Increased Commitments;
Additional Banks......................................................................................28
SECTION 2.06. Repayment of Committed Advances...............................................................30
SECTION 2.07. Interest on Committed Advances................................................................30
SECTION 2.08. Additional Interest on Eurocurrency Advances..................................................33
SECTION 2.09. Interest Rate Determination...................................................................33
SECTION 2.10. Voluntary Conversion or Continuation of Advances..............................................37
SECTION 2.11. Prepayments...................................................................................39
SECTION 2.12. Increased Costs and Reduced Return............................................................40
SECTION 2.13. Illegality....................................................................................41
SECTION 2.14. Payments and Computations.....................................................................42
SECTION 2.15. Sharing of Payments, Etc......................................................................43
SECTION 2.16. Currency Equivalents..........................................................................44
SECTION 2.17. Taxes.........................................................................................44
SECTION 2.18. Substitution of Banks.........................................................................47
SECTION 2.19. Extension of Commitments......................................................................48
ARTICLE III
CONDITIONS OF LENDING..................................................................................49
SECTION 3.01. Conditions Precedent to Initial Advances......................................................49
SECTION 3.02. Conditions Precedent to Each Committed Borrowing..............................................50
SECTION 3.03. Conditions Precedent to Certain Borrowings....................................................51
SECTION 3.04. Conditions Precedent to Each B Borrowing......................................................51
SECTION 3.05. Conditions Precedent to Initial Local Currency Borrowing under any Local Currency
Addendum...........................................................................................52
ARTICLE IV
REPRESENTATION AND WARRANTIES..........................................................................52
SECTION 4.01. Representations and Warranties of the Company.................................................52
SECTION 4.02. Representations and Warranties of Borrowing Subsidiaries......................................55
ARTICLE V
COVENANTS OF THE COMPANY...............................................................................56
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SECTION 5.01. Affirmative Covenants.........................................................................56
SECTION 5.02. Negative Covenants............................................................................60
SECTION 5.03. Financial Covenant............................................................................61
ARTICLE VI
EVENTS OF DEFAULT......................................................................................61
SECTION 6.01. Events of Default.............................................................................61
ARTICLE VII
THE AGENT AND THE EURO-AGENT...........................................................................63
SECTION 7.01. Authorization and Action......................................................................63
SECTION 7.02. Agent's Reliance, Etc.........................................................................64
SECTION 7.03. Citicorp and Affiliates.......................................................................64
SECTION 7.04. Bank Credit Decision..........................................................................65
SECTION 7.05. Indemnification...............................................................................65
SECTION 7.06. Successor Agents..............................................................................65
ARTICLE VIII
GUARANTY...............................................................................................66
SECTION 8.01. The Guaranty..................................................................................66
SECTION 8.02. Guaranty Unconditional........................................................................66
SECTION 8.03. Discharge Only Upon Payment In Full; Reinstatement in Certain Circumstances...................67
SECTION 8.04. Waiver by the Company.........................................................................68
SECTION 8.05. Subrogation...................................................................................68
SECTION 8.06. Stay of Acceleration..........................................................................68
ARTICLE IX
MISCELLANEOUS..........................................................................................68
SECTION 9.01. Amendments, Etc...............................................................................68
SECTION 9.02. Notices, Etc..................................................................................69
SECTION 9.03. No Waiver; Remedies...........................................................................70
SECTION 9.04. Costs and Expenses............................................................................70
SECTION 9.05. Right of Set-off..............................................................................71
SECTION 9.06. Judgment......................................................................................71
SECTION 9.07. Binding Effect................................................................................71
SECTION 9.08. Assignments and Participations................................................................72
SECTION 9.09. Consent to Jurisdiction.......................................................................75
SECTION 9.10. Governing Law.................................................................................75
SECTION 9.11. Execution in Counterparts.....................................................................75
SECTION 9.12. Indemnification...............................................................................75
SECTION 9.13. Confidentiality...............................................................................76
SECTION 9.14. Non-Reliance by the Banks.....................................................................76
SECTION 9.15. No Indirect Security..........................................................................76
SECTION 9.16. Waiver of Jury Trial..........................................................................76
SECTION 9.17. Effectiveness of Amendment and Restatement....................................................77
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EXHIBIT A-1 Form of A Note
EXHIBIT A-2 Form of B Note
EXHIBIT B-1 Form of Notice A Borrowing
EXHIBIT B-2 Form of Notice B Borrowing (Dollars)
EXHIBIT B-3 Form of Notice of B Borrowing (Alternative Currency)
EXHIBIT B-4 Form of Notice of Local Currency Borrowing
EXHIBIT C-1 Form of Assignment and Acceptance
EXHIBIT C-2 Form of Increase Agreement
EXHIBIT D Form of Election to Participate
EXHIBIT E Form of Opinion of General Counsel of the Company
(Initial Borrowing by the Company)
EXHIBIT F Form of Opinion of Special Counsel for the Company
(Initial Borrowing by the Company)
EXHIBIT G Form of Opinion of Special Counsel for a Borrowing
Subsidiary
EXHIBIT H Form of Opinion of General Counsel of the Company
(Initial Borrowing by a Borrowing Subsidiary)
EXHIBIT I Form of Opinion of Special Counsel for the Company
(Initial Borrowing by a Borrowing Subsidiary)
EXHIBIT J Form of Opinion of Special Counsel for the Agent
EXHIBIT K Form of Local Currency Addendum
SCHEDULE I Applicable Lending Office
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MULTICURRENCY CREDIT AGREEMENT
Dated as of September 29, 1993
As Amended and Restated as of December 13, 2000
ECOLAB INC., a Delaware corporation (the "COMPANY"), the Banks party hereto from time to time, Citicorp USA, Inc. ("CITICORP") as administrative agent (the "AGENT") for the Banks hereunder, CITIBANK INTERNATIONAL PLC, as agent for the banks in connection with certain of the Eurocurrency Advances (the "EURO-AGENT") and Bank One, NA and Credit Suisse First Boston, as co-agents (the "CO-AGENTS"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"A ADVANCE" means an advance by a Bank to a Borrower as part of an A Borrowing and refers to a Base Rate Advance, an Adjusted CD Rate Advance or a Eurocurrency Advance, each of which shall be a "TYPE" of A Advance.
"A BORROWING" means a borrowing consisting of simultaneous A Advances
of the same Type made to a single Borrower by each of the Banks pursuant to
SECTION 2.01.
"A NOTE" means a promissory note of a Borrower payable to the order of any Bank, in substantially the form of EXHIBIT A-1 hereto, evidencing the aggregate indebtedness of such Borrower to such Bank resulting from the A Advances made by such Bank to such Borrower.
"ADDED BANK" has the meaning specified in SECTION 2.05(c).
"ADJUSTED CD RATE" means, for any Interest Period for each Adjusted CD Rate Advance comprising part of the same A Borrowing, an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the rate of interest determined by the Agent to be the average (rounded upward to the nearest whole multiple of 1/100 of 1% per annum, if such average is not such a multiple) of the consensus bid rates determined by each of the Reference Banks for the bid rates per annum, at 9:00 A.M. (New York City time) (or as soon thereafter as practicable) on the first day of such Interest Period, of New York certificate of deposit dealers of recognized standing selected by such Reference Bank for the purchase at face value of certificates of deposit of such Reference Bank in an amount substantially equal to such Reference Bank's
Adjusted CD Rate Advance comprising part of such Borrowing and with a maturity equal to such Interest Period, by (ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve Percentage (as defined below) for such Interest Period (PROVIDED, HOWEVER, for purposes of determining the amount of such certificate of deposit in the case of Citibank, such amount shall be substantially equal to the Adjusted CD Rate Advance to be made by Citicorp comprising part of such Borrowing), plus
(b) the Assessment Rate (as defined below) for such Interest Period.
The "ADJUSTED CD RATE RESERVE PERCENTAGE" for the Interest Period for each Adjusted CD Rate Advance comprising part of the same Borrowing means the reserve percentage applicable on the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with deposits exceeding one billion Dollars with respect to liabilities consisting of or including (among other liabilities) Dollar nonpersonal time deposits in the United States with a maturity equal to such Interest Period. The "ASSESSMENT RATE" for the Interest Period for each Adjusted CD Rate Advance comprising part of the same Borrowing means the annual assessment rate estimated by the Agent on the first day of such Interest Period for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring Dollar deposits of Citibank in the United States. The Adjusted CD Rate for each Interest Period for each Adjusted CD Rate Advance comprising part of the same Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks on the first day of such Interest Period, SUBJECT, HOWEVER, to the provisions of SECTION 2.09.
"ADJUSTED CD RATE ADVANCE" means an Advance denominated in Dollars which bears interest as provided in SECTION 2.07(b).
"ADVANCE" means an A Advance, a Local Currency Advance or a B Advance.
"AFFILIATE" means, when used with respect to a specified Person, another Person that directly or indirectly controls or is controlled by or is under common control with the Person specified.
"AGREEMENT" means this Multicurrency Credit Agreement, originally dated and executed as of September 29, 1993, as the same has been amended, and amended and restated from time to time, including by this amendment and restatement dated as of December 13, 2000, and as it may from time to time hereafter be amended, restated, supplemented or otherwise modified from time to time. For ease of reference, the Agreement as it existed immediately prior to this amendment and restatement is sometimes hereinafter referred to as the "ORIGINAL AGREEMENT", and the Agreement as it exists upon and after this amendment and restatement may sometimes be referred to as the "RESTATED AGREEMENT".
"ALTERNATIVE CURRENCY" means any lawful currency other than Dollars which is freely transferable and convertible into Dollars.
"ANNIVERSARY DATE" means each December 13 occurring during the term of this Agreement, commencing December 13, 2001, or if any such date is not a Business Day, the next preceding Business day.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank, such Bank's Domestic Lending Office in the case of a Base Rate Advance, such Bank's CD Lending Office in the case of an Adjusted CD Rate Advance, such Bank's Eurocurrency Lending Office in the case of a Eurocurrency Advance (other than a Eurocurrency Advance which is a Local Currency Advance), such Bank's (or it's Affiliate's) branch or agency, as specified by such Bank in the applicable Local Currency Addendum, in the case of a Local Currency Advance, and, in the case of a B Advance, the office of such Bank notified by such Bank to the Agent as its Applicable Lending Office with respect to such B Advance.
"APPLICABLE MARGIN" means, as applicable, the Applicable CD Rate Margin under SECTION 2.07(b), the Applicable Eurocurrency Margin under SECTION 2.07(c), the Applicable Floating Rate Margin under any Applicable Local Currency Addendum or the Applicable Fixed Rate Margin under any Local Currency Addendum.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance in substantially the form of EXHIBIT C-1 hereto pursuant to which a Bank assigns all or a portion of such Bank's rights and obligations under this Agreement in accordance with the terms of SECTION 9.08.
"AUSTRALIAN LOCAL CURRENCY ADDENDUM" or "AUSTRALIAN LOCAL CURRENCY ADDENDA" means, as applicable, each of or both of (a) the Local Currency Addendum dated as of October 17, 1997 among Ecolab PTY Limited, the Company, the Local Currency Banks named therein, the Agent, and Citisecurities Limited as Local Currency Agent, and (b) the Local Currency Addendum dated as of June 23, 1998 among Ecolab Finance PTY Limited, the Company, the Local Currency Banks named therein, the Agent, and Citisecurities Limited as Local Currency Agent.
"AVAILABLE COMMITMENT" means, as to any Bank at any time, an amount equal to such Bank's Commitment at such time MINUS the aggregate of all such Bank's Committed Advances outstanding at such time.
"B ADVANCE" means an advance by a Bank to a Borrower as part of a B
Borrowing resulting from the applicable auction bidding procedure described in
SECTION 2.03.
"B BORROWING" means a borrowing consisting of simultaneous B Advances to a Borrower from each of the Banks whose offer to make a B Advance as part of such borrowing has been accepted by the Company on behalf of such Borrower under the applicable auction bidding procedure described in Section 2.03.
"B NOTE" means a promissory note of a Borrower payable to the order of any Bank, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to such Bank resulting from a B Advance made by such Bank.
"B REDUCTION" has the meaning specified in SECTION 2.01.
"BANKS" means the financial institutions listed on the signature pages hereof, and any assignee of an existing Bank pursuant to an Assignment and Acceptance.
"BASE RATE" means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank's base rate; or
(b) one-half of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an A Advance denominated in Dollars which bears interest as provided in SECTION 2.07(a).
"BORROWER" means the Company or any Borrowing Subsidiary, and their respective successors and permitted assigns, and "BORROWERS" means all of the foregoing.
"BORROWING" means an A Borrowing, a Local Currency Borrowing or a B Borrowing.
"BORROWING SUBSIDIARY" means any Subsidiary (i) that is a Wholly-Owned Consolidated Subsidiary, and (ii) as to which an Election to Participate shall have been delivered to the Agent, duly executed on behalf of such Borrowing Subsidiary and the Company, prior to the date of any Notice of Borrowing on behalf of such Borrowing Subsidiary. Ecolab PTY Limited and Ecolab Finance PTY Limited are Borrowing Subsidiaries as a result of Elections to Participate executed by each of them pursuant to this Agreement, on October 17, 1997 in the case of Ecolab Finance PTY and on June 23, 1998 in the case of Ecolab Finance PTY Limited.
"BUSINESS DAY" means a day of the year (i) on which banks are not required or authorized to close in New York City, (ii) if the applicable Business Day relates to any Eurocurrency Advance, on which dealings are carried on in the London interbank market and (iii) if the applicable Business Day relates to a disbursement to or payment by a Borrowing Subsidiary or a branch of the Company under a Local Currency Addendum, on which banks are not required or authorized to close in the city in which the chief executive office or principal place of business of such Borrowing Subsidiary is located or in which such branch of the Company is located, respectively.
"CAPITALIZATION" means, as of any date, the sum of Total Debt plus Shareholders' Equity.
"CD LENDING OFFICE" means, with respect to any Bank, the office of such Bank specified as its "CD Lending Office" opposite its name on SCHEDULE I hereto (or, if no such office is specified, its Domestic Lending Office), or such other office of such Bank as such Bank may from time to time specify to the Borrower and the Agent.
"CHANGE OF CONTROL" means an event which shall be deemed to have occurred if any person or group of persons (within the meaning of Section 13 or 14 of the Exchange Act) acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under the Exchange Act) of stock of the Company of any class or classes where the stock the beneficial ownership of which is so acquired carries (otherwise than by reason only of the happening of a contingency) more than 50 percent of the ordinary voting power for the election of directors generally of the Company; or, during any period of 12 consecutive calendar months, individuals:
(i) who were directors of the Company on the first day of such period, or
(ii) whose election or nomination for election to the board of directors of the Company was recommended or approved by at least a majority of the directors then still in office who were directors of the Company on the first day of such period, or whose election or nomination for election was so approved
shall cease to constitute a majority of the board of directors of the Company.
"CITIBANK" means Citibank, N.A.
"COMMITTED ADVANCE" means an A Advance or a Local Currency Advance.
COMMITTED BORROWING" means an A Borrowing or a Local Currency Borrowing.
"COMMITMENT" has the meaning specified in SECTION 2.01.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary the accounts of which would be consolidated with those of the Company in its consolidated financial statements at such date in accordance with GAAP.
"CONVERT", "CONVERSION", and "CONVERTED" each refer to a conversion of Committed Advances of one Type into Committed Advances of another Type pursuant to SECTION 2.09, 2.10 or 2.13.
"CREDIT RATING" means, at any time, the credit rating on the Company's long-term senior unsecured debt then most recently publicly announced by either Moody's or S&P and "CREDIT RATINGS" means both such credit ratings.
"DEBT" means (but without duplication of any item) (i) indebtedness for borrowed money, (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations to pay the deferred purchase price of property or services, excluding trade obligations and other accounts payable arising in the ordinary course of business, (iv) obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases, (v) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i) through (iv) above, and (vi) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA. "DEBT" shall not include contingent obligations for the liabilities of any Joint Venture Entity imposed solely as a matter of law by virtue of ownership of equity interests in such Joint Venture Entity.
"DEFAULT" means any event which would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
"DESIGNATED A BORROWING" has the meaning specified in SECTION 2.01(b).
"DESIGNATED LOCAL CURRENCY BORROWING" has the meaning specified in
SECTION 2.01(b).
"DESIGNATED PREPAYMENT" has the meaning specified in SECTION 2.01(b).
"DOLLARS" and the sign "$" each means lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Bank, the office of such Bank specified as its "Domestic Lending Office" opposite its name on SCHEDULE I hereto or such other office of such Bank as such Bank may from time to time specify to the Company and the Agent.
"ELECTION TO PARTICIPATE" means an Election to Participate in substantially the form of EXHIBIT D hereto.
"ELIGIBLE ASSIGNEE" means (i) a Bank or any affiliate of a Bank; (ii)
a commercial bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least $250,000,000; or
(iii) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000 or the local currency equivalent
thereof, provided that such bank is acting through a branch or agency located in
the United States.
"ELIGIBLE LOCAL CURRENCY BANK" means with respect to any Local Currency Addendum, any Local Currency Bank under such Local Currency Addendum which meets the eligibility requirements set forth in such Local Currency Addendum.
"ERISA" means the Employment Retirement Income Security Act of 1974, as amended from time to time and the regulations promulgated and rulings issued thereunder.
"ERISA AFFILIATE" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Company or any of its Subsidiaries, (ii)
partnership, trade or business under common control (within the meaning of
Section 414(c) of the Internal Revenue Code) with the Company or any of its
Subsidiaries, and (iii) member of the same affiliated service group (within the
meaning of Section 414(m) of the Internal Revenue Code) as the Company or any of
its Subsidiaries, any corporation described in clause (i) or any partnership,
trade or business described in clause (ii).
"EUROCURRENCY ADVANCE" means an Advance denominated in Dollars or in an Alternative Currency which bears interest as provided in SECTION 2.07(c).
"EUROCURRENCY LENDING OFFICE" means, with respect to any Bank, the office of such Bank specified as its "Eurocurrency Lending Office" opposite its name on SCHEDULE I hereto (or, if no such office is specified, its Domestic Lending Office), or such other office of such Bank as such Bank may from time to time specify to the Company and the Agent. A Bank may specify different offices for its A Advances denominated in Dollars and its A Advances denominated in Alternative Currencies, respectively, and the term "Eurocurrency Lending Office" shall refer to any or all such offices, collectively, as the context may require when used in respect of such Bank.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"EUROCURRENCY RATE" means, for the Interest Period for each
Eurocurrency Advance comprising part of the same Committed Borrowing, an
interest rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars or in the relevant
Alternative Currency are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurocurrency Advance comprising part of such Committed Borrowing and for a
period equal to such Interest Period; PROVIDED, HOWEVER, for purposes of
determining the amount of any such deposit in the case of Citibank, such amount
shall be substantially equal to the Eurocurrency Advance to be made by Citicorp
comprising part of such Borrowing. The Eurocurrency Rate for the Interest Period
for each Eurocurrency Advance comprising part of the same Committed Borrowing
shall be determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, SUBJECT, HOWEVER, to the provisions of
SECTION 2.09.
"EUROCURRENCY RATE RESERVE PERCENTAGE" of any Bank for the Interest Period for any Eurocurrency Advance means the reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Bank (or for Citibank, in the case of Eurocurrency Advances of Citicorp) with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in SECTION 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.
"FIXED RATE" means, as applicable, the Adjusted CD Rate, the Eurocurrency Rate, or any fixed interest rate set forth in a Local Currency Addendum.
"FIXED RATE AUCTION" has the meaning specified in SECTION 2.03(b)(i).
"FIXED RATE ADVANCE" means any Adjusted CD Rate Advance, any Eurocurrency Advance, or any Local Currency Advance which bears interest at a fixed interest rate set forth in the applicable Local Currency Addendum.
"FLOATING RATE" means, as applicable, the Base Rate or any fluctuating interest rate set forth in a Local Currency Addendum.
"FLOATING RATE ADVANCE" means any Base Rate Advance, or any Local Currency Advance which bears interest at a fluctuating interest rate set forth in the Local Currency Addendum.
"GAAP" means generally accepted accounting principles set forth in the opinions, statements and pronouncements of the Financial Accounting Standards Board, Accounting Principles Board and the American Institute of Certified Public Accountants or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, which are applicable to the circumstances as of the date of determination and in any event applied in a manner consistent with the application thereof used in the preparation of the financial statements referred to in SECTION 4.01(e).
"INCREASE AGREEMENT" means an Increase of Commitments Agreement executed by the Company, the Agent and one or more Increasing Banks or Added Banks, in accordance with SECTION 2.05(d) and in substantially the form of EXHIBIT C-2 hereto.
"INCREASED COMMITMENTS" has the meaning specified in SECTION 2.05(b).
"INCREASING BANK" has the meaning specified in SECTION 2.05(d).
"INDEXED RATE AUCTION" has the meaning specified in SECTION 2.03(b)(i).
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any, by which the present value of the vested benefits under such Plan exceeds the fair market value of the assets of such Plan allocable to such benefits.
"INTEREST PERIOD" means, for each Adjusted CD Rate Advance comprising part of the same A Borrowing, each Eurocurrency Advance comprising part of the same Committed Borrowing, or each other Fixed Rate Advance comprising part of the same Local Currency Borrowing, the period commencing on the date of such Committed Advance or the date of the Conversion or Redenomination, as applicable, of any Floating Rate Advance into such a Committed Advance and ending on the last day of the period selected by the Company (on behalf of the respective Borrower) pursuant to the provisions below, and thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Company (on behalf of the respective Borrower) pursuant to the provisions of SECTION 2.10 and subject to the provisions below. The duration of each such Interest Period shall be 30, 60, 90, 120, 150 or 180 days in the case of an Adjusted CD Rate Advance, one, two, three or six months, or nine or twelve months, if available, in the case of a Eurocurrency Advance, and such number of days or months as may be set forth in the applicable Local Currency Addendum in the case of a Fixed Rate Advance other than a Eurocurrency Advance, in each case as the Company may select pursuant to the provisions of SECTION 2.02(a) or SECTION 2.10, as applicable; PROVIDED, HOWEVER, that: (i) Interest Periods commencing on the same date for Committed Advances comprising part of the same Committed Borrowing shall be of the same duration; and (ii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; PROVIDED, in the case of any Interest Period for a Eurocurrency Advance, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day. If, in accordance with SECTION 2.13 or otherwise, any Committed Borrowing shall include both Fixed Rate Advances and Floating Rate Advances, each such Floating Rate Advance shall be assigned an Interest Period that is coextensive with the Interest Period then assigned to such Fixed Rate Advances.
"JOINT VENTURE" means the Joint Venture Entities, the equity in the income of which is reported on the consolidated income statements of the Company and its Consolidated Subsidiaries.
"JOINT VENTURE AGREEMENT" means the Amended and Restated Umbrella Agreement dated as of June 26, 1991 between the Company and Henkel Kommanditgesellschaft auf Aktien.
"JOINT VENTURE ENTITIES" means the joint venture entities and their subsidiaries collectively, from time to time established in accordance with the terms of the Joint Venture Agreement.
"LOCAL CURRENCY ADDENDUM" means a local currency addendum among the Company, a Borrowing Subsidiary, one or more Local Currency Banks, a Local Currency Agent and the Agent, substantially in the form of EXHIBIT A.
"LOCAL CURRENCY ADVANCE" means any Advance in an Alternative Currency, made to a Borrower pursuant to SECTION 2.02A and a Local Currency Addendum. Each Local Currency Advance shall be a Fixed Rate Advance or a Floating Rate Advance. Floating Rate Advances under a Local Currency Addendum, and Fixed Rate Advances of the same type under a Local Currency Addendum each shall be a "TYPE" of Local Currency Advance.
"LOCAL CURRENCY AGENT" means one or more entities (which may be the Agent or one of its local Affiliates), satisfactory to the Agent, as specified in the applicable Local Currency Addendum. Unless the Agent otherwise elects, the Local Currency Agent under each Local Currency Addendum shall be the Agent or one of its local Affiliates.
"LOCAL CURRENCY BANK" means any Bank (or any Affiliate, branch or agency thereof) party to a Local Currency Addendum. In the event any agency, branch or Affiliate of a Bank shall be party to a Local Currency Addendum, such agency, branch or Affiliate shall, to the extent of any commitment extended and any Advances made by it, have all the rights of such Bank hereunder; PROVIDED, however, that such Bank shall continue to the exclusion of such agency or Affiliate to have all the voting and consensual rights vested in it by the terms hereof.
"LOCAL CURRENCY BORROWING" means a Borrowing comprised of Local Currency Advances.
"LOCAL CURRENCY COMMITMENT" has the meaning specified in SECTION 2.02A.
"LOCAL CURRENCY COUNTRY" means, with respect to any Local Currency Addendum, the country in which Local Currency Advances are to be made and repaid under such Local Currency Addendum.
"LOCAL CURRENCY FACILITY" means a facility for providing Local Currency Advances pursuant to a Local Currency Addendum.
"LOCAL CURRENCY FACILITY AGGREGATE COMMITMENT" has the meaning
specified in SECTION 2.02A.
"MAJORITY BANKS" means at any time Banks holding at least 51% of the then aggregate unpaid principal amount of the Committed Advances made by Banks, or, if no such principal amount is then outstanding, Banks having at least 51% of the Commitments. If at any time there shall be no outstanding Committed Advances and the Commitments shall have been terminated, "MAJORITY BANKS" shall mean the holders of 51% of the then aggregate unpaid principal amount of the B Notes.
"MAJORITY LOCAL CURRENCY BANKS" means at any time with respect to any Local Currency Addendum, Local Currency Banks having at such time Local Currency Commitments representing at least 51% of the Local Currency Facility Aggregate Commitment at such time under such Local Currency Addendum.
"MARGIN STOCK" has the meaning specified in Regulation U issued by the Board of Governors of the Federal Reserve System.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Company or any of its ERISA Affiliates
is making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means an employee benefit plan, other than a Multiemployer Plan, subject to Title IV of ERISA to which the Company or any of its ERISA Affiliates, and more than one employer other than the Company or any of its ERISA Affiliates, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the Company or any of its ERISA Affiliates made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.
"NOTE" means an A Note, a B Note or any note issued with respect to any Local Currency Advances.
"NOTICE OF A BORROWING" has the meaning specified in SECTION 2.02(a).
"NOTICE OF B BORROWING" means (i) in the case of a B Borrowing proposed to be made pursuant to SECTION 2.03(b), a written request for such B Borrowing substantially in the form of EXHIBIT B-2 hereto and (ii) in the case of a B Borrowing proposed to be made pursuant to SECTION 2.03(c), a written request for such B Borrowing substantially in the form of EXHIBIT B-3 hereto.
"NOTICE OF LOCAL CURRENCY BORROWING" has the meaning specified in
SECTION 2.02B(a).
"PAYMENT OFFICE" means (i) for Dollars, the principal office of Citibank in New York City, located on the date hereof at 399 Park Avenue, New York, New York 10043, (ii) for
any Alternative Currency (other than with respect to Local Currency Advances), the office of Citibank International Plc located at 335 Strand, London WC2R ILS England, and (iii) with respect to any Local Currency Advance, the office of the Local Currency Agent set forth in the applicable Local Currency Addendum, or in any case, such other office of the Agent, the Euro-Agent or the Local Currency Agent, as applicable, as shall be from time to time selected by it by written notice to the Company and the Banks.
"PERSON" means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PLAN" means an employee benefit plan, other than a Multiemployer Plan, which is (or, in the event that any such plan has been terminated within five years after a transaction described in Section 4069 of ERISA, was) maintained for employees of the Company or any of its ERISA Affiliates and subject to Title IV of ERISA.
"PRIMARY CURRENCY" means the lawful currency of each of the Federal Republic of Germany, France, Japan, Italy, the United Kingdom and Canada.
"REDENOMINATE", "REDENOMINATION" and "REDENOMINATED" each refer to redenomination of Advances comprising all or part of the same Committed Borrowing from Dollars into an Alternative Currency or from an Alternative Currency into Dollars or another Alternative Currency, or the continuation of such Advances in the same Alternative Currency, in each case pursuant to SECTION 2.09, 2.10(b) or 2.13.
"REFERENCE BANKS" means Citibank, Bank One, NA and Credit Suisse First Boston.
"RESTATEMENT DATE" means December 13, 2000, the date that the
amendment and restatement of this Agreement has become effective pursuant to
SECTION 9.17.
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw-Hill Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHAREHOLDERS' EQUITY" means at any date the consolidated shareholders' equity of the Company and its Consolidated Subsidiaries which would appear as such on a consolidated balance sheet as of such date of the Company and its Consolidated Subsidiaries, after deducting treasury stock and as determined in accordance with GAAP.
"SIGNIFICANT SUBSIDIARY" shall have the meaning assigned to such term in Regulation S-X issued pursuant to the Securities Act and the Exchange Act.
"STATED TERMINATION DATE" means December 13, 2005, or such later date as may be established pursuant to SECTION 2.19.
"SUBSIDIARY" means any corporation or other entity of which securities having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly (through one or more Subsidiaries) owned or controlled by the Company.
"TERMINATION DATE" means the Stated Termination Date or the earlier date of termination in whole of the Commitments pursuant to SECTION 2.05(a) or 6.01.
"TERMINATION EVENT" means (i) a "reportable event," as such term is
described in Section 4043 of ERISA (other than a "reportable event" not subject
to the provision for 30-day notice to the PBGC), or an event described in
Section 4062(f) of ERISA, or (ii) the withdrawal of the Company or any of its
ERISA Affiliates from a Multiple Employer Plan during a plan year in which it
was a "substantial employer", as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by the Company or any of its ERISA
Affiliates under Section 4064 of ERISA upon the termination of a Multiple
Employer Plan, or (iii) the distribution of a notice of intent to terminate a
Plan pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or
(v) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"TOTAL COMMITMENT" means, at any time, the sum of all of the Commitments at such time.
"TOTAL DEBT" means, as of any date, all Debt of the Company and its Consolidated Subsidiaries on a consolidated basis, other than, to the extent included in Debt, liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA.
"TYPE", in respect of any A Advance, has the meaning assigned thereto in the definition herein of "A ADVANCE", and in respect of any Local Currency Advance, has the meaning assigned thereto in the definition herein of "LOCAL CURRENCY ADVANCE".
"UTILIZATION FEE" has the meaning specified in SECTION 2.04(b).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated Subsidiary in which all of the shares of capital stock or other equity interests are, at the time, directly or indirectly owned by the Company; PROVIDED that up to 10% of each class of such shares of capital stock or other equity interests may be directors' qualifying shares or shares or equity interests issued by such Subsidiary under employee compensation or incentive plans.
"WITHDRAWAL LIABILITY" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding."
SECTION 1.03. ACCOUNTING TERMS AND CHANGE IN ACCOUNTING PRINCIPLES. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. If any changes in accounting principles from those used in the preparation of the financial statements referred to in SECTION 4.01(e) are hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or successors thereto or agencies with similar functions) and are adopted by the Company with the agreement of its independent certified public accountants and such changes result in a change in the components of the calculation of any of the financial covenants, standards or terms found in ARTICLE V hereof, the Company and the Agent agree to enter into negotiations in order to amend such provisions so as to equitably reflect such changes with the desired result that the criteria for evaluating the Company's financial condition shall be the same after such changes as if such changes had not been made, PROVIDED, HOWEVER, that no change in GAAP that would affect the components of the calculation of any of such financial covenants, standards or terms shall be given effect in such calculations until such provisions are amended, in a manner satisfactory to the Agent, to so reflect such change in accounting principles. Without limiting the generality of the foregoing, any sale of accounts receivable, chattel paper, instruments, general intangibles and related equipment or inventory or any other assets by the Company or any Subsidiary which constitutes a sale of such assets under GAAP as in effect from time to time shall not constitute Debt under this Agreement or the grant of a Lien on such assets for purposes of this Agreement. Notwithstanding anything in the second sentence of this Section to the contrary, whether any such sale constitutes a sale shall be determined by SFAS 125 or any successor pronouncement from and after its respective effective date.
SECTION 1.04. CURRENCY EQUIVALENTS GENERALLY. For all purposes of this
Agreement, except as otherwise provided in ARTICLE II, the equivalent in any
Alternative Currency of an amount in Dollars shall be determined at the rate of
exchange quoted by Citibank (or, if applicable, the applicable Local Currency
Agent if other than Citibank or an Affiliate of Citibank), in London, at 9:00
A.M. (London time) (or if later, at the time of receipt of the applicable
Notice) on the date of determination, to prime banks in London for the spot
purchase in the London foreign exchange market of such amount of Dollars with
such Alternative Currency; provided that if the rate of exchange cannot be
determined as described above, then the rate of exchange shall be the rate
determined by the Euro-Agent or the applicable Local Currency Agent in good
faith to be the appropriate rate of exchange, having regard to market conditions
as the Euro-Agent or such applicable Local Currency Agent deems appropriate.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE COMMITTED ADVANCES.
(a) Each Bank severally agrees, on the terms and conditions hereinafter set forth, to make A Advances to the Borrowers from time to time on any Business Day during the period from the date hereof until the Termination Date. Each Local Currency Bank under a Local Currency Addendum severally agrees, on the terms and conditions set forth herein and in such Local Currency Addendum, to make Local Currency Advances to a Borrower party to such Local Currency Addendum from time to time on any Business Day on and after the execution of such Local Currency Addendum until the earlier of the Termination Date or the termination of the Commitment of such Local Currency Bank under such Local Currency Addendum. The aggregate amount (determined in Dollars) of the Committed Advances of any Bank shall not exceed at any time outstanding the Dollar amount set opposite such Bank's name on the signature pages hereof (or of any Assignment and Acceptance to which such Bank is a party), as such amount may be reduced pursuant to SECTION 2.05(a) (such Bank's "COMMITMENT"), PROVIDED that the aggregate amount of the Commitments of the Banks shall be deemed used from time to time to the extent of the aggregate principal amount of the B Advances then outstanding and such deemed use of the aggregate amount of the Commitments shall be applied to the Banks ratably according to their respective unused Commitments (such deemed use of the aggregate amount of the Commitments being a "B REDUCTION").
(b) Each A Borrowing shall consist of A Advances of the same Type made on the same day to the same Borrower by the Banks ratably according to their respective Available Commitments; PROVIDED HOWEVER, that if the Borrower desires to obtain Local Currency Advances under either Australian Local Currency Addendum, but lacks borrowing availability from the Local Currency Banks under such Local Currency Addendum because of the amount of outstanding A Advances, an A Borrowing (a "DESIGNATED A BORROWING") made to fund a prepayment of A Advances to such Local Currency Banks in order to increase borrowing availability under such Local Currency Addendum (a "DESIGNATED PREPAYMENT") shall, at the election of the Borrower set forth in the Notice of A Borrowing for such Designated A Borrowing, be made by the Banks ratably according to their respective Available Commitments after giving pro forma effect to both the Designated Prepayment and the Local Currency Advances to be made as a result of the increase of borrowing availability under the applicable Local Currency Addendum (the "DESIGNATED LOCAL CURRENCY BORROWING"); PROVIDED FURTHER, HOWEVER, that each Designated A Borrowing must be made on the same date as the corresponding Designated Prepayment and the proceeds of the Designated A Borrowing shall be applied simultaneously to the making of the corresponding Designated Prepayment, and the corresponding Designated Local Currency Borrowing shall be made within two Business Days thereafter. Each Local Currency Borrowing under a Local Currency Addendum shall consist of Local Currency Advances in the same Alternative Currency of the same Type made on the same day to the same Borrower by the applicable Local Currency
Banks ratably according to the respective Local Currency Commitments of such Local Currency Banks. Each Committed Borrowing shall be in an aggregate amount:
(i) in the case of a Borrowing comprised of Base Rate Advances, not less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof;
(ii) in the case of a Borrowing comprised of Eurocurrency Advances denominated in Dollars or Adjusted CD Rate Advances, not less than $9,000,000 or an integral multiple of $1,000,000 in excess thereof;
(iii) in the case of a Borrowing comprised of Eurocurrency Advances denominated in a Primary Currency, not less than the equivalent in such Primary Currency of $9,000,000 or an integral multiple of the equivalent in such Primary Currency of $1,000,000;
(iv) in the case of a Borrowing comprised of Eurocurrency Advances (other than Local Currency Advances) denominated in any Alternative Currency other than a Primary Currency, not less than any amount (and an integral multiple in excess thereof) advised to the Company by the Euro-Agent on the basis of then prevailing market conditions and conventions; and
(v) in the case of a Local Currency Borrowing, not less than the amounts, if any, specified in the applicable Local Currency Addendum.
(c) Within the limits of each Bank's Commitment, a Borrower may borrow, repay pursuant to SECTION 2.06 or prepay pursuant to SECTION 2.11, and reborrow under this SECTION 2.01. For purposes of this SECTION 2.01 and all other provisions of this ARTICLE II, the equivalent in Dollars of any Alternative Currency or the equivalent in any Alternative Currency of Dollars or of any other Alternative Currency shall be determined in accordance with SECTION 2.16.
SECTION 2.02. MAKING THE A ADVANCES. (a) Each A Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City time) by the Company (on behalf of the applicable Borrower):
(w) in the case of a proposed A Borrowing comprised of Base Rate Advances, to the Agent on the date of such proposed Borrowing (but two Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing);
(x) in the case of a proposed A Borrowing comprised of Adjusted CD Rate Advances, to the Agent two Business Days prior to the date of such proposed Borrowing (but four Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing);
(y) in the case of a proposed A Borrowing comprised of Eurocurrency Advances denominated in Dollars, to the Agent three Business Days prior to the date of such
proposed Borrowing (but five Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing); and
(z) in the case of a proposed A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent three Business Days prior to the date of such proposed Borrowing (but five Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing).
The Agent or Euro-Agent, as applicable, shall give each Bank prompt notice
thereof by telecopy, telex or cable. Each such notice of an A Borrowing (a
"NOTICE OF A BORROWING") shall be by telecopy, telex or cable, confirmed
immediately in writing, in substantially the form of EXHIBIT B-1 hereto,
specifying therein the requested (i) Borrower, (ii) date of such A Borrowing,
(iii) Type of A Advances comprising such A Borrowing, (iv) in the case of a
proposed A Borrowing comprised of Eurocurrency Advances, currency of such A
Advances, (v) in the case of a proposed A Borrowing comprised of Eurocurrency
Advances or Adjusted CD Rate Advances, initial Interest Period for each such
Advance and (vi) aggregate amount of such A Borrowing. The Company shall
certify, in each Notice of A Borrowing, the Credit Ratings, if any, then in
effect. In the case of an A Borrowing comprised of Eurocurrency Advances
denominated in an Alternative Currency, the Company shall request, within
one-half hour prior to the issuance of the applicable Notice of A Borrowing, the
advice of the Euro-Agent as to the applicable exchange rate then in effect with
respect to such Alternative Currency, and the Company shall specify in such
Notice of A Borrowing the exchange rate so advised to it by the Euro-Agent. In
the case of a proposed A Borrowing comprised of Adjusted CD Rate Advances or
Eurocurrency Advances, the Agent or the Euro-Agent, as applicable, shall
promptly notify each Bank and the Company of the applicable interest rate under
SECTION 2.07(b) or 2.07(c), as applicable.
(b) Each Bank shall make available for the account of its Applicable Lending Office:
(i) in the case of an A Borrowing comprised of Base Rate Advances, to the Agent before 12:00 noon (New York City time)(or, if the applicable Notice of A Borrowing shall have been given on the date of such A Borrowing, before 4:00 P.M. (New York City time)) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing;
(ii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in Dollars or Adjusted CD Rate Advances, to the Agent before 12:00 noon (New York City time) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in Dollars; and
(iii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent before 12:00 noon (London time) on the date of such A Borrowing, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Euro-Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in such Alternative Currency.
After the Agent's or the Euro-Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ARTICLE III, the Agent or the Euro-Agent, as applicable, will make such funds available to the applicable Borrower at the aforesaid applicable Payment Office.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower on whose behalf it shall have been submitted. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurocurrency Advances, the applicable Borrower shall indemnify each Bank against any loss, cost or expense reasonably incurred by such Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in ARTICLE III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent or Euro-Agent, as applicable, shall have received notice from a Bank prior to the date of any A Borrowing that such Bank will not make available to the Agent or Euro-Agent such Bank's ratable portion of such A Borrowing, the Agent or Euro-Agent, as applicable, may assume that such Bank has made such portion available to it on the date of such A Borrowing in accordance with SUBSECTION (b) of this SECTION 2.02 and it may, in reliance upon such assumption, make (but shall not be required to make) available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Bank shall not have so made such ratable portion available to the Agent or the Euro-Agent, as applicable, such Bank and such Borrower severally agree to repay to the Agent or Euro-Agent, as applicable, forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent or the Euro-Agent, as applicable, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Bank, the Federal Funds Rate or the Agent's overdraft cost, if higher. If such Bank shall repay to the Agent or Euro-Agent, as applicable, such corresponding amount, such amount so repaid shall constitute such Bank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the A Advance to be made by such other Bank on the date of any A Borrowing.
SECTION 2.02A. TERMS OF LOCAL CURRENCY FACILITIES. (a) Each of the Company and one or more Local Currency Banks may in its discretion from time to time agree that the Company and/or one or more Borrowing Subsidiaries may borrow Local Currency Advances on a revolving basis from any one or more Local Currency Banks by delivering a Local Currency Addendum (through the Agent), executed by the Company, the Local Currency Agent, each such Borrowing Subsidiary and each such Local Currency Bank; PROVIDED, HOWEVER, that on the date of such Local Currency Addendum (i) an exchange rate with respect to the Alternative Currency covered by such Local Currency Addendum shall be determinable by reference to the Reuters currency pages (or comparable publicly available screen) and (ii) no Default or Event of Default shall have occurred and be continuing. The Company, each Borrowing Subsidiary and, by agreeing to any Local Currency Addendum, each relevant Local Currency Bank, acknowledges and agrees that each reference in this Agreement to any Bank shall, to the extent applicable, be deemed to be a reference to such Local Currency Bank, subject to the second sentence of the definition of such term. In order to establish a Local Currency Facility, the Company shall advise each Bank of its desire to establish such facility, either directly or through the Agent, and shall discuss with any Bank expressing an interest in becoming a Local Currency Bank under the proposed Local Currency Facility the proposed terms thereof and the potential participation of such Bank therein. The participation of any Bank desiring to participate in a Local Currency Facility is at the sole discretion of the Company.
(b) Each Local Currency Addendum shall set forth (i) the maximum amount (expressed in Dollars and without duplication) available to be borrowed from all Local Currency Banks under such Local Currency Addendum (a "LOCAL CURRENCY FACILITY AGGREGATE COMMITMENT") and (ii) with respect to each Local Currency Bank party to such Local Currency Addendum, the maximum amount (expressed in Dollars and without duplication) available to be borrowed from such Local Currency Bank thereunder (a "LOCAL CURRENCY COMMITMENT"). In no event shall the aggregate of all Local Currency Commitments in respect of any Local Currency Bank at any time exceed such Bank's Commitment. Except as provided herein or therein, the making of Local Currency Advances by a Local Currency Bank under a Local Currency Addendum shall under no circumstances reduce the amount available to be borrowed from such Bank under any other Local Currency Addendum to which such Bank is a party. Each Local Currency Addendum may also set forth eligibility criteria for any Local Currency Banks to be Eligible Local Currency Banks thereunder.
(c) Except as otherwise required by applicable law, in no event shall the Local Currency Banks have the right to accelerate the Local Currency Advances outstanding under any Local Currency Addendum or to terminate their commitments (if any) thereunder to make Local Currency Advances prior to the stated termination date in respect thereof, except that such Local Currency Banks shall, in each case, have such rights upon an acceleration of the Advances and a termination of the Commitments pursuant to ARTICLE VI, respectively. No Local Currency Advance may be made if, (i) the outstanding Committed Advances of any Bank would exceed such Bank's Commitment, (ii) the aggregate principal amount of outstanding Local Currency
Advances would exceed the applicable Local Currency Facility Aggregate Commitment or (iii) the sum of the aggregate Committed Advances and the aggregate B Advances would exceed the Total Commitment.
(d) The applicable Borrower and the applicable Local Currency Banks, or, if so specified in the relevant Local Currency Addendum, the Local Currency Agent acting on their behalf, shall furnish to the Agent, promptly following the making, payment or prepayment of each Local Currency Advance, and at any other time at the reasonable request of the Agent, a statement setting forth the outstanding Local Currency Advances made under such Local Currency Addendum.
(e) The relevant Borrowing Subsidiary or the Company shall furnish to the Agent copies of any amendment, supplement or other modification to the terms of any Local Currency Addendum promptly after the effectiveness thereof.
(f) The Company may terminate any Local Currency Addendum in its sole discretion if there are not any Advances outstanding thereunder, by written notice to the Agent and the Local Currency Agent, which notice shall be executed by the Company, each relevant Borrowing Subsidiary and, if their consent is required, each such Local Currency Bank.
SECTION 2.02B. MAKING THE LOCAL CURRENCY ADVANCES. (a) Each Local Currency Borrowing shall be made on notice given by the Company (on behalf of itself or the applicable Borrowing Subsidiary) to the applicable Local Currency Agent, with copies to the Agent and the Euro-Agent, made at the time specified in the applicable Local Currency Addendum. The applicable Local Currency Agent shall give each applicable Local Currency Bank prompt notice thereof by telecopy, telex or cable. Each such notice of a Local Currency Borrowing (a "NOTICE OF LOCAL CURRENCY BORROWING") shall be by telecopy, telex or cable, confirmed immediately in writing, in substantially the form of EXHIBIT B-4 hereto, specifying therein the requested (i) Borrower, (ii) date of such Local Currency Borrowing, (iii) Type of Advances comprising such Local Currency Borrowing, (iv) in the case of a proposed Local Currency Borrowing comprised of Eurocurrency Advances or other Fixed Rate Advances, initial Interest Period for each such Advance and (v) aggregate amount of such Local Currency Borrowing. The Company shall certify, in each Notice of Local Currency Borrowing, the Credit Ratings, if any, then in effect. The Company shall request, within one-half hour prior to the issuance of the applicable Notice of Local Currency Borrowing, the advice of the Local Currency Agent as to the applicable exchange rate then in effect with respect to such Alternative Currency, and the Company shall specify in such Notice of Local Currency Borrowing the exchange rate so advised to it by the Local Currency Agent. In the case of a proposed Local Currency Borrowing comprised of Fixed Rate Advances, the Local Currency Agent shall promptly notify each Bank and the Company of the applicable interest rate under the Local Currency Addendum.
(b) Subject to any alternative procedures set forth in the applicable Local Currency Addendum, each Local Currency Bank, for the account of its Applicable Lending Office, shall make such Local Currency Bank's ratable portion of such Local Currency
Borrowing on the proposed date thereof by wire transfer of immediately available funds to the applicable Local Currency Agent by the time specified in the Local Currency Addendum or Notice of Local Currency Borrowing, and the Local Currency Agent shall make such funds available to the applicable Borrower at the applicable Payment Office.
(c) Each Notice of Local Currency Borrowing shall be irrevocable and binding on the Borrower on whose behalf it shall have been submitted. In the case of any Local Currency Borrowing which the related Notice of Local Currency Borrowing specifies is to be comprised of Eurocurrency Advances or other Fixed Rate Advances, the applicable Borrower shall indemnify each applicable Local Currency Bank against any loss, cost or expense reasonably incurred by such Bank as a result of any failure to fulfill on or before the date specified in such Notice of Local Currency Borrowing for such Local Currency Borrowing the applicable conditions set forth in ARTICLE III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the Local Currency Advance to be made by such Bank as part of such Local Currency Borrowing when such Local Currency Advance, as a result of such failure, is not made on such date.
(d) Unless the applicable Local Currency Agent shall have received
notice from a Local Currency Bank prior to the date of any Local Currency
Borrowing that such Bank will not make available to the Local Currency Agent
such Bank's ratable portion of such Local Currency Borrowing, the Local Currency
Agent may assume that such Bank has made such portion available to it on the
date of such Local Currency Borrowing in accordance with SUBSECTION (b) of this
SECTION 2.02B and it may, in reliance upon such assumption, make (but shall not
be required to make) available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such ratable portion available to the Local Currency Agent, such Bank and such
Borrowing Subsidiary severally agree to repay to the Local Currency Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such Borrowing
Subsidiary until the date such amount is repaid to the Local Currency Agent at
(i) in the case of such Borrowing Subsidiary, the interest rate applicable at
the time to Local Currency Advances comprising such Local Currency Borrowing and
(ii) in the case of such Bank, the Federal Funds Rate or the Agent's overdraft
cost, if higher. If such Bank shall repay to the Local Currency Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Local
Currency Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the Advance to be made by it as part of any Local Currency Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its Local Currency Advance on the date of such Local Currency Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Local Currency Advance to be made by such other Bank on the date of any Local Currency Borrowing.
SECTION 2.03. THE B ADVANCES. (a) Each Bank severally agrees that the Company and any Borrowing Subsidiary may make B Borrowings under this SECTION 2.03 from time to time on any Business Day during the period from the date hereof until the date occurring
15 days prior to the Termination Date in the manner set forth below; provided that, following the making of each B Borrowing, the aggregate amount (determined in Dollars) of the Advances then outstanding shall not exceed the aggregate amount of the Commitments of the Banks (computed without regard to any B Reduction).
(b) The procedures for the solicitation and acceptance of B Advances to be denominated in Dollars are set forth below:
(i) The Company (on behalf of itself or any Borrowing Subsidiary) may request a B Borrowing denominated in Dollars under this SECTION 2.03(b) by delivering to the Agent, by telecopier, telex or cable, confirmed immediately in writing, a Notice of B Borrowing, identifying the applicable Borrower and specifying the date and aggregate amount of the proposed B Borrowing, the maturity date for repayment of each B Advance to be made as part of such B Borrowing (which maturity date may not be earlier than the date occurring 15 days after the date of such B Borrowing or later than the Termination Date), the interest payment date or dates relating thereto, and any other terms to be applicable to such B Borrowing, not later than 10:00 A.M. (New York City time) (A) one Business Day prior to the date of the proposed B Borrowing, if the Company shall specify in the Notice of B Borrowing that the rates of interest to be offered by the Banks shall be fixed rates per annum (such type of solicitation being a "FIXED RATE AUCTION") and (B) three Business Days prior to the date of the proposed B Borrowing, if the Company shall instead specify in the Notice of B Borrowing an index or other basis to be used by the Banks in determining the rates of interest to be offered by them (such type of solicitation being an "INDEXED RATE AUCTION"). The Company shall, in addition, certify in each Notice of B Borrowing the Credit Ratings, if any, then in effect. The Agent shall, promptly following its receipt of a Notice of B Borrowing under this SECTION 2.03(b), notify each Bank of such request by sending such Bank a copy of such Notice of B Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more B Advances to the applicable Borrower as part of such proposed B Borrowing at a rate or rates of interest specified by such Bank in its sole discretion, by notifying the Agent (which shall give prompt notice thereof to the Company), before 10:00 A.M. (New York City time) (A) on the date of such proposed B Borrowing, in the case of a Fixed Rate Auction, and (B) two Business Days before the date of such proposed B Borrowing, in the case of an Indexed Rate Auction, of the minimum amount and maximum amount of each B Advance which such Bank would be willing to make as part of such proposed B Borrowing (which amounts may, subject to the proviso to the first sentence of SECTION 2.03(a), exceed such Bank's Commitment), the rate or rates of interest therefor and such Bank's Applicable Lending Office with respect to such B Advance; PROVIDED that if the Agent in its capacity as a Bank shall, in its sole discretion, elect to make any such offer, it shall notify
the Company of such offer before 9:00 A.M. (New York City time) on the date on which notice of such election is to be given to the Agent by the other Banks.
(iii) The Company shall, in turn, before 11:00 A.M. (New York City time) (A) on the date of such proposed B Borrowing, in the case of a Fixed Rate Auction, and (B) two Business Days before the date of such proposed B Borrowing, in the case of an Indexed Rate Auction, either:
(x) cancel such B Borrowing by giving the Agent notice to that effect, or
(y) accept (on behalf of the applicable Borrower), subject
to SECTION 2.03(e), one or more of the offers made by any Bank or
Banks pursuant to PARAGRAPH (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each B Advance (which
amount shall be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to the Company by the
Agent on behalf of such Bank for such B Advance pursuant to PARAGRAPH
(ii) above) to be made by each Bank as part of such B Borrowing, and
reject any remaining offers made by Banks pursuant to PARAGRAPH (ii)
above by giving the Agent notice to that effect.
(iv) If the Company notifies the Agent that such B Borrowing is cancelled pursuant to PARAGRAPH (iii)(x) above, the Agent shall give prompt notice thereof to the Banks and such B Borrowing shall not be made.
(v) If the Company accepts (on behalf of the applicable Borrower) one
or more of the offers made by any Bank or Banks pursuant to
PARAGRAPH (iii)(y) above, the Agent shall in turn promptly notify
(A) each Bank that has made an offer as described in paragraph
(ii) above of the date and aggregate amount of such B Borrowing
and whether or not any offer or offers made by such Bank pursuant
to paragraph (ii) above have been accepted by the Company, (B)
each Bank that is to make a B Advance as part of such B
Borrowing, of the amount of each B Advance to be made by such
Bank as part of such B Borrowing, and (C) each Bank that is to
make a B Advance as part of such B Borrowing, upon receipt, that
the Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in ARTICLE III. Each Bank
that is to make a B Advance as part of such B Borrowing shall,
before 12:00 noon (New York City time) on the date of such B
Borrowing specified in the notice received from the Agent
pursuant to clause (A) of the preceding sentence or any later
time when such Bank shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Agent at
the Payment Office such Bank's portion of such B Borrowing, in
same day funds. Upon
fulfillment of the applicable conditions set forth in ARTICLE III and after receipt by the Agent of such funds, the Agent will make such funds available to the applicable Borrower at the Agent's aforesaid address. Promptly after each B Borrowing the Agent will notify each Bank of the amount of the B Borrowing, the consequent B Reduction and the dates upon which such B Reduction commenced and will terminate.
(c) The procedures for the solicitation and acceptance of B Advances to be denominated in an Alternative Currency are set forth below:
(i) The Company (on behalf of itself or any Borrowing Subsidiary) may
request a B Borrowing denominated in an Alternative Currency under this
SECTION 2.03(c) by delivering to the Euro-Agent, by telecopier, telex or
cable, confirmed immediately in writing, a Notice of a B Borrowing
identifying the applicable Borrower and specifying the date and aggregate
amount of the proposed B Borrowing, the maturity date for repayment of each
B Advance to be made as part of such B Borrowing (which maturity date may
not be earlier than the date occurring 15 days after the date of such B
Borrowing or later than the Termination Date), the interest payment date or
dates relating thereto, the requested Alternative Currency and any other
terms to be applicable to such B Borrowing, not later than 4:00 P.M.
(London time) four Business Days prior to the date of the proposed B
Borrowing. Each solicitation made under this SUBSECTION (c) shall
contemplate an Indexed Rate Auction. The Company shall request, within
one-half hour prior to the issuance of a Notice of B Borrowing under this
SECTION 2.03(c), the advice of the Euro-Agent as to the exchange rate then
in effect with respect to the applicable Alternative Currency, and the
Company shall specify in such Notice of B Borrowing the exchange rate so
advised to it by the Euro-Agent. The Company shall, in addition, certify in
each Notice of B Borrowing the Credit Ratings, if any, then in effect. The
Euro-Agent shall, promptly following its receipt of a Notice of B Borrowing
under this SECTION 2.03(c), notify each Bank of such request by sending
such Bank a copy of such Notice of B Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more B Advances to the applicable Borrower as part of such proposed B Borrowing in the requested Alternative Currency and at a rate or rates of interest specified by such Bank in its sole discretion, by notifying the Euro-Agent (which shall give prompt notice thereof to the Company), before Noon (London time) three Business Days before the date of such proposed B Borrowing, of the minimum amount and maximum amount of each B Advance which such Bank would be willing to make as part of such proposed B Borrowing (which amounts may, subject to the proviso to the first sentence of SECTION 2.03(a), exceed such Bank's Commitment), the rate or rates of interest therefor and such Bank's Applicable Lending Office with respect to such B Advance; PROVIDED that if the Euro-Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Company of such offer before 11:30 A.M. (London time) on the date on which notice of such election is to be given to the Euro-Agent by the other Banks.
(iii) The Company shall, in turn, before 4:00 P.M. (London time) three Business Days before the date of such proposed B Borrowing either:
(x) cancel such B Borrowing by giving the Euro-Agent notice to that effect, or
(y) accept (on behalf of the applicable Borrower), subject to SECTION 2.03(e), one or more of the offers made by any Bank or Banks pursuant to PARAGRAPH (ii) above, in its sole discretion, by giving notice to the Euro-Agent of the amount of each B Advance (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Company by the Euro-Agent on behalf of such Bank for such B Advance pursuant to PARAGRAPH (ii) above) to be made by each Bank as part of such B Borrowing, and reject any remaining offers made by Banks pursuant to PARAGRAPH (ii) above by giving the Euro-Agent notice to that effect.
(iv) If the Company notifies the Euro-Agent that such B Borrowing is cancelled pursuant to PARAGRAPH (iii)(x) above, the Euro-Agent shall give prompt notice thereof to the Banks and such B Borrowing shall not be made.
(v) If the Company accepts (on behalf of the applicable Borrower) one
or more of the offers made by any Bank or Banks pursuant to PARAGRAPH
(iii)(y) above, the Euro-Agent shall in turn promptly notify (A) each Bank
that has made an offer as described in paragraph (ii) above of the
Borrower, Alternative Currency, date and aggregate amount of such B
Borrowing and whether or not any offer or offers made by such Bank pursuant
to paragraph (ii) above have been accepted by the Company, (B) each Bank
that is to make a B Advance as part of such B Borrowing, of the amount of
each B Advance to be made by such Bank as part of such B Borrowing, and (C)
each Bank that is to make a B Advance as part of such B Borrowing, upon
receipt, that the Euro-Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in ARTICLE III. Each Bank that
is to make a B Advance as part of such B Borrowing shall, before 12:00 noon
(London time) on the date of such B Borrowing specified in the notice
received from the Euro-Agent pursuant to clause (A) of the preceding
sentence or any later time when such Bank shall have received notice from
the Euro-Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Euro-Agent at the Payment Office for the applicable Alternative Currency
such Bank's portion of such B Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in ARTICLE III and after
receipt by the Euro-Agent of such funds, the Euro-Agent will make
such funds available to the applicable Borrower at the Euro-Agent's aforesaid address. Promptly after each B Borrowing the Euro-Agent will notify each Bank of the Borrower, Alternative Currency and amount of the B Borrowing, the consequent B Reduction and the dates upon which such B Reduction commenced and will terminate.
(d) Each B Borrowing shall, (i) in the case of a B Borrowing to be denominated in Dollars, be in an aggregate amount not less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof (ii) in the case of a B Borrowing to be denominated in an Alternative Currency, be in such minimum amount as shall be advised by the Euro-Agent as being appropriate in light of the prevailing market conditions and conventions at the time notice is given pursuant to SECTION 2.03(c)(i), and, following the making of each B Borrowing, the Borrowers shall be in compliance with the limitation set forth in the proviso to the first sentence of SUBSECTION (a) above.
(e) Each acceptance by the Company pursuant to SECTION 2.03(b)
(iii)(y) or SECTION 2.03(c)(iii)(y) of the offers made in response to a Notice
of B Borrowing shall be treated as an acceptance of such offers in ascending
order of the rates or margins, as applicable, at which the same were made but
if, as a result thereof, two or more offers at the same such rate or margin
would be partially accepted, then the amounts of the B Advances in respect of
which such offers are accepted shall be treated as being the amounts which bear
the same proportion to one another as the respective amounts of the B Advances
so offered bear to one another but, in each case, rounded as the Euro-Agent may
consider necessary to ensure that the amount of each such B Advance is $500,000
(or, if the currency in which such B Advance is denominated is an Alternative
Currency, such comparable and convenient multiple thereof as the Euro-Agent
shall consider appropriate for the purpose) or an integral multiple thereof.
(f) Within the limits and on the conditions set forth in this SECTION 2.03, each Borrower may from time to time borrow under this SECTION 2.03, repay pursuant to SUBSECTION (g) below, and reborrow under this SECTION 2.03.
(g) Each Borrower shall repay to the Agent for the account of each Bank which has made a B Advance to it or (if different) for the account of the holder of the applicable B Note, on the maturity date of each B Advance (such maturity date being that specified by the Company for repayment of such B Advance in the related Notice of B Borrowing and provided in the B Note evidencing such B Advance), the then unpaid principal amount of such B Advance. No Borrower shall have any right to prepay any principal amount of any B Advance unless, and then only on the terms, specified by the Company for such B Advance in the related Notice of B Borrowing and set forth in the B Note evidencing such B Advance.
(h) Each Borrower shall pay interest on the unpaid principal amount of each B Advance made to it, from the date of such B Advance to the date the principal amount of such B Advance is repaid in full, at the rate of interest for such B Advance specified by the Bank making such B Advance in the related notice submitted by such Bank pursuant to SECTION 2.03(b)(ii) or SECTION 2.03(c)(ii), as applicable, payable on the interest payment date or dates
specified by the Company for such B Advance in such Notice of B Borrowing, in each case as provided in the B Note evidencing such B Advance. In the event the term of any B Advance shall be longer than three months, interest thereon shall be payable not less frequently than once each three-month period during such term.
(i) The indebtedness of each Borrower resulting from each B Advance made to it shall be evidenced by a separate B Note of such Borrower payable to the order of the Bank making such B Advance.
SECTION 2.04. FEES.
(a) FACILITY FEE. The Company agrees to pay each Bank a facility fee at the respective rate per annum set forth below on such Bank's average daily Commitment (irrespective of usage and without giving effect to any B Reduction) from the date hereof until the Termination Date, payable on the last day of each March, June, September and December during the term of such Bank's Commitment, commencing December 31, 2000, and on the Termination Date. The facility fee in respect of any period shall be determined on the basis of the Credit Ratings in effect during such period, in accordance with the table set forth below. The rate per annum at which such facility fee is calculated shall change when and as any Credit Rating changes.
Credit Rating Facility Fee
------------- ------------
(Rate per annum)
A or better (S&P) OR 0.07%
A2 or better (Moody's)
Below A (S&P) and A2 (Moody's)
but
A- (S&P) OR 0.08%
A3 (Moody's)
Below A- (S&P) and A3 (Moody's)
but 0.09%
BBB+ (S&P) OR
Baa1 (Moody's)
Below BBB+ (S&P) and Baa1 (Moody's)
but 0.11%
BBB (S&P) OR
Baa2 (Moody's)
Below BBB (S&P) and Baa2 (Moody's) 0.15%
but
BBB- (S&P) AND Baa3 (Moody's)
Below BBB- (S&P) or Baa3 (Moody's) 0.20%
|
If, during any period, the Company shall not have Credit Ratings from both
S&P and Moody's, the Credit Rating of the Company for purposes of this
SECTION 2.04(a) shall be deemed to be below BBB- (S&P) and below Baa3
(Moody's) during such period. In addition, and notwithstanding the
foregoing chart, if the Credit Rating of the Company from S&P is more than
one level higher or lower than the equivalent Credit Rating of the Company
from Moody's at such time, then the facility fee rate shall be determined
as if the applicable Credit Rating of the Company from each of S&P and
Moody's were one level higher than the lower of the two Credit Ratings.
(b) UTILIZATION FEE. For each day on which the aggregate outstanding principal amount of the Advances exceeds 50% of the aggregate amount of the Commitments, a utilization fee (the "UTILIZATION FEE") (in addition to all other interest and fees payable with respect to the Advances) will accrue on each outstanding Advance at a rate equal to 0.10% per annum (computed daily on the basis of a three hundred sixty (360) day year and actual days elapsed). The Utilization Fee will be payable, when applicable, with respect to each applicable Advance, on each date that interest is payable with respect to such Advance.
(c) AGENCY FEE. The Company agrees to pay to the Agent and the Euro-Agent for the Australian Local Currency Facility those fees as are described in that certain letter agreement dated November 9, 2000 (as the same may from time to time be amended, supplemented, restated or otherwise modified), when and as the same shall become due and payable by the Company as provided therein.
SECTION 2.05. REDUCTION OF THE COMMITMENTS; INCREASED COMMITMENTS; ADDITIONAL BANKS.
(a) The Company shall have the right, upon at least three Business Days' notice to the Agent, to terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Banks; PROVIDED, that the aggregate amount of the Commitments of the Banks shall not be reduced to an amount which is less than the aggregate principal amount of the B Advances then outstanding; and PROVIDED, FURTHER, that each partial reduction shall be in the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) The Company may, upon at least thirty (30) days notice to the Agent (which shall promptly provide a copy of such notice to the Banks), propose to increase the aggregate amount of the Commitments by an amount not to exceed $50,000,000 (the amount of any such increase, the "INCREASED COMMITMENTS"). The Company shall be entitled to have the aggregate Commitments increased pursuant to this Section only once. Each Bank party to this Agreement at such time shall have the right (but no obligation), for a period of fifteen (15) days following receipt of such notice, to elect by notice to the Company and the Agent to increase its Commitment by a principal amount which bears
the same ratio to the Increased Commitments as its then Commitment bears to the aggregate Commitments then existing.
(c) If any Bank party to this Agreement shall not elect to increase its Commitment pursuant to SUBSECTION (b) of this Section, the Company may designate another lender or other lenders (which may be, but need not be, one or more of the existing Banks) which at the time agree to (i) in the case of any such lender that is an existing Bank, increase its Commitment and (ii) in the case of any other such lender (an "ADDED BANK"), become a party to this Agreement. The sum of the increases in the Commitments of the existing Banks pursuant to this SUBSECTION (c) plus the Commitments of the Added Banks shall not in the aggregate exceed the unsubscribed amount of the Increased Commitments.
(d) An increase in the aggregate amount of the Commitments pursuant to this SECTION 2.05 shall become effective upon the receipt by the Agent of an Increase Agreement signed by the Company, by each Added Bank, and by each other Bank whose Commitment is to be increased (each such Bank, an "INCREASING BANK"), setting forth the new Commitments of such Banks and setting forth the agreement of each Added Bank to become a party to this Agreement and to be bound by all the terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Company with respect to the Increased Commitments and such opinions of counsel for the Company with respect to the Increased Commitments as set forth in the Increase Agreement. Once the Increase Agreement has been executed and delivered by the applicable parties, this Agreement shall be deemed to be amended to reflect the increase in Commitments provided for therein notwithstanding the provisions of SECTION 9.01.
By executing and delivering an Increase Agreement, each Increasing Bank and each Added Bank confirms to and agrees with each party hereto as follows: (i) neither the Agent nor any Bank makes any representation or warranty, nor assumes any responsibility with respect to, any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (ii) neither the Agent nor any Bank makes any representation or warranty, nor assumes any responsibility with respect to, the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto.
Within five (5) Business Days after execution of an Increase Agreement, the Company, at its own expense, shall execute and deliver to the Agent a new A Note to the order of each Added Bank and, if requested by any Increasing Bank, to such Increasing Bank. Such new A Note or Notes shall be dated the effective date of such Increase Agreement and shall otherwise be in substantially the form of EXHIBIT A-1 hereto.
(e) If there are any A Advances outstanding on the effective date of any Increase Agreement, each Bank other than an Added Bank or an Increasing Bank (each such Bank an "ASSIGNING BANK") agrees that it will assign to each Added Bank and Increasing Bank such portion of such Assigning Bank's rights and obligations under this Agreement as shall be necessary to cause each Added Bank and Increasing Bank to share ratably (based on the proportion that such Added Bank's or Increasing Bank's Commitment bears to the Total Commitment after giving effect to the Increase Agreement) in each such A Advance. Such assignments shall be effected by execution and delivery by the applicable Assigning Banks, Added Banks or Increasing Banks of Assignments and Acceptances. In consideration of such assignments, each Added Bank and Increasing Bank shall before 12:00 noon (New York City time) on the effective date of the Increase Agreement, make available for the account of its Applicable Lending Office to the Agent at its address referred to in SECTION 9.02, in same day funds, such Added Bank's or Increasing Bank's ratable portion (based on (1) the proportion that such Added Bank's Commitment or the increase in such Increasing Bank's Commitment bears to the Total Commitment after giving effect to the Increase Agreement) of each A Borrowing then outstanding, together with an amount equal to such ratable portion of the interest which has accrued to such date and remains unpaid on such A Advances. After the Agent's receipt of such funds, the Agent will promptly make such same day funds available to the account of each Assigning Bank in an amount equal to such Assigning Bank's ratable portion of such payment by the Added Banks and Increasing Banks.
SECTION 2.06. REPAYMENT OF COMMITTED ADVANCES. Except as otherwise
provided in SECTION 2.13, each Borrower shall repay on the Termination Date the
principal amount of each A Advance made to it. Except as otherwise specified in
SECTION 2.13, each Borrower shall repay on the Termination Date (or on any
earlier date specified in the Local Currency Addendum relating to such Local
Currency Advance) the principal amount of each Local Currency Advance made to
it.
SECTION 2.07. INTEREST ON COMMITTED ADVANCES. Each Borrower shall pay interest on the unpaid principal amount of each Committed Advance made by each Bank to such Borrower from the date of such Committed Advance until such principal amount shall be paid in full, at the following rates per annum:
(a) BASE RATE ADVANCES. If such Committed Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in effect from time to time, payable monthly on the tenth day of each month and on the date such Base Rate Advance shall be paid in full; PROVIDED, that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to 2% per annum above the Base Rate in effect from time to time. The Agent shall provide telephonic notice to the Company (which in turn shall advise the applicable Borrower) of the amount of interest due and payable on Base Rate Advances by a date not later than the date such payment is due; PROVIDED, HOWEVER, that the Agent's failure to give such notice shall not discharge the applicable Borrower from
the payment of interest but shall only delay the due date of such interest until such telephonic notice is given.
(b) ADJUSTED CD RATE ADVANCES. If such Committed Advance is an
Adjusted CD Rate Advance, a rate per annum equal at all times during
the Interest Period for such A Advance to the sum of the Adjusted CD
Rate for such Interest Period for such Advance plus the Applicable CD
Rate Margin, payable on the last day of such Interest Period and, if
such Interest Period has a duration of more than 90 days, on each day
which occurs during such Interest Period every 90 days from the first
day of such Interest Period; PROVIDED that any amount of principal
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which
such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to 2% per annum above
(x) if the originally scheduled Interest Period shall then be in
effect, the sum of the Adjusted CD Rate plus the Applicable CD Rate
Margin then in effect with respect to such A Advance, and (y) in all
other cases, the Base Rate in effect from time to time. "APPLICABLE CD
RATE MARGIN" means, in respect of any Adjusted CD Rate Advance, a rate
per annum determined as of the first day of the Interest Period for
such Adjusted CD Rate Advance in reference to the table set forth
below on the basis of the Credit Ratings at such time.
Applicable CD Rate
Margin
Credit Rating (Rate Per Annum)
------------- ------------------
A or better (S&P) OR
A2 or better (Moody's) 0.280%
Below A (S&P) and A2
(Moody's) but
A- (S&P) OR A3 (Moody's) 0.290%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR Baa1 (Moody's) 0.335%
Below BBB+ (S&P) and Baa1 (Moody's)
but
BBB (S&P) OR Baa2 (Moody's) 0.390%
Below BBB (S&P) and Baa2 (Moody's)
but
BBB- (S&P) AND Baa3 (Moody's) 0.475%
Below BBB- (S&P) OR Baa3 (Moody's) 0.625%
|
If, on the first day of the Interest Period for any Adjusted CD Rate Advance, the Company shall not have Credit Ratings from both S&P and Moody's, the Credit Ratings
of the Company for purposes of this SECTION 2.07(b) shall be deemed to be below BBB- (S&P) and below Baa3 (Moody's) during such period. In addition, and notwithstanding the foregoing chart, if the Credit Rating of the Company from S&P is more than one level higher or lower than the equivalent Credit Rating from Moody's at such time, then the Applicable CD Rate Margin shall be determined as if the applicable Credit Rating of the Company from each of S&P and Moody's were one level higher than the lower of the two Credit Ratings.
(c) EUROCURRENCY ADVANCES. If such Committed Advance is a
Eurocurrency Advance, a rate per annum equal at all times during the
Interest Period for such Committed Advance to the sum of the
Eurocurrency Rate for such Interest Period plus the Applicable
Eurocurrency Margin, payable on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months,
on each day which occurs during such Interest Period every three
months from the first day of such Interest Period; PROVIDED that any
amount of principal which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to 2% per
annum above (x) if the originally scheduled Interest Period shall then
be in effect, the sum of the Eurocurrency Rate plus the Applicable
Eurocurrency Margin then in effect with respect to such A Advance, and
(y) in all other cases, the Base Rate in effect from time to time.
"APPLICABLE EUROCURRENCY MARGIN" means, in respect of any Eurocurrency
Advance (unless such Eurocurrency Advance is a Local Currency Advance
and the applicable Local Currency Addendum specifies a different
Applicable Margin or Margins), a rate per annum determined as of the
first day of the Interest Period for such Eurocurrency Advance in
reference to the table set forth below on the basis of the Credit
Ratings at such time.
Applicable
Eurocurrency Margin
Credit Rating (Rate per Annum)
------------- -------------------
A or better (S&P) OR
A2 or better (Moody's) 0.155%
Below A (S&P) and A2 (Moody's)
but
A- (S&P) OR
A3 (Moody's) 0.165%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR
Baa1 (Moody's) 0.210%
Below BBB+ (S&P) and Baa1 (Moody's)
|
but BBB (S&P) OR Baa2 (Moody's) 0.265% Below BBB (S&P) and Baa2 (Moody's) but BBB- (S&P) AND Baa3 (Moody's) 0.350% Below BBB- (S&P) OR Baa3 (Moody's) 0.500% |
If, on the first day of the Interest Period for any Eurocurrency
Advance, the Company shall not have Credit Ratings from both S&P and
Moody's, the Credit Ratings of the Company, for purposes of this
SECTION 2.07(b), shall be deemed to be below BBB- (S&P) and below Baa3
(Moody's) during such period. In addition, and notwithstanding the
foregoing chart, if the Credit Rating of the Company from S&P is more
than one level higher or lower than the equivalent Credit Rating of
the Company from Moody's at such time, then the Applicable
Eurocurrency Margin shall be determined as if the Credit Rating of the
Company from each of S&P and Moody's were one level higher than the
lower of the two Credit Ratings.
(d) LOCAL CURRENCY ADVANCES OTHER THAN EUROCURRENCY ADVANCES. If
such Advance is a Local Currency Advance other than a Eurocurrency
Advance, a rate per annum calculated in the manner specified in the
applicable Local Currency Addendum, payable on the dates specified in
such Local Currency Addendum.
SECTION 2.08. ADDITIONAL INTEREST ON EUROCURRENCY ADVANCES. Each
Borrower shall pay to each Bank, so long as such Bank (or Citibank, in the case
of Eurocurrency Advances of Citicorp) shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurocurrency Advance made by such Bank to such Borrower, from the date of such
Committed Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurocurrency Rate for the Interest Period for such Committed Advance from
(ii) the rate obtained by dividing such Eurocurrency Rate by a percentage equal
to 100% minus the Eurocurrency Rate Reserve Percentage of such Bank for such
Interest Period, payable on each date on which interest is payable on such
Committed Advance. Such additional interest so notified to the Company (which in
turn shall advise the applicable Borrower) by any Bank shall be payable to the
Agent (or, in the case of (a) any A Advance which is a Eurocurrency Advance
denominated in an Alternative Currency, the Euro-Agent, or (b) any Local
Currency Advance, the applicable Local Currency Agent) for the account of such
Bank on the dates specified for payment of interest for such Advance in SECTION
2.07.
SECTION 2.09. INTEREST RATE DETERMINATION.
(a) Each Reference Bank agrees to furnish to the Agent (in the case of Adjusted CD Rate Advances and A Advances which are Eurocurrency Advances denominated in Dollars), the Euro-Agent (in the case of A Advances which are Eurocurrency Advances denominated in any Alternative Currency) and the applicable Local Currency Agent (in the case of Local Currency Advances which are Eurocurrency Advances) timely information for the purpose of determining each Adjusted CD Rate or Eurocurrency Rate, as applicable. The Agent, Euro-Agent and Local Currency Agent, as applicable, shall give prompt notice to the Company (which in turn shall advise the applicable Borrower) and the Banks of the applicable interest rate determined by the Agent for purposes of SECTION 2.07(a), (b) or (c), and the applicable rate, if any, furnished by each Reference Bank for the purpose of determining the applicable interest rate under SECTION 2.07(b) or (c), as applicable.
(b) If the Agent, the Euro-Agent or a Local Currency Agent shall, at least one Business Day before the date of any requested Committed Borrowing or the Conversion, Redenomination or continuation of any Committed Borrowing, notify the Company and the Banks that less than two of the Reference Banks shall have failed to furnish timely information to the Agent for determining the Adjusted CD Rate for any Adjusted CD Rate Advances, or the Eurocurrency Rate for any Eurocurrency Advances denominated in a particular currency, the Agent shall forthwith notify the Company and the Banks that the interest rate cannot be determined for such Adjusted CD Rate Advances or Eurocurrency Advances, as the case may be, whereupon
(i) each such Advance will automatically, on the last day of the then outstanding Interest Period therefor, Convert into or be Redenominated as, and with respect to a requested Committed Borrowing Advance as part of a requested Committed Borrowing, such Advance shall be, a Eurocurrency Advance denominated in Dollars, or, if the request was for Adjusted CD Rate Advances, or if the affected currency is Dollars, as applicable, a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance) or if the request was for a Local Currency Advance at the Eurocurrency Rate, a Floating Rate Advance bearing interest at such other rate as may be specified in such event in any applicable Local Currency Addendum, and
(ii) the rights of the Borrowers to select, and the obligation of the Banks to make, or to Convert Advances into or Redenominate or continue Advances as, Adjusted CD Rate Advances or Eurocurrency Advances in such currency, as the case may be, shall be suspended until the Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist.
(c) If, with respect to any Eurocurrency Advances or Local Currency Advances bearing interest at a Fixed Rate (unless the applicable Local Currency Addendum has provided that this Section shall not apply to Local Currency Advances under such Local Currency Addendum), the Majority Banks (or in the case of Local Currency Advances,
the Majority Local Currency Banks under the applicable Local Currency Addendum) shall at least one Business Day before the requested date of, or the proposed Conversion, Redenomination or continuation of the Advances comprising all or part of, any Committed Borrowing, notify the Agent that the Eurocurrency Rate (or any other requested Fixed Rate in the case of Local Currency Advances) for any Interest Period for such Advances in a particular currency will not adequately reflect the cost to such Majority Banks (or Majority Local Currency Banks, as applicable) of making, funding or maintaining their respective Eurocurrency Advances or Local Currency Advances bearing interest at a Fixed Rate for such Interest Period, the Agent shall forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance or Local Currency Advance will automatically, on the last day of the then existing Interest Period therefor, Convert or be Redenominated into or continued as, and with respect to a requested Committed Advance as part of a requested Committed Borrowing, such Advance shall be, a Eurocurrency Advance denominated in Dollars (or, if the affected currency is Dollars, a Base Rate Advance) or, if the request was for a Local Currency Advance at a Fixed Rate, a Floating Rate Advance bearing interest at such other rate as may be specified in such event in any applicable Local Currency Addendum, and
(ii) the rights of the Borrowers to select, and the obligation of the Banks to make, or to Convert Advances into, or Redenominate or continue Advances as, Eurocurrency Advances in such currency or Local Currency Advances as such Fixed Rate Advances shall be suspended until the Majority Banks have notified the Agent and the Agent shall notify the Company and the Banks that the circumstances causing such suspension no longer exist.
(d) If any Bank shall, not later than 10:00 A.M. (London time) two Business Days before the date of, or the proposed Conversion, Redenomination or continuation of, any requested Eurocurrency Advance or Local Currency Advance (unless the applicable Local Currency Addendum has provided that this Section shall not apply to Local Currency Advances under such Local Currency Addendum), notify the Agent, the Euro-Agent and any applicable Local Currency Agent that such Bank is not satisfied that deposits in the relevant Alternative Currency will be freely available to it in the relevant amount and for the relevant Interest Period, the Agent shall forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance or Local Currency Advance of such Bank will automatically, on the last day of the then existing Interest Period therefor, Convert or be Redenominated into or continued as, and with respect to a requested Committed Advance as part of a requested Committed Borrowing, such Advance shall be, a Eurocurrency Advance denominated in Dollars and having an Interest Period coextensive with the Interest Period in
effect in respect of all other Committed Advances comprising part of such Committed Borrowing; and
(ii) the right of the Borrowers to request Eurocurrency Advances or Local Currency Advances in such Alternative Currency from such Bank as part of such Committed Borrowing or any other Committed Borrowing shall be suspended until such Bank shall notify the Agent, the Euro-Agent, or the applicable Local Currency Agent that the circumstances causing such suspension no longer exist, and the Advance to be made by such Bank as part of such Committed Borrowing (and the Advance to be made by such Bank as part of any subsequent Committed Borrowing in respect of which such Alternative Currency shall have been requested during such period of suspension) shall be a Eurocurrency Advance denominated in Dollars and having an Interest Period coextensive with the Interest Period in effect in respect of all other Advances a part of such Committed Borrowing.
(e) If any Bank shall, not later than 10:00 A.M. (London time) two Business Days before the date of, or the proposed Conversion, Redenomination or continuation of, any requested Eurocurrency Advance (other than a Local Currency Advance) in an Alternative Currency other than a Primary Currency, notify the Agent or the Euro-Agent that such Bank, in its sole discretion, does not wish to fund the requested Eurocurrency Advance in such Alternative Currency for the relevant Interest Period, the Agent shall forthwith so notify the Company and the Banks, whereupon
(i) each such outstanding Eurocurrency Advance of such Bank will automatically, on the last day of the then existing Interest Period therefor, Convert or be Redenominated into or continued as, and with respect to a requested A Advance as part of a requested A Borrowing, such Advance to be made by such Bank as part of such A Borrowing shall be, a Eurocurrency Advance denominated in Dollars and having an Interest Period coextensive with the Interest Period in effect in respect of all other A Advances comprising a part of such A Borrowing; and
(ii) the right of the Borrowers to request Eurocurrency Advances in such Alternative Currency from such Bank as part of such A Borrowing shall be suspended as to such A Borrowing for such Interest Period.
(f) Each of the Agent, the Euro-Agent and any Local Currency Agent shall, upon becoming aware that the circumstances causing any such suspension referred to in SECTIONS 2.09 (b)-(e) or 2.13 no longer apply, promptly so notify the Company, PROVIDED that the failure of the Agent, the Euro-Agent or any Local Currency Agent to so notify the Company shall not impair the rights of the Banks under this SECTION 2.09 or SECTION 2.13, as applicable, or expose the Agent, the Euro-Agent or any Local Currency Agent to any liability.
(g) If the applicable Borrower shall fail to select the duration
of any Interest Period for any Fixed Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in
SECTION 1.01 and the provisions of SECTION 2.10 or any applicable
Local Currency Addendum, or is not entitled to Convert, continue or
Redenominate such Advances into or as Fixed Rate Advances pursuant to
SECTION 2.10, the Agent will forthwith so notify the Company and the
Banks and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Floating Rate
Advances.
(h) On the date on which the aggregate unpaid principal amount of A Advances comprising any A Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $9,000,000 (or its equivalent in any Alternative Currency), such A Advances shall, if they are A Advances of a Type other than Base Rate Advances, automatically Convert or be Redenominated into Base Rate Advances, and on and after such date the right of the applicable Borrower to Convert or Redenominate such A Advances into A Advances of a Type other than Base Rate Advances shall terminate; PROVIDED, HOWEVER, that if and so long as each such A Advance shall be of the same Type and have the same Interest Period as A Advances comprising another Borrowing or other Borrowings of such Borrower, and the aggregate unpaid principal amount of all such A Advances shall equal or exceed $9,000,000 (or its equivalent in any Alternative Currency), the Borrower shall have the right to continue all such Advances as, or to Convert or Redenominate all such Advances into, Advances of such Type having such Interest Period. On the date on which the aggregate unpaid principal amount of Fixed Rate Advances comprising any Local Currency Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $9,000,000 (or its equivalent in the relevant Alternative Currency), or such other minimum amount for Borrowings of Fixed Rate Advances as has been set forth in the applicable Local Currency Addendum, such Fixed Rate Advances shall automatically Convert into Floating Rate Advances, and on and after such date the right of the applicable Borrower to Convert such Advances into Advances other than Floating Rate Advances shall terminate; PROVIDED, HOWEVER, that if and so long as each such Fixed Rate Advance shall be of the same Type and have the same Interest Period as Fixed Rate Advances comprising another Local Currency Borrowing or other Local Currency Borrowings of such Borrower under such Local Currency Addendum, and the aggregate unpaid principal amount of all such Fixed Rate Advances shall equal or exceed $9,000,000 (or its equivalent in the relevant Alternative Currency) or such other applicable minimum, the Borrower shall have the right to continue all such Advances as, or to Convert such Advances into, Fixed Rate Advances of such Type having such Interest Period.
SECTION 2.10. VOLUNTARY CONVERSION OR CONTINUATION OF ADVANCES.
(a) The applicable Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the second Business Day prior to the date of the proposed Conversion or continuation, and subject to the provisions of SECTIONS 2.09 and 2.13 and the provisos in this SECTION 2.10(a) and, if applicable any
Local Currency Addendum, Convert all or any part of the Committed Advances of one Type denominated in Dollars (or the relevant Alternative Currency, in the case of Local Currency Advances) comprising the same Committed Borrowing into Advances of another Type denominated in Dollars (or the relevant Alternative Currency, in the case of Local Currency Advances) or continue all or any part of the Committed Advances of one Type denominated in Dollars comprising the same Committed Borrowing as Committed Advances of the same Type denominated in Dollars (or the relevant Alternative Currency, in the case of Local Currency Advances); PROVIDED, HOWEVER, that any such Conversion or continuation of any Fixed Rate Advances shall be made on, and only on, the last day of an Interest Period for such Fixed Rate Advances; and PROVIDED FURTHER, that no Committed Advance may be Converted into or continued as, a Fixed Rate Advance, at any time that a Default or Event of Default has occurred and is continuing. Any such Conversion or continuation of any Committed Advances shall be in the minimum amounts and increments specified in SECTION 2.01(b); PROVIDED, that in the case of the continuation of a Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, such continuation may, subject to the terms and conditions otherwise set forth herein, be in an aggregate principal amount equal to the aggregate principal amount of the Borrowing being continued. Each such notice of a Conversion or continuation shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Committed Advances to be Converted, and (iii) if such Conversion is into Fixed Rate Advances, the duration of the Interest Period for each such Committed Advance.
(b) The Borrower may, upon notice given to the Agent not later than 11:00 a.m. (New York City time) on a Business Day at least three Business Days prior to the date of the proposed Redenomination, and subject to the provisions of SECTION 2.09 and 2.13 and the provisos in this SECTION 2.10(b), request that all or any part of the Advances comprising the same A Borrowing be Redenominated from Dollars into an Alternative Currency, from an Alternative Currency into Dollars or another Alternative Currency, or continued in the same Alternative Currency; PROVIDED, HOWEVER, that any Redenomination shall be made on, and only on, the last day of an Interest Period for such Advances; PROVIDED FURTHER, that any such Redenomination of A Advances shall be in the minimum amounts and increments specified in SECTION 2.01(b); and PROVIDED FURTHER, that no Advance may be Redenominated at any time that a Default or Event of Default has occurred and is continuing. Each such notice of request of a Redenomination (a "NOTICE OF REDENOMINATION") shall be by telecopier, telex or cable, confirmed immediately in writing, specifying (i) the Advances comprising the A Borrowing to be Redenominated, (ii) the date of the proposed Redenomination, (iii) the currency into which such Advances are to be Redenominated, and (iv) the duration of the Interest Period for such Advances upon being so Redenominated. Subject to the provisions of SECTIONS 2.09 and 2.13 and of the second proviso in SECTION 2.10(b), each Advance so requested to be Redenominated will be Redenominated, on the date specified therefor in such Notice of Redenomination, into an equivalent amount thereof in the currency requested in such Notice of Redenomination, such equivalent amount to be determined on such date in accordance
with SECTION 2.16, and, upon being so Redenominated, will have an initial Interest Period as requested in such Notice of Redenomination.
SECTION 2.11. PREPAYMENTS.
(a) Subject to SECTION 9.04(b) hereof, and to the terms of the applicable Local Currency Addendum, if applicable, a Borrower may (i) following notice given to the Agent by the Company (on behalf of such Borrower) not later than 11:00 A.M. (New York City time or local time, as applicable) on the proposed date of prepayment (or two Business Days prior to such prepayment in the case of a Designated Prepayment), such notice specifying the applicable Borrower, the proposed date and aggregate principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amounts of the Base Rate Advances comprising part of the same A Borrowing or Floating Rate Advances comprising the same Local Currency Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid and (ii) following notice given to the Agent (or, in the case of Fixed Rate Advances denominated in any Alternative Currency, the Euro-Agent or the applicable Local Currency Agent, as applicable) by the Company (on behalf of such Borrower) not later than 11:00 A.M. (London time or local time, as applicable) three Business Days prior to the proposed date of prepayment (or five Business Days prior to the proposed date of prepayment in the case of a Designated Prepayment), such notice specifying the applicable Borrower, the proposed date of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amounts of the Fixed Rate Advances comprising a Committed Borrowing in whole (and not in part), together with accrued interest to the date of such prepayment on the principal amount prepaid; PROVIDED, HOWEVER, that Fixed Rate Advances that are A Advances may be prepaid ratably in part if such prepayment is a Designated Prepayment. In the case of a Designated Prepayment which provides for a prepayment in part of an A Borrowing, such prepayment shall be allocated only to the Local Currency Banks under the Australian Local Currency Addenda and allocated among such Banks according to their Local Currency Commitments under the Australian Local Currency Addenda. In the case of a Committed Borrowing comprised of Base Rate Advances or other Floating Rate Advances, each partial prepayment shall be in an aggregate principal amount not less than $1,000,000.
(b) If on any date that Dollar equivalents of (i) Advances outstanding in an Alternative Currency or (ii) Local Currency Advances, are determined pursuant to SECTION 2.16 (each such date, a "COMPUTATION DATE"), it is determined that as a result of currency fluctuations with respect to the Advances or Local Currency Advances to which such Computation Date applies, the Dollar equivalent of the aggregate principal amount of all outstanding Advances exceeds the aggregate of all of the Commitments, the Borrowers shall on such date prepay an aggregate principal amount of A Advances ratably to the Banks in an amount equal to or, at the option of the Borrower, greater than such excess, with accrued interest to the date of such prepayment on the principal amount prepaid. The Borrowers may determine which Borrowing such prepayment shall be
allocated to, and any such prepayment of Fixed Rate Advances shall be subject to the provisions of SECTION 9.04(b).
SECTION 2.12. INCREASED COSTS AND REDUCED RETURN.
(a) If, due to either (i) the introduction of or any change (other than any change by way of imposition or increase of reserve requirements, in the case of Adjusted CD Rate Advances, included in the Adjusted CD Rate Reserve Percentage or the Assessment Rate, or, in the case of Eurocurrency Advances, included in the Eurocurrency Rate Reserve Percentage) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law) adopted after the Restatement Date, or reasonably determined by a Bank only after the Restatement Date to be applicable to it or to its Eurocurrency Advances, Adjusted CD Rate Advances, or other Fixed Rate Advances, there shall be any increase after the date hereof in the cost to any Bank of agreeing to make or making, funding or maintaining Adjusted CD Rate Advances, Eurocurrency Advances, or other Fixed Rate Advances, by an amount deemed by such Bank to be material, then the Company shall from time to time, within 15 days after demand by such Bank, accompanied by the certificate required therefor under SECTION 2.12(c) (with a copy of such demand and such certificate to the Agent), pay to the Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost. It shall be assumed, for the purpose of computing amounts to be paid by the Company to Citicorp pursuant to this SECTION 2.12(a), that the making, funding or maintaining by Citicorp of any Advance has been by Citibank.
(b) If any Bank shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Applicable Lending Office or any corporation controlling such Bank) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, which adoption, change, request or directive is effected, made or promulgated after the Restatement Date, or if effective, made or promulgated prior to such date, is reasonably determined by a Bank only after the Restatement Date to be applicable to it or its obligations hereunder, has or would have the effect after the date hereof of reducing the rate of return on such Bank's capital or the capital of any corporation controlling such Bank as a consequence of such Bank's obligation hereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance by an amount deemed by such Bank to be material, then the Company shall, from time to time, within 15 days after demand by such Bank, accompanied by the certificate required therefor under SECTION 2.12(c) (with a copy of such demand and such certificate to the Agent), pay to the Agent for the account of such Bank such additional amount or amounts as will compensate such Bank or such controlling corporation for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. In determining such amount, such Bank may use any reasonable averaging and attribution methods. A certificate of any Bank claiming compensation under this Section and setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder and the basis for the calculation thereof shall be conclusive in the absence of manifest error.
The Company shall not be obligated to pay any additional amounts with respect to
a demand under SECTION 2.12(a) or 2.12(b) that are attributable to the period
(the "EXCLUDED PERIOD") ending 120 days prior to the Company's receipt of the
certificate with respect to such demand required under SECTION 2.12(c);
PROVIDED, HOWEVER, that to the extent such additional amounts accrue during the
Excluded Period because of the retroactive effect of the applicable law, rule,
regulation, guideline or request promulgated during the 120 day period prior to
the Company's receipt of such certificate, the limitation set forth in this
SECTION 2.11(d) shall not apply.
SECTION 2.13. ILLEGALITY. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) at any time that the making or continuance of any of its Local Currency Advances or its Eurocurrency Advances in Dollars or in any Alternative Currency has become unlawful because of the introduction of or any change in or in the interpretation of any law or regulation or because of the assertion of unlawfulness by any central bank or other governmental authority, then, in any such event, such Bank shall give prompt notice (by telephone confirmed in writing) to the Company and to the Agent of such determination (which notice the Agent shall promptly transmit to the other Banks).
(b) Upon the giving of the notice to the Company referred to
in SUBSECTION (a) above, then (i) the obligation of the Banks to make, or to
Convert Committed Advances into or to continue Committed Advances as, such Local
Currency Advances or Eurocurrency Advances shall be suspended until the
applicable Bank notifies the Agent and the Agent shall notify the Company and
the Banks that the circumstances causing such suspension no longer exist, and
(ii) if any affected Local Currency Advances or Eurocurrency Advances are then
outstanding, the Company shall (or shall cause the affected Borrower), upon at
least one Business Day's written notice to the Agent (and, if the affected
Eurocurrency Advances are denominated in any Alternative Currency, the
Euro-Agent or the applicable Local Currency Agent, as applicable) and the
affected Bank, or if permitted by applicable law no later than the date
permitted thereby, in the Company's sole discretion, either (i) prepay the
principal amount of all outstanding Local Currency Advances or Eurocurrency
Advances of such Bank to which such notice related, together with accrued
interest thereon to the date of payment or (ii) Convert or Redenominate each
such Local Currency Advance or Eurocurrency Advance into a Base Rate Advance,
or, if applicable and if permitted by applicable law, into a Floating Rate
Advance pursuant to the applicable Local Currency Addendum, and, in each case be
obligated to reimburse the Banks in
respect thereof pursuant to SECTION 9.04(b) hereof. If more than one Bank gives
notice pursuant to SECTION 2.13(a) at any time, then all outstanding Local
Currency Advances or Eurocurrency Advances, as applicable, of such Banks must be
treated the same by the applicable Borrower pursuant to this SECTION 2.13(b).
Any Base Rate Advance or other Floating Rate Advance arising by reason of this
SECTION 2.13(b) shall have an Interest Period assigned to it that ends on the
date that the Local Currency Advance or Eurocurrency Advance for which it shall
have been substituted would have expired, and the principal thereof and interest
thereon shall be payable on the date that principal and interest would otherwise
have been payable on such Local Currency Advance or Eurocurrency Advance. Such
Base Rate Advance or other Floating Rate Advance may not be prepaid at any time
prior to the date that the Local Currency Advance or Eurocurrency Advances
comprising a part of such Committed Borrowing shall be prepaid.
SECTION 2.14. PAYMENTS AND COMPUTATIONS.
(a) The Borrowers shall make each payment hereunder and under the Notes (except with respect to principal of, interest on, and other amounts relating to Advances denominated in an Alternative Currency) not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent in same day funds by deposit of such funds to the Agent's account maintained at the Payment Office for Dollars in New York City. The Borrowers shall make each payment hereunder and under the Notes with respect to principal of, interest on, and other amounts relating to Advances denominated in an Alternative Currency not later than 11:00 A.M. (London time) on the day when due in such Alternative Currency to the Euro-Agent in same day funds by deposit of such funds to the Euro-Agent's account maintained at the Payment Office for such Alternative Currency, or, in the case of Local Currency Advances, at such other time and place as shall be specified in the applicable Local Currency Addendum. The Agent, the Euro-Agent or the applicable Local Currency Agent, as applicable, will give the Company prior notice of the due date of the principal of any Committed Advance and of the due date and amount of any fees payable hereunder; PROVIDED that the failure to give any such prior notice shall not limit the Company's or the applicable Borrower's liability for such payment, but shall delay the due date of such payment for purposes of SECTIONS 6.01(a) or (b), as applicable, by the number of days after such due date that such notice is given. The Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or fees ratably (other than amounts payable pursuant to SECTION 2.03, 2.08, 2.12 or 2.17) to the applicable Banks for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Bank to such Bank for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
(b) Each Borrower hereby authorizes each Bank, if and to the extent payment owed to such Bank by such Borrower is not made when due hereunder, under any applicable Local Currency Addendum or under any Note held by such Bank, to charge from time to time against any or all of such Borrower's accounts with such Bank any
amount so due. Each Bank agrees promptly to notify the Company after any such charge, provided that the failure to give such notice shall not affect the validity of such charge.
(c) All computations of interest based on the Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Adjusted CD Rate, the Eurocurrency Rate or the Federal Funds Rate and of fees shall be made by the Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, and all computations of interest pursuant to SECTION 2.08 shall be made by a Bank, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or commitment fees are payable. Each determination by the Agent, Euro-Agent or the applicable Local Currency Agent. (or, in the case of SECTION 2.08, by a Bank) of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such cases be included in the computation of payment of interest or commitment fee, as the case may be; PROVIDED, HOWEVER, if such extension would cause payment of interest on or principal of Eurocurrency Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Agent, Euro-Agent or the applicable Local Currency Agent, shall have received notice from a Borrower prior to the date on which any payment is due from such Borrower to the Banks hereunder that such Borrower will not make such payment in full, the Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, may assume that such Borrower has made such payment in full to it on such date and it may, in reliance upon such assumption, cause (but shall not be required to cause) to be distributed to each Bank on such due date an amount equal to the amount then due such Bank. If and to the extent such Borrower shall not have so made such payment in full to the Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, each Bank shall repay to the Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Agent, Euro-Agent or the applicable Local Currency Agent, as applicable, at the Federal Funds Rate.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the A Advances made by it (other than pursuant to SECTION 2.08, 2.12 or 2.17) in excess of its ratable share of payments on account of the A Advances obtained by all the Banks, such Bank shall forthwith purchase from the other Banks such participations in the A Advances made by them as shall be necessary to cause such purchasing Bank to share the excess payment ratably with each of them, PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank shall be rescinded and such Bank shall repay to the purchasing Bank the purchase price to the extent of such recovery together with an amount equal to such Bank's ratable share (according to the proportion of (i) the amount of such Bank's required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered. Each Borrower agrees that any Bank so purchasing a participation from another Bank pursuant to this SECTION 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Bank were the direct creditor of such Borrower in the amount of such participation.
SECTION 2.16. CURRENCY EQUIVALENTS. For purposes of determining
compliance with the provisions of this ARTICLE II at any time, the equivalent in
Dollars in respect of any Advance denominated (or proposed to be denominated) in
an Alternative Currency shall be determined in accordance with SECTION 2.02(a),
SECTION 2.02A, SECTION 2.02B, SECTION 2.03(c)(I), SECTION 2.09, SECTION 2.10 or
SECTION 2.13 by the Euro-Agent, or by the applicable Local Currency Agent, in
the case of a Local Currency Advance, in each case, in consultation with the
Company, immediately prior to the issuance by the Company of the Notice of
Borrowing requesting such Advances or any notice of Conversion or continuation
or Notice of Redenomination with respect to such Advances. Any equivalent
determined in accordance with SECTION 2.02(a), SECTION 2.02A, SECTION 2.02B,
SECTION 2.03(c)(I), SECTION 2.09, SECTION 2.10, SECTION 2.13 or this SECTION
2.16, with respect to any Borrowing of Fixed Rate Advances, shall be deemed to
remain in effect at all times during (and until the last day of) the applicable
Interest Period in respect of the Advances comprising the applicable Borrowing,
notwithstanding any fluctuation in exchange rates occurring prior to the last
day of such Interest Period; any such equivalent determined with respect to any
Borrowing of Floating Rate Advances under any Local Currency Addendum, unless
otherwise specified in such Local Currency Addendum (or unless an Interest
Period is assigned to any such Floating Rate Advance pursuant to SECTION 2.09(d)
or SECTION 2.13, in which case the preceding provisions of this sentence shall
apply), shall be deemed to remain in effect until the last Business Day of the
month in which such determination is made and shall be redetermined by the
applicable Local Currency Agent, in consultation with the Company, on such last
Business Day of such calendar month, and on the last Business Day of each
succeeding month that such Floating Rate Advances are outstanding.
SECTION 2.17. TAXES.
(a) Subject to SECTION 2.17(f), any and all payments by each Borrower hereunder or under the Notes shall be made, in accordance with SECTION 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, EXCLUDING, in the case of each Bank, the Agent, the Euro-Agent, and each Local Currency Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Bank, the Agent, the Euro-Agent or such Local Currency Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Bank, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "TAXES"). Subject to SECTION 2.17(f), if any Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Bank, the Agent, the Euro-Agent, or any Local Currency Agent, (i) the sum payable by such Borrower shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this SECTION 2.17(a)) such Bank, the Agent, the Euro-Agent or such Local Currency Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers jointly and severally agree to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder, under any Local Currency Addendum or under the Notes or from the execution, delivery or registration of, or otherwise with respect to, this Agreement, any Local Currency Addendum or the Notes (hereinafter referred to as "OTHER TAXES"). The Agent, Euro-Agent and any Local Currency Agent may demand payment of, and seek recourse on, any Other Taxes from any Borrower, without any requirement that the Agent, the Euro-Agent or such Local Currency Agent allocate the reimbursement obligation for such Other Taxes among the Borrowers.
(c) Each Borrower will indemnify each Bank, the Agent, the
Euro-Agent and any Local Currency Agent for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
SECTION 2.17) paid by such Bank, the Agent, the Euro-Agent or such
Local Currency Agent (as the case may be) and any liability (including
penalties, interest and expenses reasonably incurred) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall
be made within 30 days from the date such Bank, the Agent, the
Euro-Agent or such Local Currency Agent (as the case may be) makes
written demand therefor.
(d) The Agent, Euro-Agent and any Local Currency Agent may, from time to time, request that the Company furnish (and the Company shall, promptly following any such request, furnish) to the Agent, the Euro-Agent or such Local Currency Agent the originals or certified copies of receipts evidencing the payment of Taxes by and on behalf of the Borrowers or, if no Taxes are payable in respect of any payment hereunder or under the Notes, a certificate from each appropriate taxing authority, or an opinion of counsel acceptable to the Agent, in either case stating that such payment is exempt from or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrowers contained in this SECTION
2.17 shall survive the payment in full of principal and interest hereunder and under the Notes.
(f) (i) On or prior to the Restatement Date (or, in the case of
any assignee party to an Assignment and Acceptance, on the effective
date of its becoming a "Bank" hereunder), each Bank organized under
the laws of a jurisdiction outside the United States shall provide the
Agent with the forms prescribed by the Internal Revenue Service of the
United States certifying such Bank's exemption from United States
withholding taxes with respect to all payments to be made to such Bank
hereunder and under any of the Notes, and each such Bank shall
thereafter provide the Agent with such supplements and amendments
thereto and such additional forms as may from time to time be required
by applicable law. If a Bank that is organized under the laws of a
jurisdiction outside the United States shall fail to deliver, or
improperly delivers, the forms described in this SECTION 2.17(f)(i),
SECTION 2.17(a) shall not apply with respect to any payments made to
such Bank under this Agreement during the period that such failure or
deficiency shall continue, and the Borrowers, the Agent, the
Euro-Agent or any Local Currency Agent shall be permitted to withhold
United States federal, state and local income taxes from any payments
made under this Agreement at the applicable statutory rate.
(ii) On or prior to the date of any Local Currency Addendum (or, in the case of any assignee party to an Assignment and Acceptance which would result in such Bank's becoming a Local Currency Bank, on the effective date of its becoming a "Bank" hereunder), each Bank which will be a Local Currency Bank under such Local Currency Addendum which is organized under the laws of a jurisdiction outside the jurisdiction in which Local Currency Advances are to be made under such Local Currency Addendum shall provide the Local Currency Agent and the Agent with the forms, if any, prescribed by the applicable governmental agent of such Local Currency Country certifying such Bank's exemption from withholding taxes imposed by such Local Currency Country with respect to all payments to be made to such Bank under such Local Currency Addendum, and each such Bank shall thereafter provide the Local Currency Agent and the Agent with such supplements and amendments thereto and such additional forms as may from time to time be required by applicable law. If a Local Currency Bank that is organized under the laws of a jurisdiction outside the applicable Local Currency Country shall fail to deliver, or improperly delivers, the forms described in this SECTION 2.17(f)(ii), SECTION 2.17(a) shall not apply with respect to any payments made to such Bank under such Local Currency Addendum during the period that such failure or deficiency shall continue, and the applicable Borrower, the Agent, or Local Currency Agent shall be permitted to withhold Local Currency Country federal, state and local income taxes from any payments made under such Local Currency Addendum at the applicable statutory rate.
(iii) on the date of any Local Currency Addendum (or, in the case of any assignee party to an Assignment and Acceptance which would result in such Bank Becoming a Local Currency Bank, on the effective date of its becoming a "Local Currency Bank" under such Local Currency Addendum), each Bank which will be a Local Currency Bank under such Local Currency Addendum will, unless otherwise provided in the Local
Currency Addendum, be an Eligible Local Currency Bank and shall so
confirm in the Local Currency Addendum. If such confirmation by such
Local Currency Bank shall not be correct on such effective date, and
as a result thereof, the Borrowers, the Agent, the Euro-Agent or any
Local Currency Agent shall be required to withhold Local Currency
Country federal, state or local income taxes from any payments made
under such Local Currency Addendum, then during the period that such
failure to qualify as an Eligible Local Currency Bank shall continue,
SECTION 2.17(a) shall not apply with respect to any payments made to
such Local Currency Bank under such Local Currency Addendum and the
applicable Borrower, the Agent, or Local Currency Agent shall be
permitted to withhold Local Currency Country federal, state and local
income taxes, from any payments made under such Local Currency
Addendum at the applicable statutory rate.
(g) If any Bank determines, in its sole discretion, that it has actually and finally realized, by reason of a refund, deduction or credit of any Taxes or Other Taxes paid or reimbursed by a Borrower pursuant to this SECTION 2.17 in respect of payments under the Credit Agreement or the Notes, a current monetary benefit that it would otherwise not have obtained but for such refund, deduction or credit, and that would result in the total payments under this SECTION 2.17 exceeding the amount needed to make such Bank whole, such Bank shall pay to such Borrower, with reasonable promptness following the date on which it actually realizes such benefit, an amount equal to the lesser of the amount of such benefit or the amount of such excess, in each case net of all reasonable out-of-pocket expenses in securing such refund, deduction or credit.
SECTION 2.18. SUBSTITUTION OF BANKS. In the event that (w) any one or more Banks, pursuant to SECTION 2.12 hereof, incurs any increased costs, receives a reduced payment or is required to make any payment for which any such Bank demands compensation pursuant to such Section, or makes a claim for indemnity or compensation under SECTION 2.17 hereof with respect to a payment when no other Bank makes a claim for indemnity or compensation under SECTION 2.17 with respect to such payment, in any such case which compensation or indemnity increases the effective lending rate of such Bank with respect to its share of the A Advances in excess of the effective lending rate of the other Banks, or, if applicable, the effective lending rate of such Bank with respect to Local Currency Advances in excess of the effective lending rate of the other Banks party to the Local Currency Addendum under which such Local Currency Advances are outstanding, and such Bank has not mitigated such increased costs, reduced payment or additional payment within 30 days after receipt by such Bank from the Company of a written notice that such Bank's effective lending rate has so exceeded the effective lending rate of the other Banks; (x) any one or more Banks have determined pursuant to SECTION 2.09(d) or 2.13(a) hereof that it may not make or maintain all or certain of its Eurocurrency Advances or Local Currency Advances at such time (and the other Banks shall continue to be able to make or maintain their corresponding Eurocurrency Advances at such time or the other applicable Local Currency Banks shall continue to be able to make or maintain their corresponding Local Currency Advances at such time) and the inability of such Bank or Local Currency Bank, as applicable, to make or maintain such Eurocurrency Advances or Local Currency Advances continues for 30 or more days after the receipt by such Bank from the Company of written notice
of such inability and the Company's request that such Bank alleviate such inability; (y) any Bank shall decline (or be deemed to have declined) to extend its Commitment hereunder after a request for extension of Commitments pursuant to SECTION 2.19 and Banks holding Commitments equaling or exceeding 51% of the Total Commitment have agreed to extend their Commitments pursuant to such request; or (z) any Local Currency Bank under a Local Currency Addendum ceases to be an Eligible Local Currency Bank under such Local Currency Addendum, then and in any such event, the Company may substitute for such Bank an existing Bank, or another financial institution which is acceptable to the Agent, to assume the Commitment and/or Local Currency Commitment of such Bank and to purchase the A Note and/or any Local Currency Advances of such Bank hereunder, without recourse to or warranty (other than as to unencumbered ownership) by, or expense to, such Bank for a purchase price equal to the outstanding principal amount of the A Advances and/or Local Currency Advances then payable to such Bank plus any accrued but unpaid interest and accrued but unpaid fees with respect thereto. Such purchase shall be effected by execution and delivery by such Bank and its replacement of an Assignment and Acceptance, and shall otherwise be made in the manner described in SECTION 9.08. Upon such purchase, to the extent of the rights and benefits assigned, such Bank shall no longer be a party hereto or to the applicable Local Currency Addendum or have any rights or benefits hereunder or under said Local Currency Addendum (except for rights or benefits that such Bank would retain hereunder upon termination of this Agreement) and the replacement Bank shall succeed to the rights and benefits, and shall assume the obligations, of such Bank hereunder, under such A Note and under any Local Currency Addendum to which such Bank is a party.
SECTION 2.19. EXTENSION OF COMMITMENTS. (a) One time during each period from the date that is 90 days prior to each Anniversary Date to the date that is 30 days prior to each such Anniversary Date, the Borrowers may, by written notice (an "EXTENSION REQUEST") given to the Agent, request that the Stated Termination Date be extended. Each such Extension Request shall contemplate an extension of the Stated Termination Date to a date that is one year after the Stated Termination Date then in effect.
(b) The Agent shall promptly advise each Bank of its receipt of any Extension Request. Each Bank may, in its sole discretion, consent to a requested extension by giving written notice thereof to the Agent by not later than the date (the "EXTENSION CONFIRMATION DATE") that is 15 days after the date of the Extension Request, which consent shall be irrevocable when given. Failure on the part of any Bank to respond to an Extension Request by the applicable Extension Confirmation Date shall be deemed to be a denial of such request by such Bank. If all of the Banks shall consent in writing to the requested extension, such request shall be granted with respect to each consenting Bank. Promptly following the opening of business on the first Business Day following the applicable Extension Confirmation Date, the Agent shall notify the Company in writing as to whether the requested extension has been granted (such written notice being an "EXTENSION CONFIRMATION NOTICE") and, if granted, such extension shall become effective upon the issuance of such Extension Confirmation Notice. The Agent shall promptly thereafter provide a copy of such Extension Confirmation Notice to each Bank. If such extension is not granted, the Agent shall give the Company notice of the identity of any non-consenting Banks. If the Company replaces one or more non-consenting Banks pursuant to the
provisions of SECTION 2.18, and any such replacement Bank becomes a Bank on or before the earlier of (i) 30 days after the Extension Confirmation Date and (b) 5 days before the applicable Anniversary Date, and consents to the Extension Request at the time it becomes a Bank, such consent shall be effective retroactively as of the Extension Confirmation Date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES. The obligation of each Bank to make its initial Advance on the occasion of the initial Borrowing by each Borrower (including each Borrowing Subsidiary) on or after the Restatement Date is subject to the conditions precedent that (i) all commitment, facility, agency and administrative fees provided for under the terms of this Agreement, accrued to the date of such initial Advance, shall have been paid by the Company and (ii) the Agent shall have received on or before the day of such initial Borrowing the following, each dated such day or within two Business Days prior to such day, or dated as of the Restatement Date in the case of (1) the items specified in (c)(i), (e), and (f)(i), and (2) with respect to the Company, the items specified in items (a), (d)(i) and (g), in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Bank:
(a) The A Notes of such Borrower payable to the order of the Banks, respectively.
(b) For the initial Borrowing by each Borrowing Subsidiary, an Election to Participate executed by such Borrowing Subsidiary and by the Company.
(c) Certified copies of (i) for the initial Borrowing by the Company, the resolutions of the Board of Directors of the Company approving this Agreement and the Notes of the Company; (ii) for the initial Borrowing by each Borrowing Subsidiary, the resolutions or other authorizing action of the Board of Directors or other governing body of such Borrowing Subsidiary approving its Election to Participate, this Agreement and the Notes of such Borrowing Subsidiary, and the resolutions of the Board of Directors of the Company approving this Agreement and the addition of a Borrowing Subsidiary pursuant to the terms of this Agreement; and (iii) for the initial Borrowing by each Borrower, all documents evidencing other necessary corporate or other authorizing action and governmental approvals, if any, with respect to this Agreement and the Notes of such Borrower.
(d) Signed copies of (i) a certificate of the Secretary or an Assistant Secretary or other appropriate officer or representative of such Borrower certifying the names and true signatures of the officers or other representatives of such Borrower authorized to sign this Agreement (if the Borrower is the Company), such Borrower's Election to Participate (if the Borrower is a Borrowing Subsidiary) and the Notes of such Borrower and the other documents or certificates to be delivered by such Borrower pursuant to this Agreement and (ii) for the initial Borrowing by each Borrower other than the Company, a certificate
of the Secretary or an Assistant Secretary or other appropriate officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and such Borrower's Election to Participate. The Agent may conclusively rely on each such certificate of such Borrower or of the Company until the Agent shall receive a further certificate of the Secretary or an Assistant Secretary or other representative of such Borrower or of the Company, as the case may be, cancelling or amending the prior certificate of such Borrower or of the Company, as the case may be, and submitting the signatures of the officers or other representatives named in such further certificate.
(e) A certificate executed by the Treasurer of the Company on behalf of the Company certifying that as of the Restatement Date, since December 31, 1999 there has been no material adverse change in the business, financial condition, operations, properties or performance of the Company and its Subsidiaries, taken as a whole, or in the ability of the Company to perform its obligations under this Agreement or any Note.
(f) Favorable opinions of (i) for the initial Borrowing by the Company, the General Counsel of the Company in substantially the form of EXHIBIT E hereto and special counsel for the Company in substantially the form of EXHIBIT F hereto, (ii) for the initial Borrowing by each Borrowing Subsidiary, counsel for such Borrowing Subsidiary in substantially the form of EXHIBIT G hereto, the General Counsel of the Company in substantially the form of EXHIBIT H hereto and special counsel for the Company in substantially the form of EXHIBIT I hereto, and (iii) for any initial Borrowing, counsel for the Company or the applicable Borrowing Subsidiary as to such other matters as any Bank through the Agent may reasonably request. Such counsel shall be satisfactory to the Agent.
(g) A favorable opinion of Sidley & Austin, counsel for the Agent and the Euro-Agent, in substantially the form of EXHIBIT J hereto.
Notwithstanding the foregoing, the conditions precedent in this SECTION 3.01 with respect to the initial Borrowings subsequent to the Restatement Date by Ecolab Pty Limited and Ecolab Finance Pty Ltd. shall be deemed to have been satisfied.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH COMMITTED BORROWING. The obligation of each Bank to make a Committed Advance on the occasion of each Committed Borrowing pursuant to SECTION 2.02 or 2.02B (including the initial Committed Borrowing) by each Borrower (including each Borrowing Subsidiary) shall be subject to the further conditions precedent that on the date of such Committed Borrowing (a) the following statements shall be true and the Agent shall have received for the account of such Bank a certificate signed by a duly authorized officer of the Company as follows:
(i) The representations and warranties contained in subsections
(a), (b), (c) and (d) of SECTION 4.01 and, if such Committed
Borrowing is by a Borrowing Subsidiary, SECTION 4.02 (as to
such Borrowing Subsidiary) are correct in all
material respects on and as of the date of such Committed Borrowing, before and after giving effect to such Committed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from such Committed Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default;
and (b) if the Agent shall have reasonably requested prior to the delivery of the Notice of Borrowing for such Committed Borrowing, approvals, opinions or, pursuant to SECTION 5.01(b)(xiii), documents for the purpose of verifying compliance by the Company or any Borrower with the terms of this Agreement or with applicable law, the Agent shall have received such approvals, opinions or documents.
SECTION 3.03. CONDITIONS PRECEDENT TO CERTAIN BORROWINGS. The
obligation of each Bank to make that portion of a Committed Advance on the
occasion of any Committed Borrowing pursuant to SECTION 2.02 or 2.02B which
would increase the aggregate outstanding amount in any currency of Committed
Advances owing to such Bank from all Borrowers over the aggregate amount of
Committed Advances owing to such Bank in such currency outstanding immediately
prior to the making of such Committed Advance shall be subject to the further
conditions precedent that on the date of such Committed Borrowing (i) the
representations and warranties contained in subsections (e), (f), (g), (h), (i),
(k), (l), (m) and (n) of SECTION 4.01 are correct in all material respects on
and as of the date of such Committed Borrowing, before and after giving effect
to such Committed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; (ii) no event has occurred and is
continuing, or would result from such Committed Borrowing or from the
application of the proceeds therefrom, which would constitute an Event of
Default but for the requirement that notice be given or time elapse or both; and
(iii) the certificate furnished pursuant to SECTION 3.02 shall include
statements to the effect of clauses (i) and (ii) above.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH B BORROWING. The
obligation of each Bank which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the conditions precedent that (i) at or before
the applicable time and date before the date of such B Borrowing set forth in
SECTION 2.03(b)(i) or 2.03(c)(i), as applicable, the Agent shall have received
the Notice of B Borrowing with respect thereto, (ii) at or before the applicable
time and date before the date of such B Borrowing set forth in SECTION
2.03(b)(iii) or 2.03(c)(iii), as applicable, the Agent shall have received the
written confirmatory notice of such B Borrowing to be given by the Company
pursuant to SECTION 2.03(b)(iii) or SECTION 2.03(c)(iii), as applicable, (iii)
on or before the date of such B Borrowing but prior to such B Borrowing, the
Agent shall have received a B Note signed by the applicable Borrower payable to
the order of such Bank for each of the one or more B Advances to be made by such
Bank as part of such B Borrowing, in a principal amount equal to the principal
amount of the B Advance to be evidenced thereby and otherwise on such terms as
were agreed to for such B Advance in accordance with SECTION 2.03, and (iv) on
the date of such B Borrowing the following statements shall be true (and each of
the
giving of the applicable Notice of B Borrowing and the acceptance by such Borrower of the proceeds of such B Borrowing shall constitute a representation and warranty by the Company that on the date of such B Borrowing such statements are true):
(a) the representations and warranties contained in SECTION 4.01 (other than SUBSECTIONS (j) and (o) thereof) and, if such B Borrowing is by a Borrowing Subsidiary, SECTION 4.02 (as to such Borrowing Subsidiary) are correct in all material respects on and as of the date of such B Borrowing, before and after giving effect to such B Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(b) No event has occurred and is continuing, or would result from such B Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default, or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
SECTION 3.05. CONDITIONS PRECEDENT TO INITIAL LOCAL CURRENCY BORROWING UNDER ANY LOCAL CURRENCY ADDENDUM. The obligation of each Local Currency Bank under any Local Currency Addendum to make its initial Local Currency Advance under such Local Currency Addendum is subject to the additional conditions precedent that the Agent shall have received on or before the day of such initial Local Currency Advances in sufficient copies for each such Local Currency Bank:
(a) An election to Participate executed by the applicable Borrowing Subsidiary and by the Company.
(b) A Local Currency Addendum executed by such Borrowing Subsidiary, the Company, the applicable Local Currency Agent and the Local Currency Banks party thereto providing for a Local Currency Facility Maximum Borrowing Amount at least equal to such initial Local Currency Borrowing.
(c) Such other documents that the applicable Local Currency Agent shall reasonably request.
ARTICLE IV
REPRESENTATION AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to the Banks and the Agent as follows:
(a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this Agreement, its Notes and each Local Currency Addendum are within the Company's corporate powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Company's restated certificate of incorporation or by-laws or (ii) law or any contractual restriction binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement, the Notes, or any Local Currency Addendum except any such approvals, notices, actions or filings which have already been made, obtained or given.
(d) This Agreement is, and the Company's Notes and any Local Currency Addendum when delivered hereunder will be, legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and to general principles of equity.
(e) The consolidated balance sheets of the Company and its Consolidated Subsidiaries as of December 31, 1999, and the related statements of income, cash flows and shareholders' equity of the Company and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, fairly present the financial condition of the Company and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Company and its Consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied.
(f) There are no pending actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official, in which there is (in the best judgment of the Company) a reasonable possibility of an adverse decision which would affect (i) the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries, to the extent that there is (in the best judgment of the Company) a reasonable possibility that such decision would prevent the Company from repaying its obligations in accordance with the terms of this Agreement or, (ii) the legality, validity or enforceability of this Agreement or any Note.
(g) United States Federal income tax returns of the Company and its Subsidiaries have been examined and closed through the year ended December 31, 1996. The Company and its Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company or any of its Subsidiaries, except such taxes or assessments, if any, as are being contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of taxes are, in the opinion of the Company, adequate.
(h) Each of the Company's Significant Subsidiaries is a corporation duly incorporated, validly existing and in good standing (or the equivalent under applicable local law) under the laws of its jurisdiction of incorporation, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted, except in each case where the failure to do so could not reasonably be expected to affect (i) the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is a reasonable possibility that such failure would prevent any of the Borrowers from repaying its obligations in accordance with the terms of this Agreement, or (ii) the legality, validity or enforceability of this Agreement.
(i) The sum of the Insufficiencies of any and all Plans with respect to which a Termination Event has occurred and is still in existence (or, in the case of a Plan with respect to which a Termination Event described in clause (ii) of the definition of Termination Event has occurred, the liability related thereto) does not exceed $25,000,000.
(j) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Agent, was complete and accurate and fairly presented the funding status and financial condition of such Plan as of the date of such Schedule B, and since such date there has been no material adverse change in such funding status or financial condition, considered in the aggregate, except for a decline, if any, in the funded ratio of the Ecolab Pension Plan primarily attributable to a decrease in the interest rate which must be used to measure pension plan liabilities.
(k) Neither the Company nor any of its ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans in connection with Withdrawal Liabilities (determined as of the date of such notification), is greater than $25,000,000.
(l) Neither the Company nor any of its ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Company and its ERISA Affiliates to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the respective plan years most recently ended by an amount exceeding $7,500,000 per annum.
(m) The Company and its Subsidiaries are in compliance in all material respects with all environmental and hazardous waste laws, rules and regulations, and neither the Company nor any of its Subsidiaries has been cited as being in violation of such law, rule or regulation by any Federal, state or local governmental agency or other authority
responsible for or having jurisdiction over hazardous waste disposal, where the failure to so comply or being so cited would (in the best judgment of the Company) affect the business, consolidated financial position or consolidated results of operations of the Company and its Subsidiaries, to the extent that there is (in the best judgment of the Company) a reasonable possibility that such non-compliance or being so cited or listed would prevent the Company from repaying its obligations under this Agreement in accordance with the terms hereof.
(n) There are no pending or, to the knowledge of the Company, threatened actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or other governmental agency or authority arising out of or relating to hazardous waste disposal or environmental compliance or asserting a claim for damages based upon the use or other application of any products of the Company or any of its Subsidiaries, in which there is (in the best judgment of the Company) a reasonable possibility of an adverse decision which would affect the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is (in the best judgment of the Company) a reasonable possibility that such decision would prevent the Company from repaying its obligations under this Agreement in accordance with the terms hereof.
(o) As of the Restatement Date, since December 31, 1999 there has been no material adverse change in the business, financial condition, operations, properties or performance of the Company and its Subsidiaries, taken as a whole, or in the ability of the Company to perform its obligations under this Agreement or any Note.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES. Each Borrowing Subsidiary shall be deemed by the execution and delivery of its Election to Participate to have represented and warranted as of the date thereof that:
(a) It is duly organized, validly existing and in good standing (or its equivalent under local law) under the laws of the jurisdiction of its organization.
(b) The execution and delivery by it of its Election to Participate, its Notes, and any Local Currency Addendum to which it is a party, and the performance by it of this Agreement, its Notes, and any Local Currency Addendum to which it is a party, are within its powers, have been duly authorized by all necessary action, and do not contravene (i) its constituent documents or (ii) law or any contractual restriction binding on or affecting such Borrowing Subsidiary.
(c) This Agreement constitutes a legal, valid and binding agreement of such Borrowing Subsidiary, and its Notes, when executed and delivered in accordance with this Agreement, will constitute legal, valid and binding obligations of such Borrowing Subsidiary, enforceable against such Borrowing Subsidiary in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and to general principles of equity.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Note shall remain unpaid or any Bank shall have any Commitment hereunder, the Company will, unless the Majority Banks shall otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its Subsidiaries to comply, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, (i) paying before the same become delinquent all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith, and (ii) required capitalization of each Borrowing Subsidiary, except in each case where the failure to do so could not reasonably be expected to affect (i) the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is a reasonable possibility that such failure would prevent any of the Borrowers from repaying its obligations in accordance with the terms of this Agreement, or (ii) the legality, validity or enforceability of this Agreement.
(b) REPORTING REQUIREMENTS. Furnish to the Banks:
(i) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Company, the consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of such quarter and the consolidated statement of income and shareholders' equity and the consolidated statement of cash flows of the Company and its Consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by a designated financial officer of the Company;
(ii) as soon as available and in any event within 120 days after the end of each fiscal year of the Company, a copy of the annual report for such year for the Company and its Consolidated Subsidiaries, containing financial statements for such year certified in a manner acceptable to the Majority Banks by PriceWaterhouse Coopers or other independent public accountants acceptable to the Majority Banks;
(iii) within the designated time frame for the delivery of financial statements referred to in clauses (i) and (ii) above, a certificate of a designated financial officer of the Company (A) setting forth in reasonable detail the calculations required to establish whether the Company was in compliance with the requirements of SECTIONS 5.02(a), and 5.03 on the date of such financial
statements and (B) stating whether there exists on the date of such certificate any Event of Default or condition or event which with notice or lapse of time or both would become an Event of Default and, if any Event of Default or any such condition or event then exists, setting forth the details thereof and the action which the Company is taking with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all reports which the Company sends generally to its security holders, and copies of all periodic reports (including reports on Form 8-K) and all registration statements which the Company or any Subsidiary files with the Securities and Exchange Commission (other than registration statements on Form S-8 or Form 11-K, or registration statements on Form S-3 relating solely to the registration of securities for resale by the holders thereof);
(v) as soon as possible and, in any event, within 14 Business Days after the Company (in its best judgment) has made a determination pursuant to any notice or claim received by the Company or any of its Subsidiaries to the effect that the Company or any of its Subsidiaries is a potentially responsible party for response costs incurred or to be incurred at any facility, other than a facility owned or operated by the Company or any of its Subsidiaries under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") or any state equivalent, that the potential liability (taking into account the probability that other Persons will provide contributions or otherwise share in the response costs to be incurred at the facility) of the Company or any of its Subsidiaries could reasonably be expected to exceed $25,000,000, a copy of such notice or claim and a statement of an officer of the Company explaining the Company's understanding of the basis for such notice or claim;
(vi) as soon as possible and, in any event, within 14 Business Days from the date the Company (in its best judgment) makes a determination, pursuant to any notice given with respect to property owned or operated by the Company or any of its Subsidiaries, to Federal or state environmental agencies under any applicable environmental requirement of law, reporting the release of a hazardous or toxic waste, substance, pollutant or contaminant, including petroleum-based substances or wastes, into the environment, that the potential liability (taking into account the probability that other Persons will provide contributions or otherwise share in the response costs to be incurred at the facility) of the Company or any of its Subsidiaries could reasonably be expected to exceed $25,000,000, a copy of such notice and a statement of an officer of the Company explaining the Company's understanding of the basis for such notice;
(vii) as soon as possible and, in any event, within 14 Business Days after the Company acquires actual knowledge that the operations or facilities of the
Company or any of its Subsidiaries has become the subject of any state or federal investigation evaluating whether any remedial action pursuant to the National Contingency Plan, or any state equivalent, is needed to respond to a release or threatened release of a hazardous or toxic waste, substance, pollutant or contaminant, including petroleum-based substances or wastes, into the environment, if it could reasonably be expected that the cost to the Company and its Subsidiaries of the anticipated remedial action would exceed $25,000,000 a statement by an officer of the Company informing the Banks of such investigation and explaining the Company's understanding of the basis for such investigation;
(viii) as soon as possible and, in any event, within 14 Business Days after the Company acquires actual knowledge that any of the operations or facilities of the Company or any of its Subsidiaries becomes listed or is proposed for listing on the National Priorities List in accordance with 40 C.F.R. Part 300, Appendix B, or any state equivalent, and it could reasonably be expected that the cost to the Company and its Subsidiaries of response costs related thereto would equal or exceed $12,500,000, or receives any written notice or claim to the effect that it is a potentially responsible party for response costs involving an aggregate cost to the Company or its Subsidiaries of $25,000,000 or more incurred or to be incurred under CERCLA or any state equivalent, at any facility owned or operated by the Company or any of its Subsidiaries, a statement by an officer of the Company so informing the Banks and explaining the Company's understanding of the basis for such listing or notice;
(ix) as soon as possible and in any event (A) within 45 days after the Company or any of its ERISA Affiliates acquires actual knowledge that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Plan has occurred, and (B) within 14 days after the Company or any of its ERISA Affiliates acquires actual knowledge that any other Termination Event with respect to any Plan has occurred, (PROVIDED, HOWEVER, that the statement referred to below would not be required if (1) such Termination Event is described in clause (ii) of the definition of Termination Event, unless the occurrence of such Termination Event could reasonably be expected to or does result in aggregate liability of the Company and all ERISA Affiliates of the Company to any Multiple Employer Plan or to the PBGC of more than $25,000,000, (2) such Termination Event is described in clause (iii) of the definition of Termination Event, unless such Termination Event is not a "standard termination" as defined in Section 4041 of ERISA, or (3) it could not reasonably be expected that the aggregate cost to the Company and its Subsidiaries of any event set forth in clause (A) or (B) of this SECTION 5.01(b)(ix) and not otherwise excluded from the reporting requirements of this Section would exceed $5,000,000) a statement of an officer of the Company
describing such Termination Event and the action, if any, which the Company or any of its ERISA Affiliates proposes to take with respect thereto;
(x) promptly and in any event within 5 Business Days after receipt thereof by the Company or any of its ERISA Affiliates, copies of each notice received by the Company or any such ERISA Affiliate from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(xi) promptly and in any event within 14 Business Days after receipt thereof by the Company or any of its ERISA Affiliates from the sponsor of a Multiemployer Plan, if the amount of liability incurred or expected to be incurred pursuant to such notice exceeds $10,000,000, a copy of each such notice received by the Company or such ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by such Multiemployer Plan, (B) the determination that such Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of such Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or expected to be incurred, by the Company or any such ERISA Affiliate, as the case may be, in connection with any event described in clause (A), (B) or (C) above;
(xii) as soon as possible and, in any event, within 5 Business Days after the Company acquires actual knowledge that either of its Credit Ratings has changed, written notice informing the Agent of such change; and
(xiii) promptly, and in any event as soon as reasonably practicable, such other information with respect to the condition or operations, financial or otherwise, of the Company or any of its Subsidiaries or ERISA Affiliates as any Bank through the Agent may from time to time reasonably request, including, without limitation, Schedule B (Actuarial Information) to the annual reports (Form 5500 Series) filed with the Internal Revenue Service for each Plan.
With respect to any financial statement, report or other document
required to be delivered to the Banks pursuant to clauses (i), (ii) or
(iv) above, the Company shall be deemed to have fulfilled its
obligation to deliver such document to the extent that such document
has been filed electronically with the Securities and Exchange
Commission and is available on the web site operated by the Securities
and Exchange Commission on or before the date that such document is
required to be delivered pursuant to such clause.
(c) CORPORATE EXISTENCE. Subject to SECTION 5.02(b), preserve and keep, and will cause each of its Subsidiaries to preserve and keep, its corporate existence, rights, franchises and licenses in full force and effect, PROVIDED, HOWEVER, that the Company may terminate the corporate existence of any Subsidiary, or permit the termination or abandonment of any Subsidiary, or permit the termination or abandonment of any right, franchise or license if, in the good faith judgment of the appropriate officer or officers of
the Company, such termination or abandonment is not materially disadvantageous to the Company and is not materially disadvantageous to the Banks or the holders of the Notes.
(d) INSURANCE. Maintain, and cause each of its Subsidiaries to maintain, insurance with sound and reputable insurers covering all such properties and risks as are customarily insured by, and in amounts not less than those customarily carried by, corporations engaged in similar businesses and similarly situated.
(e) PROPERTIES. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, in all material respects its properties which are deemed by the Company or such Subsidiary to be necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear excepted.
(f) BUSINESS. Without prohibiting the Company from making acquisitions or divestitures permitted under SECTION 5.02(b), remain in the same businesses, similar businesses or other manufacturing or service businesses reasonably related thereto, taken as a whole, as are carried on at the date of this Agreement.
(g) USE OF PROCEEDS. Use the proceeds of the Advances made under this Agreement only for general corporate purposes, including, without limitation, the repurchase of shares of capital stock of the Company (as duly approved by the Company's board of directors from time to time), the repayment of other indebtedness and acquisitions.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Note shall remain unpaid or any Bank shall have any Commitment hereunder, the Company will not, without the written consent of the Majority Banks:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its Consolidated Subsidiaries to create or suffer to exist, any lien, security interest or other charge or encumbrance ("LIEN") upon or with respect to any of its properties (other than Margin Stock), whether now owned or hereafter acquired, or assign, or permit any of its Consolidated Subsidiaries to assign, any right to receive income, in each case to secure any Debt of any Person or entity, other than (i) Liens securing Debt which in the aggregate does not exceed $50,000,000 or (ii) Liens granted by any Consolidated Subsidiary as security for any Debt owing to the Company or to a Wholly-Owned Consolidated Subsidiary.
(b) CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Consolidate with or merge with or into any other Person or sell, lease or otherwise transfer all or a majority of its assets (other than Margin Stock) to any other Person or permit any Significant Subsidiary or Borrowing Subsidiary to consolidate with, merge into or sell, lease or otherwise transfer all or a majority of its assets to any Person other than the Company or a Wholly-Owned Consolidated Subsidiary except:
(i) the Company may merge or consolidate with any other corporation so long as the Company is the surviving corporation in such transaction and immediately after consummation of such transaction no event has occurred and is continuing which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(ii) the Company may merge into any corporation solely for the purpose of redomiciling so long as the surviving corporation in such transaction expressly assumes all of the obligations of the Company under this Agreement, under its Notes and under the letter agreement referred to in SECTION 2.04(b) and immediately after consummation of such transaction no event has occurred and is continuing which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both; and
(iii) any Significant Subsidiary may consolidate or merge with or sell, lease or otherwise transfer all or more than a majority of its assets to any other Person so long as immediately after consummation of such transaction no event has occurred and is continuing which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(c) USE OF PROCEEDS FOR SECURITIES PURCHASES. Use any proceeds of any
Advance to acquire any security in any transaction which is subject to
Section 13(d), 13(g) or 14(d) of the Exchange Act except to the extent such
transaction complies with such Act and the rules and regulations
thereunder.
SECTION 5.03. FINANCIAL COVENANT. So long as any Note shall remain unpaid or any Bank shall have any Commitment hereunder, the Company will not, without the written consent of the Majority Banks, create or suffer to exist, or permit any of its Consolidated Subsidiaries to create or suffer to exist, any Debt, if, immediately after giving effect to such Debt and the receipt and application of any proceeds thereof, the ratio of Total Debt to Capitalization exceeds 0.55 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Note, or of any Advance not evidenced by a Note, when due; or
(b) Any Borrower shall fail to pay any fee under this Agreement or any interest on any Note (or on any Advance not evidenced by a Note) within ten days after the due date thereof; or
(c) Any written representation or warranty made by any Borrower herein or in connection with this Agreement shall prove to have been incorrect in any material respect when made; provided that if any such representation or warranty shall have been incorrect through inadvertence or oversight, no Event of Default shall occur if such representation or warranty shall be made correct within 30 days after any Borrower shall have discovered the error; or
(d) The Company shall fail to perform or observe any of the covenants contained in SECTION 5.02 (other than with respect to any involuntary Lien for purposes of SECTION 5.02(a)) or SECTION 5.03 (with respect to a Total Debt to Capitalization ratio equal to or greater than 0.60 to 1.00); or the Company shall fail to perform or observe any other term, covenant (including SECTION 5.02(a) with respect to any involuntary Lien and SECTION 5.03 with respect to a Total Debt to Capitalization Ratio less than 0.60 to 1.00) or agreement contained in this Agreement, other than in (a) or (b) above, on its part to be performed or observed and such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Company by the Agent or any Bank; or
(e) The Company or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt which is outstanding in a principal amount of at least $20,000,000 (or its equivalent in any other currency) in the aggregate (but excluding Debt evidenced by the Notes or consisting of Advances not evidenced by the Notes) of the Company or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment or a prepayment required due to a voluntary sale or condemnation of collateral securing such Debt, or in the case of Debt which was Debt of an entity acquired by the Company or any of its Subsidiaries and which Debt was assumed by the Company or such Subsidiary as part of such acquisition, a prepayment required due to a sale or other transfer or condemnation of assets), prior to the stated maturity thereof; or
(f) The Company, any of its Significant Subsidiaries or any Borrowing Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Company, any of its Significant Subsidiaries or any Borrowing Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the event of any such proceeding instituted against the Company, any of its Significant Subsidiaries or any Borrowing Subsidiary, such proceeding shall remain undismissed or unstayed for a period of 60 days or shall result in the entry of an order for relief, the appointment of a trustee or receiver, or other result adverse to the Company, such Significant Subsidiary or such Borrowing Subsidiary; or the Company, any of its Significant Subsidiaries or any Borrowing Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money (to the extent not covered by insurance under which the insurer has admitted its liability in writing) in excess of $10,000,000 (or its equivalent in any other currency) shall be rendered against the Company or any of its Subsidiaries and (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order and there shall be any time at which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect or (ii) enforcement proceedings shall not have been commenced by any creditor upon such judgment or order and there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Majority Banks, by notice to the Company, declare the obligation of each Bank to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Majority Banks, by notice to the Company, declare the Notes, any Advances not evidenced by Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, any Advances not evidenced by Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED, HOWEVER, that in the event of an Event of Default described in SECTION 6.01(f), (A) the obligation of each Bank to make Advances shall automatically be terminated and (B) the Notes, any Advances not evidenced by Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE AGENT AND THE EURO-AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. On and as of the Restatement Date, each Bank hereby appoints Citicorp as Agent and each Bank hereby appoints and authorizes each of the Agent and the Euro-Agent to take such action as agent on its behalf and to exercise powers
under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), neither the Agent nor the Euro-Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Banks, and such instructions shall be binding upon all Banks and all holders of Notes; PROVIDED, HOWEVER, that neither the Agent nor the Euro-Agent shall be required to take any action which exposes the Agent or the Euro-Agent to personal liability or which is contrary to this Agreement or applicable law. Each of the Agent and the Euro-Agent agrees to give to each Bank prompt notice of each written notice given to it by the Company pursuant to the terms of this Agreement.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent, the Euro-Agent, or any Affiliate of either of them, nor any of their respective Directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, each of the Agent and the Euro-Agent: (i) may treat the Bank that made any Advance as the holder of the Debt resulting therefrom until the Agent receives and accepts an Assignment and Acceptance entered into by such Bank, as assignor, and an Eligible Assignee, as assignee, as provided in SECTION 9.08; (ii) may consult with legal counsel (including counsel for any of the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Bank and shall not be responsible to any Bank for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of any of the Borrowers or to inspect the property (including the books and records) of any of the Borrowers; (v) shall not be responsible to any Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. CITICORP AND AFFILIATES. With respect to its Commitment the Advances made by it and the notes issued to it, Citicorp shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Agent; and the term "Bank" or "Banks" shall, unless otherwise expressly indicated, include Citicorp in its individual capacity. Citicorp and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, the Company, any of its Subsidiaries (including, without limitation, any Borrowing Subsidiary) and any Person who may do business with or own securities of the Company or any of its Subsidiaries all as if Citicorp were not the Agent and Citibank International Plc were not the Euro-Agent and without any duty to account therefor to the Banks.
SECTION 7.04. BANK CREDIT DECISION. Each Bank acknowledges that it has, independently and without reliance upon the Agent, the Euro-Agent or any other Bank and based on the financial statements referred to in SECTION 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent, the Euro-Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Banks agree to indemnify the Agent and the Euro-Agent (to the extent not reimbursed by the Borrowers), ratably according to the respective principal accounts of the A Notes then held by each of them (or if no A Notes are at the time outstanding or if any A Notes are held by Persons which are not Banks, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent or the Euro-Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent or the Euro-Agent under this Agreement, PROVIDED that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's or the Euro-Agent's gross negligence or wilful misconduct. Without limitation of the foregoing, each Bank agrees to reimburse the Agent or the Euro-Agent, as applicable, promptly on demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent and the Euro-Agent are not reimbursed for such expenses by the Borrowers.
SECTION 7.06. SUCCESSOR AGENTS. Either of the Agents may resign at any time by giving written notice thereof to the Banks and the Company and may be removed at any time with or without cause by the Majority Banks. Upon any such resignation or removal, the Majority Banks shall have the right to appoint one of the Banks as the successor Agent and such Bank or an affiliate of such Bank as the successor Euro-Agent. If no successor Agent or Euro-Agent, as applicable, shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within 30 days after the retiring Agent's or retiring Euro-Agent's giving of notice of resignation or the Majority Banks' removal of the retiring Agent or retiring Euro-Agent, then the retiring Agent or retiring Euro-Agent may, on behalf of the Banks, appoint one of the Banks (or an affiliate of one of the Banks, in the case of a successor Euro-Agent) as its successor. If none of the Banks will accept such an appointment, the retiring Agent or Euro-Agent, as applicable, may, on behalf of the Banks, appoint a successor Agent or Euro-Agent, as applicable, which, in the case of a successor Agent, shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $250,000,000, and in the case of a successor Euro-Agent, shall be a commercial bank organized under the laws of any country which is a member of the OECD, or a
political subdivision of any such country, and having a combined capital and surplus of at least $250,000,000 or the local currency equivalent thereof, PROVIDED that such bank is located in, or acting through a branch or agency located in, London, England. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, or as Euro-Agent hereunder by a successor Euro-Agent, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent or the retiring Euro-Agent, as applicable, and the retiring Agent or the retiring Euro-Agent, as applicable, shall be discharged from its duties and obligations under this Agreement. The successor Agent or the successor Euro-Agent, as applicable, shall immediately notify the Company of such appointment. After any retiring Agent's or retiring Euro-Agent's resignation or removal hereunder as Agent or Euro-Agent, as applicable, the provisions of this ARTICLE VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent or Euro-Agent, as applicable, under this Agreement.
SECTION 7.07. CO-AGENTS. Neither of the Banks identified in this Agreement as a "Co-Agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Banks as such. Without limiting the foregoing, neither of such Banks shall have or be deemed to have a fiduciary relationship with any Bank.
ARTICLE VIII
GUARANTY
SECTION 8.01. THE GUARANTY. The Company hereby unconditionally and irrevocably guarantees the due and punctual payment (whether at stated maturity, upon acceleration or otherwise) of the principal of and interest on each Note issued by any Borrowing Subsidiary (and each Advance made to any Borrowing Subsidiary not evidenced by a Note) pursuant to this Agreement, and the due and punctual payment of all other amounts payable by any Borrowing Subsidiary under this Agreement or any Local Currency Addendum. Upon failure by any Borrowing Subsidiary to pay punctually any such amount, the Company shall forthwith on demand pay the amount not so paid in the currency, at the place, in the manner and with the effect otherwise specified in ARTICLE II of this Agreement and the terms of any applicable Local Currency Addendum. If payment has become due under this guaranty as provided in the preceding sentence, the Company further agrees that if any such payment in respect of any guaranteed amounts shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of any applicable law, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such amounts in such currency or such place of payment shall be impossible or, in the judgment of any applicable Bank, not consistent with the protection of its rights or interests, then, at the election of any applicable Bank, the Company shall make payment of such amount in Dollars (based upon the applicable exchange rate in effect on the date of payment) and/or in New York.
SECTION 8.02. GUARANTY UNCONDITIONAL. The obligations of the Company hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of any Borrowing Subsidiary under this Agreement, any Note or any Local Currency Addendum or the exchange, release or non-perfection of any collateral security therefor;
(ii) any modification or amendment of or supplement to this Agreement, any Note or any Local Currency Addendum:
(iii) any change in the corporate existence, structure or ownership of any Borrowing Subsidiary, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Borrowing Subsidiary or its assets;
(iv) the existence of any claim, set-off or other rights which the Company may have at any time against any Borrowing Subsidiary, the Agent, the Euro-Agent, any Local Currency Agent, any Bank or any other Person, whether in connection herewith or any unrelated transactions, PROVIDED that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(v) any invalidity or unenforceability relating to or against any Borrowing Subsidiary for any reason of any provision or all of this Agreement, any Note or any Local Currency Addendum, or any provision of applicable law or regulation purporting to prohibit the payment by any Borrowing Subsidiary of the principal of or interest on any Advance or any other amount payable by it under this Agreement; or
(vi) any other act or omission to act or delay of any kind by any Borrowing Subsidiary, the Agent, the Euro-Agent, any Local Currency Agent, any Bank or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of the Company's obligations hereunder.
SECTION 8.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full force and effect until the principal of and interest on the Notes, all Advances not evidenced by the Notes and all other amounts payable by the Company and each Borrowing Subsidiary under this Agreement shall have been paid in full and shall survive the Termination Date. If at any time any payment of the principal of or interest on any Note, or on any Advance not evidenced by a Note, or any other amount payable by any Borrowing Subsidiary under this Agreement is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of any Borrowing Subsidiary or otherwise, the Company's obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had been due but not made at such time.
SECTION 8.04. WAIVER BY THE COMPANY. The Company irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any right be exhausted or any action be taken by the Agent, the Euro-Agent, any Local Currency Agent, any Bank or any other Person against any Borrowing Subsidiary or any other Person or any collateral security.
SECTION 8.05. SUBROGATION. Upon making any payment hereunder, the Company shall be subrogated to the rights of the Banks against any such Borrowing Subsidiary with respect to such payment; PROVIDED that the Company shall not enforce any right or demand or receive any payment by way of subrogation until all amounts of principal of and interest on the Notes of such Borrowing Subsidiary and all other amounts payable by such Borrowing Subsidiary under this Agreement and any Local Currency Addendum to which such Borrowing Subsidiary is a party have been paid in full.
SECTION 8.06. STAY OF ACCELERATION. In the event that acceleration of the time for payment of any amount payable by any Borrowing Subsidiary under this Agreement or any of its Notes is stayed upon the insolvency, bankruptcy or reorganization of such Borrowing Subsidiary, all such amounts otherwise subject to acceleration under the terms of this Agreement shall nonetheless be payable by the Company hereunder forthwith on demand by the Agent for the account of the Banks.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. Except as provided by SECTION 2.05(d), no amendment or waiver of any provision of this Agreement, the A Notes or any Local Currency Addendum, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by (x) the Majority Banks, in the case of this Agreement or the A Notes, or (y) the Majority Local Currency Banks under any Local Currency Addendum, in the case of such Local Currency Addendum, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; PROVIDED, HOWEVER, that (a) no amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following: (i) waive any of the conditions specified in SECTION 3.01, 3.02, 3.03 (if and to the extent that the A Borrowing which is the subject of such waiver would involve an increase in the aggregate outstanding amount of A Advances over the aggregate amount of A Advances outstanding immediately prior to such A Borrowing) or 3.04; PROVIDED that the conditions set forth in SECTIONS 3.04(iii) and 3.04(iv) with respect to any B Borrowing may be waived by the Banks making B Advances as part of such B Borrowing; (ii) increase the Commitments of the Banks or subject the Banks to any additional obligations, (iii) reduce the principal of, or interest on, the A Notes or any fees or other amounts payable hereunder, (iv) postpone any date fixed for any payment of principal of, or interest on, the A Notes or any fees or other amounts payable hereunder, (v) release the Company's guaranty obligations pursuant to ARTICLE VIII, (vi) change the percentage of the Commitments, or of the aggregate unpaid principal amount of the Notes, or of the Local Currency Commitments, or the unpaid principal amount of the Local Currency Advances, which shall be required for the Banks
or any of the Banks to take any action hereunder or (vii) amend this SECTION
9.01; (b) after a Change of Control has occurred, no amendment, waiver or
consent shall be effective with respect to SECTION 5.03 unless the same shall be
in writing and signed by Banks holding at least 65% of the then aggregate unpaid
principal amount of the Committed Advances held by Banks, or, if no such
principal amount is then outstanding, Banks having at least 65% of the
Commitments; (c) no amendment, waiver or consent shall, unless in writing and
signed by the Agent and/or the Euro-Agent and/or any Local Currency Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Agent and/or the Euro-Agent, and/or such Local Currency Agent, as
applicable, under this Agreement or any applicable Local Currency Addendum; and
(d) no amendment, waiver or consent shall, unless in writing and signed by all
of the Local Currency Banks party to a Local Currency Addendum, do any of the
following: (i) waive any of the conditions specified in SECTION 3.05; (ii)
increase the Local Currency Commitments of the Local Currency Banks thereunder
or subject such Local Currency Banks to any additional obligations; (iii) reduce
the principal of, or interest on, any Local Currency Advances made pursuant
thereto; (iv) postpone any date fixed for any payment of principal of, or
interest on, any Local Currency Advance payable thereunder;
SECTION 9.02. NOTICES, ETC. All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic, telex or cable communication) and mailed, telecopied, telegraphed, telexed, cabled or delivered,
(i) if to the Company, at its address at Ecolab Center, St. Paul, Minnesota 55102, Attention: Treasurer, Telecopier No. 612-293-2401, with a copy to the Company at the same address, Attention: General Counsel;
(ii) if to any Borrowing Subsidiary, at its address specified in its Election to Participate;
(iii) if to any Bank, at its Domestic Lending Office specified opposite its name on SCHEDULE I hereto or specified in the Assignment and Acceptance pursuant to which it became a party hereto;
(iv) if to the Agent, at its address at Bank Loan Syndications, Two Penns Way, Suite 200, New Castle, Delaware 19720, Attention: Lisa Rodriguez, Telecopier No. 302-894-6120, with a copy to Citicorp Securities, Inc., 500 West Madison Street, Chicago, Illinois 60661, Attention: Lesley Noer, Telecopier No. 312-627-3990;
(v) if to the Euro-Agent, at its address at Riverdale House, 68 Molesworth Street, Lewisham SE13 7EU, England, Attention: Andrew Bennett, Loans Agency, Telecopier No. 0171-500-4482, Telex No. 299831 CIBLA; and
(vi) if to any Local Currency Agent, at its address set forth in the applicable Local Currency Addendum;
or, as to the Company, the Agent, the Euro-Agent or any Local Currency Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Company, the Agent, the Euro-Agent and any Local Currency Agent. All such notices and communications shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective when deposited in the mails, telecopied, delivered to the telegraph company, confirmed by telex answerback or delivered to the cable company, respectively, except that notices and communications to the Agent or the Euro-Agent pursuant to ARTICLE II or VII, or to any Local Currency Agent pursuant to the Local Currency Addendum to which it is a party, shall not be effective until received by the Agent, the Euro-Agent or such Local Currency Agent, as applicable.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any Bank or the Agent, Euro-Agent or any Local Currency Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS AND EXPENSES. (a) The Company agrees to pay on demand all reasonable, out-of-pocket costs and expenses of the Agent, the Euro-Agent and any Local Currency Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the notes and the other documents to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent, the Euro-Agent and any Local Currency Agent with respect thereto and with respect to advising the Agent, the Euro-Agent and any Local Currency Agent as to rights and responsibilities under this Agreement, and all costs and expenses, if any, of the Agent, the Euro-Agent, any Local Currency Agent and the Banks (including, without limitation, reasonable counsel fees and expenses, which may be allocated costs of counsel who are employees of any Bank) in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes, any Local Currency Addendum and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this SECTION 9.04(a).
(b) If any payment of principal of any Fixed Rate Advance is made other than on the last day of the Interest Period for such Advance, as a result of acceleration of the maturity of the Notes and Advances not evidenced by the Notes pursuant to SECTION 6.01 or for any other reason, including the purchase of an assignment pursuant to SECTION 2.05(e), the applicable Borrower shall, upon demand by any Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment, including, without limitation, any loss, cost or expense reasonably incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Advance. Such Bank's demand shall set forth the reasonable basis for calculation of such loss, cost or expense.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making by the Majority Banks of the request or the granting of the consent specified by SECTION 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions of SECTION 6.01, each Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank to or for the credit or the account of the Company or the applicable Borrowing Subsidiary against any and all of the obligations of the Company or the applicable Borrowing Subsidiary now or hereafter existing under this Agreement, the Notes held by such Bank, and any Local Currency Addendum to which such Bank is a party, irrespective of whether or not such Bank shall have made any demand under this Agreement, any such Note or such Local Currency Addendum and although such obligations may be unmatured. Each Bank agrees promptly to notify the Company after any such set-off and application made by such Bank, PROVIDED that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Bank under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Bank may have.
SECTION 9.06. JUDGMENT. (a) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder or under the Notes in any currency (the "ORIGINAL CURRENCY") into another currency (the "OTHER CURRENCY") the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Euro-Agent could purchase the Original Currency with the Other Currency at London, England on the third Business Day preceding that on which final judgment is given.
(b) The obligation of the applicable Borrower in respect of any sum due in the Original Currency from it to any Bank or the Agent, Euro-Agent or any Local Currency Agent hereunder, under the Notes held by such Bank, or under any Local Currency Addendum shall, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business Day following receipt by such Bank, the Agent, Euro-Agent or such Local Currency Agent (as the case may be) of any sum adjudged to be so due in such Other Currency such Bank, the Agent, Euro-Agent or such Local Currency Agent (as the case may be) may in accordance with normal banking procedures purchase the Original Currency with such Other Currency; if the amount of the Original Currency so purchased is less than the sum originally due to such Bank or the Agent, Euro-Agent or such Local Currency Agent (as the case may be) in the Original Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Bank, the Agent, Euro-Agent or such Local Currency Agent (as the case may be) against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to any Bank, the Agent, Euro-Agent or such Local Currency Agent (as the case may be) in the Original Currency, such Bank or the Agent, Euro-Agent or such Local Currency Agent (as the case may be) agrees to remit to such Borrower such excess.
SECTION 9.07. BINDING EFFECT. This Agreement shall become effective when it shall have been executed by the Company and the Agent and Euro-Agent and when the Agent
shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Agent, the Euro-Agent and each Bank and their respective successors and assigns, except that the Borrowers shall not have the right to assign their respective rights hereunder or any interest herein without the prior written consent of the Banks.
SECTION 9.08. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Bank may, upon obtaining the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed), assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement and, on a percentage basis equal to the percentage of the Commitment being assigned, under any Local Currency Addendum (including, without limitation, all or a portion of its Commitment, any Local Currency Commitment, the Advances owing to it and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Bank's rights and obligations so assigned, (ii) the amount of the Commitment of the assigning Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) may be in the amount of such Bank's entire Commitment but otherwise shall not be less than $15,000,000 and shall be an integral multiple of $500,000 unless the Borrower and the Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and in the case of an assignment of rights and obligations under a Local Currency Addendum, each such assignment shall be to an entity that qualifies as an Eligible Local Currency Bank under the terms of such Local Currency Addendum, and (iv) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance (and such other document or documents as may be required by any applicable Local Currency Addendum), together with a processing and recordation fee of $3,000; and PROVIDED, FURTHER, that, notwithstanding the foregoing, each Bank may, without the consent of the Company and without the payment of the processing and recordation fee, assign to one or more Affiliates of such Bank all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least two Business Days after the execution thereof, (x) the assignee thereunder shall be a party hereto and to any Local Currency Addendum, if applicable, and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and under any such Local Currency Addendum and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement and under any such Local Currency Addendum (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Bank's
rights and obligations under this Agreement, such Bank shall cease to be a party hereto and to any such Local Currency Addendum).
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Agreement or any Local Currency Addendum or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or
any Borrowing Subsidiary or the performance or observance by the Company or
any Borrowing Subsidiary of any of its obligations under this Agreement or
any Local Currency Addendum or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, and any applicable Local Currency Addendum, together
with copies of the financial statements referred to in SECTION 4.01 and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee and, if applicable, an Eligible Local Currency Bank; (vi) such
assignee appoints and authorizes each of the Agent, the Euro-Agent and any
Local Currency Agent, if applicable, to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Agent, the Euro-Agent, and any such Local Currency Agent, as
applicable, by the terms hereof and of any applicable Local Currency
Addendum, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement and
of any applicable Local Currency Addendum are required to be performed by
it as a Bank.
(c) The Agent shall maintain at its address referred to in SECTION 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent, the Euro-Agent, any Local Currency Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Bank and an assignee representing that (x) it is an Eligible Assignee, and, (y) in the case of an assignment of rights and obligations under a Local Currency Addendum, representing that it is (or its Affiliate, branch or agency which will be the Local Currency Bank is) an Eligible Local Currency Bank under the terms of such Local Currency Addendum, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT C-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(e) Each Bank may sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement and, on a percentage basis equal to the percentage of the Commitment so participated, any applicable Local Currency Addendum (including, without limitation, all or a portion of its Commitment and the Advances owing to it and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Bank's obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and any applicable Local Currency Addendum shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Bank shall remain the holder of any such Note and the maker of any Advance for all purposes of this Agreement, (iv) the Borrowers, the Agent, the Euro-Agent, any Local Currency Agent and the other Banks shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement, and (v) any agreement between such Bank and any participant in connection with such participating interest shall not restrict such Bank's right to agree to any amendment or waiver of any provision of this Agreement or any applicable Local Currency Addendum, or any consent to any departure by any Borrower therefrom, except (to the extent such participant would be affected thereby) a reduction of the principal of, or interest on, any Advance or postponement of any date fixed for payment thereof or a release of the Company's guaranty obligations pursuant to ARTICLE VIII.
(f) Any Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this SECTION 9.08, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Bank by or on behalf of the Borrowers; PROVIDED that, prior to any such disclosure of non-public information, such Bank shall have obtained the Company's consent (which consent shall not be unreasonably withheld or delayed) and, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Bank.
(g) Notwithstanding any other provisions set forth in this Agreement, any Bank at any time may assign, as collateral or otherwise, any of its rights (including, without limitation, rights to payments of principal of and/or interest on the Advances) under this Agreement to any Federal Reserve Bank without notice to or consent of the Company,
any Borrowing Subsidiary, any other Bank, the Agent, the Euro-Agent or any Local Currency Agent.
SECTION 9.09. CONSENT TO JURISDICTION. (a) Each Borrowing Subsidiary hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in New York City and any appellate court from any thereof in any action or proceeding arising out of or relating to this Agreement and hereby irrevocably agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or in such Federal court. Each Borrowing Subsidiary hereby irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such action or proceeding. Each Borrowing Subsidiary hereby irrevocably appoints CT Corporation System (the "PROCESS AGENT"), with an office on the date hereof at 1633 Broadway, New York, New York 10019, United States, as its agent to receive on behalf of such Borrowing Subsidiary and its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding. Such service may be made by mailing or delivering a copy of such process to such Borrowing Subsidiary in care of the Process Agent at the Process Agent's above address with a copy to such Borrowing Subsidiary at its address specified in its Election to Participate, and such Borrowing Subsidiary hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, each Borrowing Subsidiary also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such Borrowing Subsidiary at its address specified in its Election to Participate. Each Borrowing Subsidiary agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Nothing in this SECTION 9.09 shall affect the right of the Agent, the Euro-Agent, any Local Currency Agent or any Bank to serve legal process in any other manner permitted by law or affect the right of the Agent or any Bank to bring any action or proceeding against any Borrowing Subsidiary or its property in the courts of any other jurisdictions.
SECTION 9.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.11. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SECTION 9.12. INDEMNIFICATION. The Company agrees to indemnify and hold harmless the Agent, the Euro-Agent, each Local Currency Agent, each Bank and each of their affiliates and their respective directors, officers, employees and agents (each, an "INDEMNIFIED PARTY") from and against any and all claims, damages, liabilities and expenses (including, without limitation, fees and disbursements of counsel) which may be incurred by or asserted against any Indemnified Party in connection with or arising out of any investigation, litigation or
proceeding related to the Advances, the Notes, this Agreement, any Local Currency Addendum, any of the transactions contemplated hereby, or the use of the proceeds of the Borrowings by the Borrowers, whether or not such Indemnified Party is a party thereto, PROVIDED, HOWEVER, that the Company shall not be liable for any portion of such claims, damages, liabilities and expenses of an Indemnified Party resulting from such Indemnified Party's gross negligence or willful misconduct or for such claims and liabilities settled without the consent of the Company. Each Bank agrees to give the Company prompt written notice of any investigation, litigation or proceeding which may lead to a claim for indemnification under this Section, PROVIDED that the failure to give such notice shall not affect the validity or enforceability of the indemnification hereunder.
SECTION 9.13. CONFIDENTIALITY. Each Bank hereby agrees that it will
use reasonable efforts to keep confidential any information from time to time
supplied to it by the Company under SECTION 5.01(b) or otherwise in connection
with this Agreement, which the Company designates in writing at the time of its
delivery to the Bank is to be treated confidentially; PROVIDED, HOWEVER, that
nothing herein shall affect the disclosure of any such information to: (i) the
extent required by statute, rule, regulation or judicial process; (ii) counsel
for any Bank, the Agent, the Euro-Agent or any Local Currency Agent or to their
respective accountants; (iii) bank examiners and auditors; (iv) the Agent, the
Euro-Agent, any Local Currency Agent, any Local Currency Bank, any other Bank,
or, subject to the provisions of SECTION 9.08(f), any transferee or prospective
transferee of any Note; or (v) any other Person in connection with any
litigation to which any one or more of the Banks is a party; PROVIDED FURTHER,
HOWEVER, that each Bank hereby agrees that it will use reasonable efforts to
promptly notify the Company of any request for information under this subpart
(v) or with respect to any request for information not enumerated in this
SECTION 9.13.
SECTION 9.14. NON-RELIANCE BY THE BANKS. Each Bank by its signature to this Agreement represents and warrants that (i) it has not relied in the extension of the credit contemplated by this Agreement, nor will it rely in the maintenance thereof, upon any assets of the Company or its Subsidiaries consisting of Margin Stock as collateral and (ii) after reviewing the financial statements of the Company and its Subsidiaries referred to in SECTION 4.01(e), such Bank has concluded therefrom that the consolidated cash flow of the Company and its Subsidiaries is sufficient to support the credit extended to the Company pursuant to this Agreement.
SECTION 9.15. NO INDIRECT SECURITY. Notwithstanding any Section or provision of this Agreement to the contrary, nothing in this Agreement shall (i) restrict or limit the right or ability of the Company or any of its Subsidiaries to pledge, mortgage, sell, assign, or otherwise encumber or dispose of any Margin Stock, or (ii) create an Event of Default arising out of or relating to any such pledge, mortgage, sale, assignment or other encumbrance or disposition.
SECTION 9.16. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE BORROWING SUBSIDIARIES, THE AGENT, THE EURO-AGENT, EACH LOCAL CURRENCY AGENT AND THE BANKS IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, AMONG ANY OF THE PARTIES HERETO ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY NOTE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
SECTION 9.17. EFFECTIVENESS OF AMENDMENT AND RESTATEMENT. The amendment and restatement of this Agreement dated as of December 13, 2000, shall be effective as of such date when, and only when, the Agent shall have received counterparts of this Agreement (as so amended and restated) executed by the Borrower and all of the Banks. Upon the Restatement Date, the terms and provisions of the Original Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Restated Agreement. This Restated Agreement is not intended to and does not constitute a novation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
ECOLAB INC.
By: /s/ Daniel J. Schmechel
-----------------------------
Vice President and Treasurer
|
CITICORP USA, INC., as Administrative Agent
By: /s/ Mary O'Connell
-----------------------------
Vice President
|
CITIBANK INTERNATIONAL PLC, as Euro-Agent
By: /s/ David F. Basset
------------------------------
Vice President
|
CREDIT SUISSE FIRST BOSTON, as Co-Agent
By: /s/ David W. Kratovil
-------------------------------
Director
By: /s/ Bill O'Daly
-------------------------------
Vice President
|
BANK ONE, NA (Main Office Chicago), as Co-Agent
By: /s/ J. Garland Smith
--------------------------------
Title: Managing Director
|
Signature Page 1
BANKS
COMMITMENT
$53,000,000 CITICORP USA, INC.
By: /s/ Mary O'Connell
-------------------------------
Vice President
$45,000,000 CREDIT SUISSE FIRST BOSTON
By: /s/ David W. Kratovil
-------------------------------
Title: Director
By: /s/ Bill O'Daly
-------------------------------
Title: Vice President
$45,000,000 BANK ONE, NA (Main Office Chicago)
By: /s/ J. Garland Smith
-------------------------------
Title: Managing Director
$33,000,000 WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Allison S. Gelfman
-------------------------------
Title: Vice President
By: /s/ Donglas A. Lindstrom
-------------------------------
Title: Vice President
$33,000,000 MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
-------------------------------
Title: Vice President
|
Signature Page 2
$33,000,000 BANK OF AMERICA, N.A.
By: /s/ David Noda
-------------------------------------
Title:
$33,000,000 WACHOVIA BANK, N.A.
By: /s/ Thomas N. McKinstry
-------------------------------------
Title:
$275,000,000 Total of the Commitments
|
Signature Page 3
EXHIBIT A-1
FORM OF A NOTE
Dated: __________ __, 20__
FOR VALUE RECEIVED, the undersigned, [ECOLAB INC.]
[Name of Borrowing Subsidiary], a [Delaware corporation] [_____________] (the
"Borrower"), HEREBY PROMISES TO PAY to the order of ___________ (the "Bank")
for the account of its Applicable Lending Office (as defined in the Credit
Agreement referred to below) the aggregate principal amount of the A Advances
(as defined in the Credit Agreement referred to below) made by the Bank to
the Borrower pursuant to the Credit Agreement, payment thereof to be made on
the Termination Date (as defined in the Credit Agreement).
The Borrower promises to pay interest on the unpaid principal amount of each A Advance from the date of such A Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each A Advance denominated (i) in United States Dollars are payable in lawful money of the United States of America to the Agent (as defined below) at the office of Citibank, N.A. at 399 Park Avenue, New York, New York 10043, United States of America, in same day funds and (ii) in any currency other than United States Dollars are payable in such currency to the Euro-Agent (as defined below) at the office of the Euro-Agent which the Euro-Agent shall designate for such payment in same day funds. Each A Advance made by the Bank to the Borrower pursuant to the Credit Agreement, and all payments made on account of the principal amount thereof, shall be recorded by the Bank and, prior to any transfer hereof, endorsed on the grid attached hereto which is a part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of, the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (as the same may be hereafter amended, restated, supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"), among Ecolab Inc., the Bank and certain other banks parties thereto, and Citicorp USA, Inc., as administrative agent (the "Agent") for the Bank and such other banks Citibank International plc, as agent (the "Euro-Agent") for the Bank and such other banks in connection with certain advances, and Bank One, NA and Credit Suisse First Boston, as Co-Agents thereunder. [The Borrower has executed and delivered to the Agent a duly completed "Election to Participate" dated as of __________, 20___ and has, in accordance with the terms of the Credit Agreement, become a "Borrowing Subsidiary" under the Credit Agreement.](1) The Credit Agreement, among other things, (i) provides for the making of "A Advances" by the Bank to the Borrower from time to time in an aggregate amount (together with all other "Advances" made by the Bank to other "Borrowers"
Exhibit A-1 - 1
under and as defined in the Credit Agreement) not to exceed at any time outstanding the Bank's Commitment (as defined in the Credit Agreement), the indebtedness of the Borrower resulting from each such A Advance made to the Borrower by the Bank being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York, United States.
[NAME OF BORROWER]
By:_________________________________
Title:
Exhibit A-1 - 2
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------- ------------------- -------------------- ------------------- ----------------
Date Currency & Amount of Unpaid Principal Notation
Amount of Principal Paid Balance Made By
Advance or Prepaid
----------------- ------------------- -------------------- ------------------- ----------------
----------------- ------------------- -------------------- ------------------- ----------------
----------------- ------------------- -------------------- ------------------- ----------------
|
Exhibit A-1 - 3
EXHIBIT A-2
FORM OF B NOTE
[Currency and Amount] Dated: ____________, 20__
FOR VALUE RECEIVED, the undersigned, [ECOLAB INC.] [Name of Borrowing Subsidiary], a [Delaware corporation] [___________] (the "Borrower"), HEREBY PROMISES TO PAY to the order of _____________________________ (the "Bank") for the account of its Applicable Lending Office (as defined in the Credit Agreement referred to below), on __________, 20__, the principal amount of ______________ [Currency and Amount] (______________).
The Borrower promises to pay interest on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full, at the interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis of a year of ____days for the actual number of days elapsed).
Interest Payment Date or Dates: _________________________
Both principal and interest are payable in [state the currency] to [the Agent (as defined below) for the account of the Bank at the office of Citibank, N.A. at 399 Park Avenue, New York, New York 10043] [the Euro-Agent (as defined below) for the account of the Bank at the office of ______________ at __________________](2) in same day funds and, subject to the terms of the Credit Agreement, free and clear of and without any deduction, with respect to the payee named above, for any and all present and future taxes, deductions, charges or withholdings, and all liabilities with respect thereto.
This Promissory Note is one of the B Notes referred to in, and is entitled to the benefits of, the Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Ecolab Inc., the Bank and certain other banks parties thereto, Citicorp USA, Inc. as administrative agent (the "Agent") for the Bank and such other banks, Citibank International plc, as agent (the "Euro-Agent") for the Bank and such other banks in connection with certain advances, and Bank One, NA and Credit Suisse First Boston as "Co-Agents" thereunder. [The Borrower has executed and delivered to the Agent a duly completed "Election to Participate" dated as of ______________, [19__/20__] and has, in
Exhibit A-2 - 1
accordance with the terms of the Credit Agreement, become a "Borrowing Subsidiary" under the Credit Agreement.](3). The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York, United States.
[BORROWER]
By:____________________________
Title:
Exhibit A-2 - 2
EXHIBIT B-1
NOTICE OF A BORROWING
[Date]
[Citibank International plc,
as Euro-Agent
Loan Agency Department
Third Floor
Riverdale House
68 Molesworth Street
Lewisham SE13 7EU England
Attention: Kenneth Purchase](4)
Citicorp USA, Inc., as Administrative Agent
Bank Loan Syndications
Two Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Lisa Rodriguez
Citicorp Securities, Inc.
500 West Madison Street
Chicago, Illinois 60661
Attention: Lesley Noer
Ladies and Gentlemen:
The undersigned, Ecolab Inc. (the "Company"), refers to the Multicurrency Credit Agreement, dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, certain Banks parties thereto, Citicorp USA, Inc., as administrative agent for said Banks (the "Agent"), Citibank International plc as "Euro-Agent" thereunder and Bank One, NA and Credit Suisse First Boston as "Co-Agents" thereunder. The undersigned hereby gives you notice, irrevocably, pursuant to SECTION 2.02 of the Credit Agreement that the undersigned hereby requests an A Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such A Borrowing (the "Proposed Borrowing") as required by SECTION 2.02(a) of the Credit Agreement:
(i) The Borrower is proposed to be _________________.
Exhibit B-1 - 1
(ii) The Business Day of the Proposed Borrowing
is _____________, 20__.
(iii) The Type of Advances comprising the Proposed Borrowing
is [Base Rate Advances] [Adjusted CD Rate Advances]
[Eurocurrency Advances].
(iv) The currency of the Proposed Borrowing is
___________.(5)
(v) The aggregate amount of the Proposed Borrowing
is _______.
[(vi) The Interest Period for each A Advance made as part of
the Proposed Borrowing is [___ days] [____ months].(6)
[(vii) The exchange rate in respect of the Proposed Borrowing
is ______________.](7)
|
[viii] The Proposed Borrowing is a Designated A Borrowing.(8)
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in
[subsections (a), (b), (c) and (d) of SECTION 4.01](9) [SECTION 4.01
(other than subsections(j) and (o) thereof)](10) of the Credit
Agreement are correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date; and
(B) No event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, which
(6) To be included for a Proposed Borrowing comprised of Adjusted CD Rate Advances or Eurodollar Advances.
(7) To be included for a Proposed Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency.
(8) To be included for a Designated A Borrowing, as defined and described in
SECTION 2.01(b) of the Credit Agreement.
(9) To be used unless the conditions precedent set forth in SECTION 3.03 of the Credit Agreement apply to the Proposed Borrowing.
(10) To be used if the conditions precedent set forth in SECTION 3.03 of the Credit Agreement apply to the Proposed Borrowing.
Exhibit B-1 - 2
constitutes an Event of Default [or would constitute an Event of Default but for the requirement that notice be given or time elapse or both].(11)
(C) The Credit Ratings of the Company are as follows:
S&P _________ and Moody's________.
[(D) The proposed Borrower has become, and remains qualified as, a "Borrowing Subsidiary" under and in accordance with the terms of the Credit Agreement and the representations and warranties contained in SECTION 4.02 of the Credit Agreement are correct as to the proposed Borrower in all material respects, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date.](12)
Very truly yours,
ECOLAB INC.
By: _____________________________
Title:
(12) To be included if the proposed Borrower is not the Company.
Exhibit B-1 - 3
EXHIBIT B-2
NOTICE OF B BORROWING
(Dollars)
[Date]
Citicorp USA, Inc., as Administrative Agent
Bank Loan Syndications
Two Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Lisa Rodriguez
Citicorp Securities, Inc.
500 West Madison Street
Chicago, Illinois 60661
Attention: Lesley Noer
Ladies and Gentlemen:
The undersigned, Ecolab Inc. (the "Company"), refers to the Credit Agreement, dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, certain Banks parties thereto, Citicorp USA, Inc., as administrative agent (the "Agent") for said Banks, Citibank International plc as "Euro-Agent" thereunder and Bank One, NA and Credit Suisse First Boston as "Co-Agents" thereunder. The undersigned hereby gives you notice pursuant to SECTION 2.03(b) of the Credit Agreement that the undersigned hereby requests a B Borrowing denominated in Dollars under the Credit Agreement, and in that connection sets forth the terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Borrower: ______________________________________
(B) Date of B Borrowing:____________________________
(C) Amount of B Borrowing: _________________________
(D) Maturity Date: _________________________________
(E) Interest Rate Basis: ___________________________
(F) Interest Payment Date(s): ______________________
(G) _____________________ ______________________
(H) _____________________ ______________________
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed B Borrowing:
Exhibit B-2 - 1
(b) the representations and warranties contained in SECTION
4.01 (other than SUBSECTIONS (j) and (o) thereof) of the Credit
Agreement are correct in all material respects, before and after
giving effect to the Proposed B Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date;
(c) no event has occurred and is continuing, or would result from the Proposed B Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(d) the aggregate amount of the Proposed B Borrowing and all
other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused Commitments of the Banks;
[and]
(e) the Credit Ratings of the Company are as follows:
S&P _____ and Moody's ______[.] [; and]
[(e) the proposed Borrower has become, and remains qualified as, a "Borrowing Subsidiary" under and in accordance with the terms of the Credit Agreement and the representations and warranties contained in SECTION 4.02 of the Credit Agreement are correct as to the proposed Borrower in all material respects, before and after giving effect to the Proposed B Borrowing and to the application of the proceeds therefrom, as though made on and as of such date.](13)
The undersigned hereby confirms that the Proposed B Borrowing is to be made available to it in accordance with SECTION 2.03(b) and (e) of the Credit Agreement.
Very truly yours,
ECOLAB INC.
By: __________________________
Title:
Exhibit B-2 - 2
EXHIBIT B-3
NOTICE OF B BORROWING
(Alternative Currency)
[Date]
Citibank International plc,
as Euro-Agent
Loan Agency Department
Third Floor
Riverdale House
68 Molesworth Street
Lewisham SE13 7EU England
Attention: Kenneth Purchase
Citicorp USA, Inc., as Administrative Agent
Bank Loan Syndications
Two Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Lisa Rodriguez
Citicorp Securities, Inc.
500 West Madison Street
Chicago, Illinois 60661
Attention: Lesley Noer
Ladies and Gentlemen:
The undersigned, Ecolab Inc. (the "Company"), refers to the Credit Agreement, dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, certain Banks parties thereto, Citicorp USA, Inc., as administrative agent (the "Agent") for said Banks, Citibank International plc as "Euro-Agent" thereunder and Bank One, NA and Credit Suisse First Boston as "Co-Agents" thereunder. The undersigned hereby gives you notice pursuant to SECTION 2.03(c) of the Credit Agreement that the undersigned hereby requests a B Borrowing denominated in an Alternative Currency under the Credit Agreement, and in that connection sets forth the terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Borrower:______________________________________
(B) Alternative Currency:__________________________
(C) Date of B Borrowing:___________________________
(D) Amount of B Borrowing:_________________________
Exhibit B-3 - 1
(E) Maturity Date:_________________________________
(F) Interest Rate Basis:___________________________
(G) Interest Payment Date(s):______________________
(H) Exchange Rate:______________________________
(I) ___________________________________________
(J) ___________________________________________
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed B Borrowing:
(a) the representations and warranties contained in SECTION
4.01 (other than SUBSECTIONS (j) and (o) thereof) of the Credit
Agreement are correct in all material respects, before and after giving
effect to the Proposed B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the Proposed B Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(c) the aggregate amount of the Proposed B Borrowing and all
other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused Commitments of the Banks;
[and]
(d) the Credit Ratings of the Company are as follows:
S&P _____ and Moody's ______[.] [; and]
[(e) the proposed Borrower has become, and remains qualified as, a "Borrowing Subsidiary" under and in accordance with the terms of the Credit Agreement and the representations and warranties contained in SECTION 4.02 of the Credit Agreement are correct as to the proposed Borrower in all material respects, before and after giving effect to the Proposed B Borrowing and to the application of the proceeds therefrom, as though made on and as of such date.](14)
The undersigned hereby confirms that the Proposed B Borrowing is to be made available to it in accordance with SECTION 2.03(c) and (e) of the Credit Agreement.
Very truly yours,
ECOLAB INC.
By: _________________________
Title:
Exhibit B-3 - 2
EXHIBIT B-4
NOTICE OF LOCAL CURRENCY BORROWING
[Date]
[Name and address of Local
Currency Agent]
Citicorp USA, Inc., as Administrative Agent
Bank Loan Syndications
Two Penns Way, Suite 200
New Castle, Delaware 19720
Attention: Lisa Rodriguez
Citicorp Securities, Inc.
500 West Madison Street
Chicago, Illinois 60661
Attention: Lesley Noer
Ladies and Gentlemen:
The undersigned, Ecolab Inc. (the "Company"), refers to (1) the Multicurrency Credit Agreement, dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, certain Banks parties thereto, Citicorp USA, Inc., as administrative agent for said Banks (the "Agent"), Citibank International plc as "Euro-Agent" thereunder and Bank One, NA and Credit Suisse First Boston as "Co-Agents" thereunder, and (2) that certain ___________ Local Currency Addendum dated as of ____________, ____________ among ____________ (the "Borrowing Subsidiary"), the Company, the Agent, the Local Currency Agent named therein and the Local Currency Banks party thereto (the "Addendum"). The undersigned hereby gives you notice, irrevocably, pursuant to SECTION 2.02B of the Credit Agreement and the Addendum that the undersigned hereby requests a Local Currency Borrowing under the Credit Agreement and the Addendum, and in that connection sets forth below the information relating to such Local Currency Borrowing (the "Proposed Borrowing") as required by SECTION 2.02B(a) of the Credit Agreement:
(i) The Borrower is proposed to be [name of Borrowing Subsidiary or the Company.]
Exhibit B-4 - 1
(ii) The Business Day of the Proposed Borrowing is ________, 20__.
(iii) The Type of Advances comprising the Proposed Borrowing is [Floating Rate Advances] [Eurocurrency Advances] [other type of Fixed Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is ___.
[(v) The Interest Period for each Advance made as part of the Proposed Borrowing is [___ days] [___ months].*
(vi) The exchange rate in respect of the Proposed Borrowing is ______________.]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in
[subsections (a), (b), (c) and (d) of SECTION 4.01]** [SECTION 4.01
(other than subsections(j) and (o) thereof)]*** of the Credit Agreement
are correct in all material respects, before and after giving effect to
the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) No event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, which constitutes an Event of Default [or would constitute an Event of Default but for the requirement that notice be given or time elapse or both].****
(C) The Credit Ratings of the Company are as follows:
S&P _________ and Moody's ________.
(D) The proposed Borrower has become, and remains qualified as, a "Borrowing Subsidiary" under and in accordance with the terms of the Credit Agreement and the representations and warranties contained in SECTION 4.02 of the Credit Agreement are correct as to the proposed Borrower in all material respects, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date.
Very truly yours,
ECOLAB INC.
By: ____________________________
Title:
** To be used unless the conditions precedent set forth in SECTION 3.03 of the Credit Agreement apply to the Proposed Borrowing.
*** To be used if the conditions precedent set forth in SECTION 3.03 of the Credit Agreement apply to the Proposed Borrowing.
**** To be included if the conditions precedent set forth in SECTION 3.03 of the Credit Agreement apply to the Proposed Borrowing.
Exhibit B-4 - 2
EXHIBIT C-1
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________ __, 20__
Reference is made to the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement"), among Ecolab Inc., a Delaware corporation (the "Company"), the Banks (as defined in the Credit Agreement), Citicorp USA, Inc., as administrative agent for the Banks (the "Agent"), Citibank International plc, as Euro-Agent for the Banks (the "Euro-Agent"), and Bank One, NA and Credit Suisse First Boston, as Co-Agents. Terms defined in the Credit Agreement are used herein with the same meaning.
_________(the "Assignor") and __________(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a __%* interest in and to all of the Assignor's rights and obligations under the Credit Agreement as of the Effective Date (as defined below) (including, without limitation, such percentage interest in (i) the Assignor's Commitment, which (after giving effect to any other assignments thereof made prior to the Effective Date, whether or not such assignments have been effective, but without giving effect to any other assignments thereof also made on the Effective Date) is $ (or the equivalent thereof in one or more Alternative Currencies), [and each of the Assignor's Local Currency Commitments, which (after giving effect to any other assignments thereof made prior to the Effective Date, whether or not such assignments have been effective, but without giving effect to any other assignments thereof also made on the Effective Date) is $______ under the [_________________ Local Currency Addendum]], (ii) the aggregate outstanding principal amount of Advances owing to the Assignor on the Effective Date, which (after giving effect to any other assignments thereof made prior to the date hereof, whether or not such assignments have been effective, but without giving effect to any other assignments thereof also made on the Effective Date) is $___ (or the equivalent thereof in one or more Alternative Currencies), and (iii) the Note[s] held by the Assignor).
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or any Local Currency Addendum to which it is a party, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any Local Currency Addendum to which it is a party or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or Borrowing Subsidiary or the performance or observance by the Company or Borrowing Subsidiary of
Exhibit C-1-1
any of its obligations under the Credit Agreement, any Local Currency Addendum to which it is a party or any other instrument or document furnished pursuant thereto and (iv) attaches the Note[s] referred to in paragraph 1 above and requests that the Agent exchange such Note[s] for [a new [A] [B] Note dated ______________, 20__ in the principal amount of $_________ payable to the order of the Assignee] [new Notes as follows: [a] [an] [A] [B] Note dated ____________, 20__ in the principal amount of $_____________ payable to the order of the Assignee and [a] [an] [A][B] Note dated ____________, 20__ in the principal amount of $_____________ payable to the order of the Assignor].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, and any Local Currency Addendum to which the Assignor is a
party together with copies of the financial statements referred to in Section
4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Euro-Agent, any Local Currency Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee and, if a Local Currency Commitment is being assigned, that it
is (or its Affiliate, branch or agency which will be the Local Currency Bank is)
an Eligible Local Currency Bank under the applicable Local Currency Addendum;
(iv) appoints and authorizes the Agent, the Euro-Agent, and any Local Currency
Agency under any Local Currency Addendum to which it is or will become a party
as a result of this Assignment, to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement or such Local Currency
Addendum as are delegated to the Agent, the Euro-Agent or such Local Currency
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement, and any
Local Currency Addendum to which it will be a party, are required to be
performed by it as a Bank; [and] (vi) specifies as its Bank Domestic Lending
Office (and address for notices), its Eurocurrency Lending Office, and, if
applicable, its Local Currency Lending Office, the offices set forth beneath its
name on the signature pages hereof [;and (vii) attaches the forms prescribed by
the Internal Revenue Service of the United States of America certifying as to
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and any other forms required to be delivered pursuant to
SECTION 2.17(f)(ii) of the Credit Agreement or any applicable Local Currency
Addendum for purposes of determining exemption from withholding taxes with
respect to payments to be made by any Borrowers under such Local Currency
Addendum.]**
Exhibit C-1-2
4. The effective date for this Assignment and Acceptance shall be __________________ (the "Effective Date").*** Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and any Local Currency Addendum to which Assignor is a party, and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement and any such Local Currency Addendum.
6. Upon such acceptance and recording, from and after the Effective Date, the Agent (and any applicable Local Currency Agent) shall make all payments under the Credit Agreement and any Local Currency Addendum to which the Assignee is or becomes a party in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and any Local Currency Addendum for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
Domestic Lending Office (and address for notices):
[Address]
Eurocurrency Lending Office:
[Address]
Local Currency Lending Office:
[Address]
Exhibit C-1-3
Accepted this ___day
of ____________, 20__
CITICORP USA, INC., as Agent
[ , as Local Currency Agent
under the _______Local Currency
Addendum]
Exhibit C-1-4
EXHIBIT C-2
FORM OF INCREASE AGREEMENT
ECOLAB INC.
INCREASE OF COMMITMENTS AGREEMENT
This Increase of Commitments Agreement (this "AGREEMENT") is dated as of ________, 20__ and entered into by and among Ecolab Inc., a Delaware corporation (the "BORROWER"), the financial institutions which are increasing their Commitments as set forth on SCHEDULE A attached hereto (the "INCREASING BANKS"), the financial institutions which are agreeing to become parties to the Credit Agreement (as defined below) as set forth on SCHEDULE A attached hereto (the "ADDED BANKS") and Citicorp USA, Inc., as agent for the Banks (the "AGENT"), and is made with reference to that certain Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000, by and among the Company, the Banks named therein, Citicorp USA, Inc. as Agent, Citibank International plc, as Euro-Agent and Bank One, NA and Credit Suisse First Boston, as Co-Agents (as amended, restated, supplemented, or otherwise modified from time to time the "CREDIT AGREEMENT"). Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement.
PRELIMINARY STATEMENT
A. The Credit Agreement provides that the Company may request the Commitments under the Credit Agreement to be increased by an amount up to $50,000,000.
B. The Company has submitted a request to increase the Commitments by $_________.
C. The Increasing Banks are willing to increase their Commitments pursuant to the terms of the Credit Agreement.
D. The Added Banks are willing to become parties to the Credit Agreement and to take Commitments thereunder pursuant to the terms of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. INCREASE OF COMMITMENTS
A. Pursuant to SECTION 2.05 of the Credit Agreement, each of the Increasing Banks hereby agrees to increase its Commitment in an amount set forth opposite its name in SCHEDULE A attached hereto.
EXHIBIT C-2-1
B. Pursuant to SECTION 2.05 of the Credit Agreement, each of the Added Banks hereby agrees to become a party to the Credit Agreement as a Bank with a Commitment in an amount set forth opposite its name in SCHEDULE A attached hereto, and to be bound by all the terms and provisions of the Credit Agreement.
SECTION 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce the Increasing Banks and the Added Banks to enter into this Agreement, the Borrower represents and warrants to each Increasing Bank and Added Bank that the following statements are true, correct and complete on and as of the Commitment Increase Date (as hereinafter defined):
A. The execution, delivery and performance by the
Company of this Agreement are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
(i) the Company's restated certificate of incorporation or by-laws or (ii)
any law or contractual restriction binding on or affecting the Company.
B. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Agreement, except any such approvals, notices, actions or filings which have already been made, obtained or given.
C. This Agreement is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and to general principles of equity.
D. The representations and warranties contained in ARTICLE IV of the Credit Agreement are true, correct and complete in all material respects on and as of the Commitment Increase Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date.
SECTION 3. CONDITIONS TO EFFECTIVENESS
The increase in Commitments by the Increasing Banks and the addition of Commitments by the Added Banks referred to in SECTION 1 of this Agreement shall become effective only upon the satisfaction on or prior to ________, 20__ of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the "COMMITMENT INCREASE DATE"):
A. The Agent shall have received executed counterparts of this Agreement, duly executed and delivered on behalf of each of the Company, the Agent, the Increasing Banks and the Added Banks.
EXHIBIT C-2-2
B. The Agent shall have received a Certificate of the Secretary or an Assistant Secretary of the Company dated the Commitment Increase Date as to (i) the resolution of the Board of Directors of the Company authorizing this Agreement, and (ii) the incumbency and signatures of the person authorized to execute and deliver this Agreement.
C. The Agent shall have received an opinion of General
Counsel for the Company with respect to the matters set forth in subsections
2 (A), (B), (C) and (D) above.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(i) On and after the Commitment Increase Date, each reference in the Credit Agreement, the Notes or any Local Currency Addendum to the "Banks", "Commitments", or words of like import shall mean and be a reference to the Banks and Commitments as amended by this Agreement.
(ii) Except as specifically amended by this Agreement, the Credit Agreement shall remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Agreement shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Agent or any Bank under, the Credit Agreement or any Local Currency Addendum.
B. FEES AND EXPENSES. The Company acknowledges that all costs, fees and expenses incurred by the Agent and its counsel with respect to this Agreement and the documents and transactions contemplated hereby shall be for the account of the Company.
C. HEADINGS. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
E. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.
[Remainder of page intentionally left blank]
EXHIBIT C-2-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
ECOLAB INC.
Title:
CITICORP USA, INC., [as an Increasing Bank and] as Agent
Title:
___________________, as an Increasing Bank
Title:
___________________, as an Added Bank
Title:
SCHEDULE A
INCREASING BANKS
BANK COMMITMENT INCREASE NEW COMMITMENT TOTAL ---- ------------------- -------------------- -------- $-------- $-------- -------- $-------- $-------- -------- $-------- $-------- |
ADDED BANKS
BANK NEW COMMITMENT TOTAL ---- -------------------- -------- $-------- -------- $-------- |
EXHIBIT D
FORM OF ELECTION TO PARTICIPATE
[Date]
To: Citicorp USA, Inc., as Agent for the
Banks parties to the Credit
Agreement referred to below,
and Citibank International plc,
as Euro-Agent for such Banks
Reference is made to the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000, among Ecolab Inc., the Banks parties thereto, Citicorp USA, Inc., as administrative agent for the Banks, Citibank International plc, as Euro-Agent for the Banks, and Bank One, NA and Credit Suisse First Boston, as Co-Agents (as the same may be amended from time to time, the "Credit Agreement"). Terms not defined herein which are defined in the Credit Agreement shall have for the purposes hereof the meanings provided therein.
The undersigned, [name of Borrowing Subsidiary], a [jurisdiction of
organization/type of entity], hereby elects to be a Borrowing Subsidiary for
purposes of the Credit Agreement, effective from the date hereof. The
undersigned confirms that the representations and warranties set forth in
SECTION 4.02 of the Credit Agreement are true and correct in all material
respects as to the undersigned as of the date hereof, and the undersigned hereby
agrees to perform all the obligations of a Borrowing Subsidiary under, and to be
bound in all respects by the terms of, the Credit Agreement, including without
limitation SECTION 9.09 thereof, as if the undersigned were a signatory party
thereto.
The address to which all notices to the undersigned 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.
This Election to Participate may be executed in any number of counterparts and by different parties hereto in separate counterparts.
[NAME OF BORROWING SUBSIDIARY]
By: __________________________
Title:
Exhibit D-1
The undersigned hereby confirms that [name of Borrowing Subsidiary] is a Borrowing Subsidiary for purposes of the Credit Agreement described above and that the guaranty of the undersigned contained in Article VIII of the Credit Agreement applies to the obligations of [name of Borrowing Subsidiary] under the Credit Agreement and the Notes issued by it [and, if applicable, the Local Currency Addendum executed by it]. The undersigned hereby represents and warrants that [name of Borrowing Subsidiary] is a Consolidated Subsidiary.
ECOLAB INC.
By: __________________________
Title:
Receipt of the above Election to Participate is hereby acknowledged on and as of the date set forth above.
CITICORP USA, INC., as Agent
By: __________________________
Title:
Exhibit D-2
EXHIBIT E
FORM OF OPINION OF
GENERAL COUNSEL OF THE COMPANY
(Initial Borrowing by the Company)
[Date]
To each of the Banks parties
to the Credit Agreement
referred to below, Citicorp USA,
Inc., as Agent, and Citibank
International Plc, as Euro-
Agent
Re: ECOLAB INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(f) of the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement"), among Ecolab Inc. (the "Company"), the banks parties thereto (the "Banks"), Citicorp USA, Inc., as Agent for the Banks, Citibank International Plc, as Euro-Agent for the Banks, and Bank One, NA and Credit Suisse First Boston, as Co-Agents. Terms defined in the Credit Agreement are used herein as so defined.
As Senior Vice President-Law and General Counsel of the Company, I am familiar with the corporate history and organization of the Company and its Subsidiaries and the proceedings relating to the authorization, preparation, execution and delivery of, and the initial Borrowing by the Company made under, the Credit Agreement.
In that connection, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company pursuant to Article III of the Credit Agreement.
(3) The Restated Certificate of Incorporation of the Company and all amendments thereto (the "Charter").
(4) The By-Laws of the Company and all amendments thereto (the "By-Laws").
Exhibit E-1
(5) A certificate of the Secretary of State of Delaware, dated ____________, 200_, attesting to the continued corporate existence and good standing of the Company in that State.
In addition, I have examined the originals, or copies certified to my satisfaction, of such other corporate records of the Company, certificates of public officials and of officers of the Company, and agreements instruments and other documents as I have deemed necessary as a basis for the opinions with respect to the Company expressed below.
As to questions of fact material to such opinions, I have, when relevant facts were not independently established by me, relied upon certificates of the Company or its officers or of public officials. I have assumed the due execution and delivery, pursuant to due authorization, of the Credit Agreement by the Banks and the Agent and Euro-Agent.
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
(1) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(2) The execution, delivery and performance by the Company of the Credit Agreement and the Company's Notes are within the Company's corporate powers, have been duly authorized by all necessary corporate action, and will not conflict with, contravene, violate or constitute a default under (i) the Charter or the By-Laws, (ii) any law, rule or regulation, (iii) any material contractual restriction binding on or, to the best of my knowledge, affecting the Company or to which any of its property may be subject, (iv) to the best of my knowledge, any judicial or administrative order or decree of any governmental authority, or (v) to the best of my knowledge, any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority. The Credit Agreement and the Company's Notes have been duly executed and delivered on behalf of the Company.
(3) No authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by the Company of the Credit Agreement or the Company's Notes or the transactions contemplated thereby.
(4) The Credit Agreement and the Company's Notes are legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor's rights generally and to general principles of equity.
Exhibit E-2
(5) To the best of my knowledge, there are no pending actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is (in my best judgment) a reasonable possibility of an adverse decision which would affect (i) the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is (in my best judgment) a reasonable possibility that such decision would prevent the Company from repaying its obligations under the Credit Agreement and the Company's Notes in accordance with the terms thereof, or (ii) the legality, validity, binding effect or enforceability of the Credit Agreement or any of the Company's Notes.
(6) To the best of my knowledge, the Company and its Subsidiaries are in compliance in all material respects with all environmental and hazardous waste laws, rules and regulations and neither the Company nor any of its Subsidiaries has been cited by any Federal, state or local governmental agency or other authority responsible for or having jurisdiction over hazardous waste disposal, where the failure to so comply or being so cited would (in my best judgment) affect the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is a reasonable possibility that such noncompliance or being so cited would prevent the Company from repaying its obligations under the Credit Agreement and the Company's Notes in accordance with the terms thereof.
(7) To the best of my knowledge, there are no pending or threatened actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or other governmental agency or authority arising out of or relating to hazardous waste disposal or environmental compliance or asserting a claim for damages based upon the use or other application of any products of the Company or any of its Subsidiaries, in which there is (in my best judgment) a reasonable possibility of an adverse decision which would affect the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is (in my best judgment) a reasonable possibility that such decision would prevent the Company from repaying its obligations under the Credit Agreement and the Company's Notes in accordance with the terms thereof.
The opinion set forth above is subject to the following qualifications:
(a) In rendering this opinion, my examination of matters of law has been limited to the laws of the State of Minnesota, the General Corporation
Exhibit E-3
Law of the State of Delaware and United States federal law. In addition, for purposes of my opinion in paragraphs (3) and (4) above, insofar as the Credit Agreement and the Company's Notes shall be governed by, and construed in accordance with, the laws of the State of New York, I assume that such laws conform with the laws of the State of Minnesota.
(b) For purposes of my opinion in paragraph (2) above, "material contractual restriction" shall mean the restrictions in the contracts filed by the Company as exhibits to its reports and registration statements filed with the Securities and Exchange Commission, and, if not included among such exhibits, restrictions in contracts of the Company dealing with borrowed money.
(c) My opinion in paragraph (4) above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law) and the availability of the remedy of specific performance.
I am aware that [special counsel for the Company] and Sidley & Austin will rely upon the opinion set forth herein in rendering their respective opinions furnished pursuant to Section 3.01(f) and (g) of the Credit Agreement.
Except as set forth in the foregoing paragraph, the opinion contained herein is for the sole benefit of the Agent, the Euro-Agent, the Banks parties to the Credit Agreement and their respective successors and assigns, and may not be relied upon by any other person.
Very truly yours,
Lawrence T. Bell
Exhibit E-4
EXHIBIT F
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE COMPANY
(Initial Borrowing by the Company)
[Date]
To each of the Banks party
to the Credit Agreement referred
to below, Citicorp USA, Inc., as
Agent, Citibank International Plc,
as Euro-Agent, and Bank One, NA
and Credit Suisse First Boston,
as Co-Agents
Re:ECOLAB INC.
Ladies and Gentlemen:
We have acted as special counsel to Ecolab Inc., a Delaware corporation (the "COMPANY"), in connection with the preparation, execution and delivery of that certain U.S. $275,000,000 Multicurrency Credit Agreement, dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "CREDIT Agreement"), among the Company, the financial institutions party thereto (the "BANKS"), Citicorp USA, Inc., as administrative agent (the "Agent"), Citibank International Plc, as Euro-Agent (as defined therein), and Bank One, NA and Credit Suisse First Boston, as Co-Agents (as defined therein). This opinion is being delivered pursuant to Section 3.01(f) of the Credit Agreement. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned thereto in the Credit Agreement.
In rendering the opinions set forth herein, we have examined and relied on originals or copies of the following:
(i) the Credit Agreement;
(ii) the A Notes, each dated the date hereof, executed by the Company;
(iii) a certificate executed by Ken Iverson, Vice President and Secretary of the Company, dated the date hereof, a copy of which is attached hereto as Exhibit A (the "OPINION CERTIFICATE"); and
Exhibit F-1
(iv) such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below.
The documents identified in clauses (i) and (ii) above shall hereinafter be referred to herein as the "LOAN DOCUMENTS." "APPLICABLE LAWS" means those laws, rules and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Loan Documents, without our having made any special investigation as to the applicability of any specific law, rule or regulation.
In our examination we have assumed the genuineness of all signatures including endorsements, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts material to this opinion (and in the case of public officials, legal conclusions as well) which we did not independently establish or verify, we have relied upon statements and representations of each of the Company and its officers and other representatives and of public officials, including the facts and conclusions set forth in the Opinion Certificate.
We express no opinion as to the laws of any jurisdiction other than
(i) the Applicable Laws of the State of New York and (ii) the Applicable Laws of
the United States of America to the extent specifically referred to herein. We
have relied, with your consent, as to matters of the laws of the State of New
York on the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, dated the date
hereof and addressed to us.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. Each of the Loan Documents constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms under the laws of the State of New York.
2. Neither the execution, delivery or performance by the Company of the Loan Documents, nor the compliance by the Company with the terms and provisions thereof, will contravene any provision of any Applicable Law of the State of New York or any Applicable Law of the United States of America.
Our opinions are subject to the following assumptions and qualifications:
(a) enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) we express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of any party (other than the Company to the
Exhibit F-2
extent expressly set forth herein) to the Loan Documents with any state, federal or other laws or regulations applicable to any of them or (ii) the legal or regulatory status or the nature of the business of the Agent, the Euro-Agent, any Co-Agent, any Bank, the Local Currency Agent or any of the Local Currency Banks;
(c) we express no opinion as to the enforceability of any rights to contribution or indemnification provided for in the Loan Documents that are violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation);
(d) we express no opinion with respect to the enforceability of the last sentence of Section 9.09(a) of the Credit Agreement to the extent that it provides that a final judgment against any Borrowing Subsidiary obtained in an action or proceeding in the United States may be enforced in other jurisdictions by suit on the judgment;
(e) we have assumed that each of the Loan Documents constitutes the valid and binding obligation of each party thereto (other than the Company), enforceable against each such other party thereto in accordance with its terms;
(f) we express no opinion as to the applicability or effect of any fraudulent transfer or similar laws on the Loan Documents or any transactions contemplated thereby;
(g) our opinions stated herein are subject to possible judicial action giving effect to governmental actions by foreign governments or foreign laws affecting creditors' rights;
(h) we call to your attention that (i) effective enforcement of a claim denominated in a foreign currency may be limited by requirements that the claim (or a judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a specified date and (ii) we express no opinion as to whether a federal or a New York state court would award a judgment in a currency other than United States dollars;
(i) we express no opinion herein with respect to either of the Australian Local Currency Addenda; and
(j) we express no opinion with respect to any provision of any Loan Document to the extent it authorizes or permits any purchaser of a participation interest to set-off or apply any deposit, property or indebtedness with respect to any participation interest.
In rendering the foregoing opinions, we have also assumed, with your consent, that:
(a) the Company is duly organized, validly existing and in good standing as a corporation under the laws of the State of Delaware;
Exhibit F-3
(b) the Company has the requisite power and authority to execute, deliver and perform all of its obligations under each of the Loan Documents and the execution and delivery by the Company of each of the Loan Documents and the consummation by the Company of the transactions contemplated thereby have been duly authorized by all requisite action on the part of the Company; each of the Loan Documents has been duly authorized, executed and delivered by the Company;
(c) the execution and delivery by the Company of the Loan
Documents, and the performance of each of its obligations thereunder, do not and
will not conflict with, contravene, violate or constitute a default under (i)
the Certificate of Incorporation or By-Laws of the Company, (ii) any rule, law
or regulation to which the Company is subject (other than Applicable Laws of the
State of New York and Applicable Laws of the United States of America as to
which we express our opinion in paragraph 2 herein), (iii) any lease, indenture,
instrument or other agreement to which the Company or its property is subject or
(iv) any judicial or administrative order or decree of any governmental
authority; and
(d) no authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by the Company of the Loan Documents or the transactions contemplated thereby.
We understand that you are separately receiving an opinion with respect to certain of the foregoing assumptions from Lawrence T. Bell, Senior Vice President-Law and General Counsel of the Company (the "CORPORATE COUNSEL OPINION"). Our opinions herein stated are based on the assumptions specified above, and we express no opinion as to the effect on the opinions herein stated of the qualifications contained in the Corporate Counsel Opinion.
This opinion is being furnished only to you in connection with the Loan Documents and is solely for your benefit and for the benefit of any Person that shall become a Bank under the Credit Agreement after the date hereof and is not to be used, circulated, quoted or otherwise referred to for any other purpose or relied upon by any other Person for any purpose without our prior written consent.
Very truly yours,
Exhibit F-4
EXHIBIT G
FORM OF OPINION OF
SPECIAL COUNSEL FOR A BORROWING SUBSIDIARY
[Date]
To each of the Banks parties to
the Credit Agreement referred to
below, Citicorp USA, Inc., as Agent,
[and] Citibank International Plc,
as Euro-Agent [and ______________,
as Local Currency Agent]*
Re: ECOLAB INC.
Ladies and Gentlemen:
We have acted as special counsel for [name of Borrowing Subsidiary], a
[jurisdiction of organization/type of entity] (the "Borrower"), in connection
with the Multicurrency Credit Agreement dated as of September 29, 1993, as
amended and restated as of December 13, 2000 (the "Credit Agreement"), among
Ecolab Inc., the Banks listed on the signature pages thereof, Citibank USA,
Inc., as Agent for the Banks, Citibank International Plc, as Euro-Agent for the
Banks, and Bank One, NA and Credit Suisse First Boston, as Co-Agents [, and the
________________ Local Currency Addendum dated as of ______________, ____ among
the Borrower, the Company, the Agent, the Local Currency Agent named therein and
the Local Currency Banks party thereto (the "Addendum")].* This opinion is
furnished to you pursuant to Section 3.01(f) of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as so defined.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, records of the Borrower, certificates of public officials, of officers of the Borrower and of the Company 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. We have assumed for purposes of this opinion that the Borrower is a Consolidated Subsidiary and that the contents of the certificates received from officers of the Borrower and of the Company are true, accurate and complete.
Upon the basis of the foregoing we are of the opinion that:
1. The Borrower is a [type of entity] duly organized, validly existing and in good standing under the laws of [jurisdiction of organization], and is a Wholly-Owned Consolidated Subsidiary.
Exhibit G-1
2. The execution and delivery by the Borrower of its Election to Participate[, the Addendum]* and its Notes and the performance by the Borrower of the Credit Agreement[, the Addendum]* and its Notes are within the Borrower's powers, have been duly authorized by all necessary action, and do not contravene any provision of applicable law or regulation or of the [describe constituent documents] of the Borrower or, to the best of our knowledge after due inquiry, of any material contractual restriction binding on or affecting the Borrower or to which any of its property may be subject. The Election to Participate[, the Addendum]* and the Borrower's Notes have been duly executed and delivered by the Borrower.
3. No authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body of [country or jurisdiction of organization] or any political subdivision thereof is required to authorize or is required in connection with the execution and delivery by the Borrower of its Election to Participate[, the Addendum]* or its Notes, or performance by the Borrower of the Credit Agreement[, the Addendum]* or its Notes or the transactions contemplated thereby.
This Opinion is qualified as follows:
a. Having no knowledge of or access to independent information on the financial position of the Borrower, we construe "validly existing and in good standing" as the legal existence as a legal entity and the absence of public notification of any financial circumstances leading to composition for the benefit of creditors or bankruptcy proceedings with respect to the Borrower.
b. We construe "material contractual restriction" only in the context of application of [country or jurisdiction of organization] law.
We are qualified to practice law in the [jurisdiction of organization] and do not purport to express any opinion herein concerning any law other than the law of [jurisdiction of organization].
Exhibit G-2
This opinion is furnished by us, as special counsel for the Borrower, to the Agent, the Euro-Agent[, the Local Currency Agent under the Addendum]* and the several Banks listed on the signature pages of the Credit Agreement solely for the benefit of the Agent, the Euro-Agent[, such Local Currency Agent]* and such Banks and their respective successors and assigns and may not be relied upon by any other person other than Ecolab Inc.'s General Counsel, [special counsel for the Company], Ecolab Inc.'s outside counsel, and Sidley & Austin, special counsel for the Agent and the Euro-Agent, each in connection with their opinions furnished pursuant to Section 3.01(f) and (g) of the Credit Agreement.
Very truly yours,
Exhibit G-3
EXHIBIT H
FORM OF OPINION OF
GENERAL COUNSEL OF THE COMPANY
(Initial Borrowing by a Borrowing Subsidiary)
[Date]
To each of the Banks parties
to the Credit Agreement
referred to below, Citicorp USA,
Inc., as Agent, and Citibank
International Plc, as Euro-
Agent
Re: ECOLAB INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(f) of the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement"), among Ecolab Inc. (the "Company"), the banks parties thereto (the "Banks"), Citicorp USA, Inc., as Agent for the Banks, Citibank International Plc, as Euro-Agent for the Banks, and Bank One, NA and Credit Suisse First Boston, as Co-Agents[, and the _______________ Local Currency Addendum dated as of ___________, ___________ among [name of Borrowing Subsidiary] (the "Borrower), the Company, the Agent the Local Currency Agent named therein and the Local Currency Banks party thereto (the "Addendum")].* Terms defined in the Credit Agreement are used herein as so defined.
As Senior Vice President-Law and General Counsel of the Company, I am familiar with the corporate history and organization of the Company and its Subsidiaries and the proceedings relating to the authorization, preparation, execution and delivery of the Credit Agreement by the Company and the initial Borrowing thereunder by [name of Borrowing Subsidiary (the "Borrower")].
In that connection, I have examined:
(1) The Credit Agreement [and the Addendum].*
(2) The documents furnished by the Company pursuant to Article III of the Credit Agreement.
(3) The Borrower's Election to Participate.
Exhibit H-1
(4) The Restated Certificate of Incorporation of the Company and all amendments thereto (the "Charter").
(5) The By-Laws of the Company and all amendments thereto ( the "By-Laws").
(6) A certificate of the Secretary of State of Delaware, dated ____________, 2000, attesting to the continued corporate existence and good standing of the Company in that State.
In addition, I have examined the originals, or copies certified to my satisfaction, of such other corporate records of the Company, certificates of public officials and of officers of the Company, and agreements instruments and other documents as I have deemed necessary as a basis for the opinions with respect to the Company expressed below.
As to questions of fact material to such opinions, I have, when
relevant facts were not independently established by me, relied upon
certificates of the Company or its officers or of public officials. I have
assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement [and the Addendum]* by the Banks and the Agent, the Euro-Agent
[and the Local Currency Agent].*
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
(1) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(2) The execution, delivery and performance by the Company of the Credit Agreement[, the Addendum]* and the Borrower's Election to Participate are within the Company's corporate powers, have been duly authorized by all necessary corporate action, and will not conflict with, contravene, violate or constitute a default under, and, to the best of my knowledge, the execution, delivery and performance by the Borrower of [the Addendum,]* its Election to Participate and its Notes will not conflict with, contravene, violate or constitute a default under, (i) the Charter or the By-Laws, (ii) any law, rule or regulation, (iii) any material contractual restriction binding on or, to the best of my knowledge, affecting the Company or to which any of its property may be subject, (iv) to the best of my knowledge, any judicial or administrative order or decree of any governmental authority, or (v) to the best of my knowledge, any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority. The Credit Agreement[, the Addendum]* and the Borrower's Election to Participate have been duly executed and delivered on behalf of the Company.
Exhibit H-2
(3) No authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by the Company of the Credit Agreement[, the Addendum]* or the Borrower's Election to Participate or the transactions contemplated thereby.
(4) [Each of]* the Credit Agreement [and the Addendum]* is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor's rights generally and to general principles of equity.
(5) To the best of my knowledge, there are no pending actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is (in my best judgment) a reasonable possibility of an adverse decision which would affect (i) the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is (in my best judgment) a reasonable possibility that such decision would prevent the Company from repaying its obligations under the Credit Agreement [and the Addendum]* in accordance with the terms thereof, or (ii) the legality, validity, binding effect or enforceability of the Credit Agreement [and the Addendum].*
(6) To the best of my knowledge, the Company and its Subsidiaries are in compliance in all material respects with all environmental and hazardous waste laws, rules and regulations and neither the Company nor any of its Subsidiaries has been cited by any Federal, state or local governmental agency or other authority responsible for or having jurisdiction over hazardous waste disposal, where the failure to so comply or being so cited would (in my best judgment) affect the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is a reasonable possibility that such noncompliance or being so cited would prevent the Company from repaying its obligations under the Credit Agreement [and the Addendum]* in accordance with the terms thereof.
(7) To the best of my knowledge, there are no pending or threatened actions, suits or proceedings against the Company or any of its Subsidiaries before any court or arbitrator or other governmental agency or authority arising out of or relating to hazardous waste disposal or environmental compliance or asserting a claim for damages based upon the use or other application of any products of the Company or any of its Subsidiaries, in
Exhibit H-3
which there is (in my best judgment) a reasonable possibility of an adverse decision which would affect the business, consolidated financial position or consolidated results of operations of the Company and its Consolidated Subsidiaries to the extent that there is (in my best judgment) a reasonable possibility that such decision would prevent the Company from repaying its obligations under the Credit Agreement in accordance with the terms thereof.
The opinion set forth above is subject to the following qualifications:
(a) In rendering this opinion, my examination of matters of law has been limited to the laws of the State of Minnesota, the General Corporation Law of the State of Delaware and United States federal law. In addition, for purposes of my opinion in paragraphs (3) and (4) above, insofar as the Credit Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, I assume that such laws conform with the laws of the State of Minnesota.
(b) For purposes of my opinion in paragraph (2) above, "material contractual restriction" shall mean the restrictions in the contracts filed by the Company as exhibits to its reports and registration statements filed with the Securities and Exchange Commission, and, if not included among such exhibits, restrictions in contracts of the Company dealing with borrowed money.
(c) My opinion in paragraph (4) above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law) and the availability of the remedy of specific performance.
I am aware that [special counsel for the Company] and Sidley & Austin will rely upon the opinion set forth herein in rendering their respective opinions furnished pursuant to Section 3.01(f) and (g) of the Credit Agreement.
Except as set forth in the foregoing paragraph, the opinion contained herein is for the sole benefit of the Agent, the Euro-Agent, [the Local Currency Agent,]* the Banks parties to the Credit Agreement and their respective successors and assigns, and may not be relied upon by any other person.
Very truly yours,
Lawrence T. Bell
Exhibit H-4
EXHIBIT I
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE COMPANY
(Initial Borrowing by a Borrowing Subsidiary)
[Date]
To each of the Banks party
to the Credit Agreement referred to
below, Citicorp USA, Inc., as Agent, and
Citibank International Plc, as Euro-Agent
Re: ECOLAB INC.
Ladies and Gentlemen:
We have acted as special counsel to Ecolab Inc., a Delaware corporation (the "Company"), in connection with the execution and delivery of that certain Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000 (the "Credit Agreement") among the Company, the financial institutions party thereto (the "Banks"), Citicorp USA, Inc., as Agent, Citibank International Plc, as Euro-Agent, and Bank One, NA and Credit Suisse First Boston, as Co-Agents[, and the ___________________ Local Currency Addendum dated as of ____________, ____ among the Borrower, the Company, the Agent, the Local Currency Agent named thereunder and the Local Currency Banks party thereto (the "Addendum")].* This opinion is being delivered pursuant to Section 3.02(f) of the Credit Agreement. Capitalized terms used herein and not otherwise defined herein shall have the same meanings herein as ascribed thereto in the Credit Agreement.
In our examination we have assumed the genuineness of all signatures including endorsements, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts material to this opinion which we did not independently establish or verify, we have relied upon statements and representations of the Company and its officers and other representatives and of public officials, including the facts set forth in the Company's Certificate described below.
In rendering the opinions set forth herein, we have examined and relied on originals or copies of the following:
Exhibit I - 1
(i) the Credit Agreement [and the Addendum];*
(ii) the Notes, each dated the date hereof, executed by
[Borrowing Subsidiary];
(iii) the Election to Participate dated as of the date hereof executed by the Company and [Borrowing Subsidiary] and delivered to the Agent;
(iv) the certificate of the Company as to factual matters executed by ____________, the ________ of the Company, dated the date hereof, a copy of which is attached hereto as Exhibit A (the "Company's Certificate"); and
(v) such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below.
The documents identified in clauses (i) through (iii) above shall hereinafter be referred to herein as the "Loan Documents."
Members of our firm are admitted to the bar of the States of
New York. We express no opinion as to the laws of any jurisdiction other than
(i) the laws of the State of New York, and (ii) the federal laws of the United
States of America to the extent specifically referred to herein.
The opinions set forth below are subject to the following qualifications:
(a) enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) we express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of the Agent, the Euro-Agent, [the Local Currency Agent,]* the Co-Agents or any of the Banks with any state, federal or other laws or regulations applicable to it or (b) the legal or regulatory status or the nature of the business of the Agent, the Euro-Agent, [the Local Currency Agent,]* the Co-Agents or the Banks;
(c) we express no opinion as to the enforceability of any rights to contribution or indemnification provided for in the Loan Documents which are violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation);
(d) our opinion is subject to possible judicial action giving effect to governmental actions or foreign laws affecting creditors' rights;
(e) we express no opinion with respect to the enforceability of the last sentence of Section 9.09(a) of the Credit Agreement to the extent that it provides that a final
Exhibit I - 2
judgment against any Borrowing Subsidiary obtained in an action or proceeding in the United Sates may be enforced in other jurisdictions by suit on the judgment; and
(f) we have assumed that each of the Loan Documents is the legal, valid and binding obligation of each party thereto other than the Company and [Borrowing Subsidiary], enforceable against each such party thereto in accordance with its terms.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. Each of the Loan Documents to which the Company is a party constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
2. Each of the Loan Documents to which [Borrowing
Subsidiary]is a party constitutes the valid and binding obligation of
[Borrowing Subsidiary], enforceable against [Borrowing Subsidiary] in
accordance with its terms.
3. Neither the execution, delivery or performance by the Company or [Borrowing Subsidiary] of the Loan Documents to which it is a party nor the compliance by the Company or [Borrowing Subsidiary] with the terms and provisions thereof will contravene any provision of any Applicable Law. For purposes of this paragraph 3, "Applicable Law" shall mean those laws, rules and regulations of the State of New York and the United States of America which, in our experience, are normally applicable to transactions of the type contemplated by the Loan Documents.
In rendering the foregoing opinions, we have assumed with your consent, that:
(i) the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(ii) the Company has the corporate power and corporate authority to execute, deliver and perform all of its obligations under each of the Loan Documents to which it is a party. The execution, delivery and performance by the Company of each of the Loan Documents to which it is a party have been duly authorized by all requisite corporate action on the part of the Company. Each of the Loan Documents to which the Company is a party has been duly executed and delivered by the Company.
(iii) the execution and delivery by the Company and
[Borrowing Subsidiary] of, and the performance of the obligations of the
Company and [Borrowing Subsidiary] under, the Loan Documents does not and
will not conflict with, contravene, violate or constitute a default under (a)
any indenture, mortgage, deed of trust or other instrument or agreement to
which the Company is a party or by which the Company may be or become bound
or to which any of the property or assets of the Company may be subject, (b)
any rule, law or regulation to which the Company is subject (provided that we
make no such assumption with respect to Applicable Laws as to which we opine
in paragraph 3 above), (c) the Certificate of Incorporation or By-Laws of
Exhibit I - 3
the Company, (d) any judicial or administrative order or decree of any governmental authority or (e) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority; and
(iv) no authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by the Company of any Loan Document to which it is a party or the transactions contemplated thereby.
We understand that you are separately receiving an opinion with respect to certain of the foregoing from Lawrence T. Bell, Senior Vice President-Law and General Counsel of the Company (the "Corporate Counsel Opinion"). Our opinions herein stated are based on the assumptions specified above, and we express no opinion as to the effect on the opinions herein stated of the qualifications contained in the Corporate Counsel Opinion.
In rendering the foregoing opinions, we have also assumed with your consent, that:
(i) [Borrowing Subsidiary] is duly organized, validly existing and in good standing under the laws of [jurisdiction of organization];
(ii) [Borrowing Subsidiary] has the power and authority to execute, deliver and perform all of its obligations under each of the Loan Documents to which it is a party;
(iii) the execution, delivery and performance by
[Borrowing Subsidiary] of each of the Loan Documents to which it is a party
have been duly authorized by all requisite action on the part of
[Borrowing Subsidiary];
(iv) each of the Loan Documents to which [Borrowing
Subsidiary] is a party has been duly executed and delivered by
[Borrowing Subsidiary];
(v) the execution and delivery by [Borrowing Subsidiary]
of each of the Loan Documents to which it is a party and the performance by
[Borrowing Subsidiary] of its obligations thereunder, each in accordance with
its terms, do not conflict with the constating documents of
[Borrowing Subsidiary];
(vi) the execution, delivery and performance of any of
[Borrowing Subsidiary]'s obligations under the Loan Documents does not and will
not conflict with, contravene, violate or constitute a default under (a) any
indenture, mortgage, deed of trust or other instrument or agreement to which
[Borrowing Subsidiary] is a party or by which [Borrowing Subsidiary] may be or
become bound or to which any of the property or assets of [Borrowing Subsidiary]
may be subject or (b) any rule, law or regulation (provided that we make no such
assumption with respect to Applicable Laws as to which we opine in paragraph 3
above); and
Exhibit I - 4
(vii) no authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by [Borrowing Subsidiary] of any Loan Document to which it is a party or the transactions contemplated thereby.
We understand that you are separately receiving an opinion with respect to certain of the foregoing from ___________________, special ________ counsel for [Borrowing Subsidiary] (the "(_______ Counsel Opinion"). Our opinions herein stated are based on the assumptions specified above, and we express no opinion as to the effect on the opinions herein stated of the qualifications contained in the _______ Counsel Opinion.
This opinion is being furnished only to you in connection with the execution and delivery of the Loan Documents and is solely for your benefit and for the benefit of any Person that shall become a Bank under the Credit Agreement after the date hereof and is not to be used, circulated, quoted, relied upon or otherwise referred to by any other Person or for any other purpose without our prior written consent.
Very truly yours,
Exhibit I - 5
EXHIBIT J
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE AGENT
AND THE EURO-AGENT
[Date]
To each of the Banks parties to
the Credit Agreement referred to
below, Citicorp USA, Inc., as Agent,
and Citibank International Plc,
as Euro-Agent
Re: ECOLAB INC.
Ladies and Gentlemen:
We have acted as special counsel for Citicorp USA, Inc., as agent (the "Agent"), and Citibank International Plc, as agent (the "Euro-Agent"), in connection with the execution and delivery of the Multicurrency Credit Agreement dated as of September 29, 1993, as amended and restated as of January 1, 1995, as further amended and restated as of October 17, 1997, and as further amended and restated as of December 13, 2000 (the "Credit Agreement"), among Ecolab Inc. (the "Company"), the Banks listed on the signature pages thereof, Citicorp USA, Inc., as Agent for the Banks, Citibank International Plc, as Euro-Agent for the Banks, and Bank One, NA and Credit Suisse First Boston, as Co-Agents[, and the _______________ Local Currency Addendum dated as of ____________, ____ among [name of Borrowing Subsidiary] (the "Borrower"), the Company, the Agent, the Local Currency Agent named therein and the Local Currency Banks party thereto (the "Addendum")]***. This opinion is furnished to you pursuant to Section 3.01(g) of the Credit Agreement. Terms defined in the Credit Agreement are used herein as so defined.
In connection herewith we have examined the following documents: (1) the Credit Agreement [, the Addendum]***[and the Election to Participate of [name of Borrowing Subsidiary] (the "Borrower")],* and (2) the documents furnished by the Company [and the Borrower]* pursuant to Section 3.01 of the Credit Agreement and listed on Schedule I hereto, including, without limitation, the opinion of Lawrence T. Bell, Senior Vice President-Law and General Counsel of the Company[, and the opinion of ____________, special counsel for the Borrower]*.
In our examination of the documents referred to above, we have assumed (i) the authenticity of all such documents submitted to us as originals, the conformity to authentic originals of all such documents submitted to us as copies, the genuineness of all signatures and the due authority of the parties executing such documents; (ii) that each of the Banks, the Agent,
Exhibit J - 1
the Euro-Agent and the Co-Agents has duly executed and delivered the Credit
Agreement with all necessary power and authority (corporate and otherwise);
(iii) that the Company has duly executed and delivered the Credit Agreement
[,the Addendum]*** and [its Notes]** [the Borrower's Election to Participate,
and the Borrower has duly executed and delivered its Election to Participate
[, the Addendum]*** and its Notes, in each case]* with all necessary power and
authority (corporate and otherwise); and (iv) that the Credit Agreement is the
legal, valid and binding obligation of each party thereto other than the
Company, enforceable against each such party thereto in accordance with its
terms. To the extent that our opinion expressed below involves conclusions as
to the matters set forth in paragraphs 1, 2 and 3 of the above-mentioned
opinion of Lawrence T. Bell [and in the above-mentioned opinion
of _______________,]* we have assumed without independent investigation the
correctness of the opinions set forth therein, our opinion being subject to
the assumptions, qualifications and limitations set forth in such opinion[s]
with respect thereto.
Based upon the foregoing and upon such other investigation as
we have deemed necessary, we are of the opinion that (i) the Credit Agreement
[and the Company's Notes]** [is a] [are] legal, valid and binding obligation[s]
of the Company, enforceable against the Company in accordance with [its] [their
respective] terms, [and the [Addendum, the]*** Borrower's Election to
Participate and its Notes are legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms,]* and (ii) the documents listed on Schedule I are substantially
responsive to the requirements of Section 3.01 of the Credit Agreement.
Our opinion above is subject to the following qualifications and limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to the effect of general equitable principles, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (whether considered in a proceeding in equity or at law) and the availability of the remedy of specific performance.
(b) We express no opinion as to the effect on the opinion expressed herein of (i) the compliance or noncompliance by the Agent, the Euro-Agent, [the Local Currency Agent,]*** the Co-Agents or any of the Banks with any state, federal or other laws or regulations applicable to it or (b) the legal or regulatory status or the nature of the business of the Agent, the Euro-Agent, [the Local Currency Agent,]*** the Co-Agents or the Banks.
(c) We express no opinion as to the enforceability of any rights to contribution or indemnification provided for in the Credit Agreement [or the Addendum]*** which are violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
(d) Our opinion is limited to the laws of the State of New York, and we do not express any opinion herein concerning any other law.
Exhibit J - 2
(e) This opinion speaks as of the date hereof, and we assume no obligation to supplement the foregoing opinion if any applicable laws change after the date hereof or if we become aware of any facts which might change such opinion after the date hereof.
[(f) Our opinion is subject to possible judicial action giving effect to governmental actions or foreign laws affecting creditors' rights.
(g) We express no opinion with respect to the enforceability of the last sentence of Section 9.09(a) of the Credit Agreement to the extent that it provides that a final judgment against any Borrowing Subsidiary obtained in an action or proceeding in the United States may be enforced in other jurisdictions by suit on the judgment.]*
This opinion is furnished by us, as special counsel for the Agent and the Euro-Agent, to the Agent, the Euro-Agent and the several Banks listed on the signature pages of the Credit Agreement solely for the benefit of the Agent, the Euro-Agent and such Banks and their respective successors and assigns and may not be used, quoted or relied upon by any other person.
Very truly yours,
** To be used in connection with the initial Borrowing by the Company.
*** To be used if the Initial Borrowing by a Borrowing Subsidiary is pursuant to a Local Currency Addendum.
Exhibit J - 3
SCHEDULE I
Documents Furnished
Pursuant to Section 3.01
OF THE CREDIT AGREEMENT
Schedule I - 1
EXHIBIT K
to
FORM OF
LOCAL CURRENCY ADDENDUM
[NAME OF SUBSIDIARY BORROWER]
LOCAL CURRENCY ADDENDUM
[SPECIFY CURRENCY] ADDENDUM dated as of [ ], to the Credit Agreement (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Addendum, the following terms shall have the meanings specified below:
"BASE RATE" means [identify any base rate customarily used in connection with floating rate loans in the applicable currency].
"BORROWING SUBSIDIARY" means [insert name of Borrowing Subsidiary].
"[Insert Definition of Rate Used for Fixed Rate Loans, if any, other than Eurocurrency Loans] shall mean [___________________________________].
"[Insert applicable definitions for reserve adjustments to Fixed Rate Loans] shall mean [____________________].
"CREDIT AGREEMENT" means the Credit Agreement dated as of September 29, 1993, as amended and restated as of December 13, 2000, among Ecolab Inc., the Borrowing Subsidiaries from time to time party thereto, the financial institutions from time to time party thereto as Banks, Citicorp USA, Inc., as Administrative Agent, Citibank International PLC, as Euro-Agent and Bank One, NA and Credit Suisse First Boston, as Co-Agents, and as the same may be amended, waived, modified or restated from time to time.
"ELIGIBLE LOCAL CURRENCY BANK" means any Local Currency Bank meeting the eligibility criteria set forth in SCHEDULE III.
Exhibit K - 1
"LOCAL CURRENCY ADVANCE" means any Advance, denominated in
[specify currency], made to [the Borrowing Subsidiary or the Company], a
[corporation organized under the laws of _____________], pursuant to SECTIONS
2.2A AND 2.2B of the Credit Agreement and this Addendum. A Local Currency
Advance shall bear interest at one of the rates specified in SCHEDULE II.
"LOCAL CURRENCY BANK" means each Bank listed on the signature pages of this Addendum or which becomes a party hereto pursuant to an Assignment and Acceptance.
SECTION 1.02. TERMS GENERALLY. Unless otherwise defined herein, terms defined in the Credit Agreement shall have the same meanings in this Addendum. Wherever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". All references herein to Sections and Schedules shall be deemed references to Sections of and Schedules to this Addendum unless the context shall otherwise require.
ARTICLE II
THE CREDITS
SECTION 2.01. LOCAL CURRENCY ADVANCES. (a) This Addendum (as the same may be amended, waived, modified or restated from time to time) is a "Local Currency Addendum" as defined in the Credit Agreement and is, together with the borrowings made hereunder, subject in all respects to the terms and provisions of the Credit Agreement except to the extent that the terms and provisions of the Credit Agreement are modified by or are inconsistent with this Addendum, in which case this Addendum shall control. The Local Currency Banks party to this Addendum are set forth on SCHEDULE I.
(b) Any modifications to the interest payment dates, Interest Periods, interest rates and any other special provisions applicable to Local Currency Advances under this Addendum are set forth on SCHEDULE II. If SCHEDULE II states "None" with respect to any item listed thereon, then the corresponding provisions of the Credit Agreement, without modification, shall govern this Addendum and the Local Currency Advances made pursuant to this Addendum.
(c) Any special borrowing procedures or funding arrangements for Local Currency Advances under this Addendum, any provisions for the issuance of promissory notes to evidence the Local Currency Advances made hereunder and any additional information requirements applicable to Local Currency Advances under this Addendum are set forth on SCHEDULE III. If no such special procedures, funding arrangements, provisions or additional requirements are set forth on SCHEDULE III, then the corresponding procedures, funding arrangements, provisions and information requirements set forth in the Credit Agreement shall govern this Addendum.
Exhibit K - 2
SECTION 2.02. MAXIMUM BORROWING AMOUNTS. (a) The Local Currency Commitment for each Local Currency Bank party to this Addendum is set forth on SCHEDULE I. The Local Currency Facility Aggregate Commitment is set forth on SCHEDULE I.
(b) Upon at least ten (10) Business Days prior irrevocable written notice to the Agent, the Company may from time to time permanently reduce the Local Currency Commitments under this Addendum in whole, or in part ratably among the Local Currency Banks, in an aggregate minimum and integral amounts of [$1,000,000]; PROVIDED, HOWEVER, that the amount of the Local Currency Commitments may not be reduced below the aggregate principal amount of the outstanding Local Currency Advances with respect thereto. Any reduction in the Local Currency Commitments shall be an automatic reduction of the Local Currency Facility Aggregate Commitment. Any such reduction shall be allocated pro rata among all the Local Currency Banks party to this Addendum by reference to their Local Currency Commitments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower party hereto makes and confirms each representation and warranty applicable to each Borrower or any of its Subsidiaries contained in ARTICLE IV of the Credit Agreement. Each Borrower party hereto represents and warrants to each of the Local Currency Banks party to this Addendum that no Default or Events of Default has occurred and is continuing, and no Default or Events of Default shall arise as a result of the making of Local Currency Advances hereunder or any other transaction contemplated hereby.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. AMENDMENT; TERMINATION. (a) This Addendum (including the Schedules hereto) may not be amended without the prior written consent of the Local Currency Agent and the Majority Local Currency Banks hereunder, but subject to the provisions of SECTION 9.01 of the Credit Agreement; PROVIDED, HOWEVER, that this SECTION 4.01(a) shall not restrict assignments pursuant to SECTION 4.02.
(b) This Addendum may not be terminated without the prior written consent of each Local Currency Bank party hereto and each Borrower party hereto unless there are no Local Currency Advances outstanding hereunder, in which case no such consent of any Local Currency Bank shall be required; PROVIDED, HOWEVER, that this Addendum shall terminate on the date that the Credit Agreement terminates in accordance with its terms.
Exhibit K - 3
SECTION 4.02. ASSIGNMENTS. SECTION 9.08 of the Credit Agreement shall apply to assignments by Local Currency Banks of obligations, Commitments and Advances hereunder; PROVIDED, HOWEVER, that an Local Currency Bank may not assign any obligations, Commitments or rights hereunder to any Person who is not (and does not simultaneously become) a Bank under the Credit Agreement.
SECTION 4.03. NOTICES. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrowing Subsidiary under this Addendum, at
[ ], Attention [ ] (Telecopy No. [ ]) with a copy to
the Company at its address and telecopy number referenced in
SECTION 9.02 of the Credit Agreement;
(b) if to the Company, at its address and telecopy number referenced in SECTION 9.02 of the Credit Agreement;
(c) if to the Local Currency Agent, at [ ],
Attention: [ ] (Telecopy No.: [ ]) with a copy to
the Agent at its address and telecopy number referenced in
SECTION 9.02 of the Credit Agreement; and
(d) if to a Local Currency Bank, at its address and telecopy number set forth in SCHEDULE I or in the Assignment and Acceptance pursuant to which such Local Currency Bank became a party hereto.
All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by telecopy to such party as provided in this Section or in accordance with the latest unrevoked direction from such party given in accordance with this Section.
SECTION 4.04. RATIFICATION OF GUARANTY. By its execution of this Addendum, the Company ratifies and confirms its guaranty contained in ARTICLE VIII of the Credit Agreement with respect to the Local Currency Advances made pursuant to this Addendum which Guaranty remains in full force and effect
SECTION 4.05. SHARING OF PAYMENTS, ETC. If any Local Currency Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Local Currency Advances made by it (other than pursuant to SECTION 2.08, 2.12 or 2.17 of the Credit Agreement) in excess of its ratable share of payments on account of the Local Currency Advances obtained by all the Local Currency Banks, such Local Currency Bank shall forthwith purchase from the other Local Currency Banks such participations in the Local Currency Advances made by them as shall be necessary to cause such purchasing Local Currency Bank to share the excess payment ratably with each of them, PROVIDED, HOWEVER, that if all or any portion of such excess payment is thereafter recovered from such purchasing Local Currency Bank, such purchase from each Local Currency Bank shall be rescinded and
Exhibit K - 4
such Local Currency Bank shall repay to the purchasing Local Currency Bank the purchase price to the extent of such recovery together with an amount equal to such Local Currency Bank's ratable share (according to the proportion of (i) the amount of such Local Currency Bank's required repayment to (ii) the total amount so recovered from the purchasing Local Currency Bank) of any interest or other amount paid or payable by the purchasing Local Currency Bank in respect of the total amount so recovered. Each Borrower agrees that any Local Currency Bank so purchasing a participation from another Local Currency Bank pursuant to this SECTION 4.05 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Local Currency Bank were the direct creditor of such Borrower in the amount of such participation.
SECTION 4.06. APPLICABLE LAW. THIS ADDENDUM SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.07. ELIGIBLE LOCAL CURRENCY BANKS. Each Local Currency Bank confirms that on the date of this Addendum it is an Eligible Local Currency Bank, and agrees that it will promptly notify the Local Currency Agent, the Agent and the Company if at any time in the future it determines that it has ceased to be an Eligible Local Currency Bank.
ARTICLE V
THE LOCAL CURRENCY AGENT
SECTION 5.01 APPOINTMENT; NATURE OF RELATIONSHIP. [Name of Local
Currency Agent] is appointed by the Local Currency Banks as the Local Currency
Agent hereunder, and each of the Local Currency Banks irrevocably authorizes the
Local Currency Agent to act as the contractual representative of such Local
Currency Bank with the rights and duties expressly set forth herein and in the
Credit Agreement applicable to the Local Currency Agent. The Local Currency
Agent agrees to act as such contractual representative upon the express
conditions contained in this ARTICLE V. Notwithstanding the use of the defined
term "Local Currency Agent," it is expressly understood and agreed that the
Local Currency Agent shall not have any fiduciary responsibilities to any Local
Currency Bank or other Bank by reason of this Addendum and that the Local
Currency Agent is merely acting as the representative of the Local Currency
Banks with only those duties as are expressly set forth in this Addendum and the
Credit Agreement. In its capacity as the Local Currency Banks' contractual
representative, the Local Currency Agent (i) does not assume any fiduciary
duties to any of the Banks, (ii) is a "representative" of the Local Currency
Banks within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Addendum and the Credit Agreement.
Each of the Banks agrees to assert no claim against the Local Currency Agent on
any agency theory or any other theory of liability for breach of fiduciary duty,
all of which claims each Bank waives.
Exhibit K - 5
SECTION 5.02 POWERS. The Local Currency Agent shall have and may exercise such powers under this Addendum and the Credit Agreement as are specifically delegated to the Local Currency Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Local Currency Agent shall have no implied duties or fiduciary duties to the Banks, or any obligation to the Banks to take any action hereunder or under the Credit Agreement except any action specifically provided by this Addendum or the Credit Agreement required to be taken by the Local Currency Agent.
SECTION 5.03 GENERAL IMMUNITY. Neither the Local Currency Agent nor any of its respective directors, officers, agents or employees shall be liable to any of the Borrowers or any Bank for any action taken or omitted to be taken by it or them hereunder or under the Credit Agreement or in connection herewith or therewith except to the extent such action or inaction is found in a final non-appealable judgment by a court of competent jurisdiction to have arisen solely from the gross negligence or willful misconduct of such Person.
SECTION 5.04 NO RESPONSIBILITY FOR ADVANCES, CREDITWORTHINESS, COLLATERAL, RECITALS, ETC. Neither the Local Currency Agent nor any of its respective directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (i) any statement, warranty or representation made in connection with this Addendum or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of any obligor under this Addendum; (iii) the satisfaction of any condition specified in ARTICLE IV to the Credit Agreement; (iv) the existence or possible existence of any Default or Event of Default or (v) the validity, effectiveness or genuineness of the Credit Agreement, this Addendum, or any other instrument or writing furnished in connection therewith. The Local Currency Agent shall not be responsible to any Bank for any recitals, statements, representations or warranties herein or in the Credit Agreement, for the perfection or priority of any of the Liens on any of the Collateral, or for the execution, effectiveness, genuineness, validity, legality, enforceability, collectibility, or sufficiency of this Addendum or the transactions contemplated hereby or thereby, or for the financial condition of the Company or any of its Subsidiaries.
SECTION 5.05 ACTION ON INSTRUCTIONS OF LOCAL CURRENCY BANKS. The Local Currency Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under the Credit Agreement in accordance with written instructions signed by Local Currency Banks with not less than 51% of the Local Currency Commitments (except with respect to actions that require the consent of all of the Banks or all of the Local Currency Banks as provided in SECTION 9.01 of the Credit Agreement), and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Local Currency Banks. The Local Currency Agent shall be fully justified in failing or refusing to take any action hereunder and under the Credit Agreement unless it shall first be indemnified to its satisfaction by the Banks pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
SECTION 5.06 EMPLOYMENT OF AGENTS AND COUNSEL. The Local Currency Agent may execute any of its duties hereunder and under the Credit Agreement by or through employees, agents, and attorneys-in-fact, and shall not be answerable to the Banks, except as to money or
Exhibit K - 6
securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Local Currency Agent shall be entitled to advice of counsel concerning the contractual arrangement among the Local Currency Agent and the Banks, as the case may be, and all matters pertaining to its duties hereunder and under the Credit Agreement.
SECTION 5.07 RELIANCE ON DOCUMENTS; COUNSEL. The Local Currency Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Local Currency Agent, which counsel may be employees of the Local Currency Agent.
SECTION 5.08 THE LOCAL CURRENCY AGENT'S REIMBURSEMENT AND
INDEMNIFICATION. The Local Currency Banks agree to reimburse and indemnify the
Local Currency Agent ratably in proportion to their respective Local Currency
Commitments (i) for any amounts not reimbursed by the Borrowers for which the
Local Currency Agent is entitled to reimbursement or indemnification by the
Borrowers under the Credit Agreement, (ii) for any other expenses incurred by
the Local Currency Agent on behalf of the Local Currency Banks, in connection
with the preparation, execution, delivery, administration and enforcement of the
Addendum including as a result of a dispute among the Local Currency Banks or
between any Local Currency Bank and the Agent or the Local Currency Agent, and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Local
Currency Agent in any way relating to or arising out of the Addendum, the Credit
Agreement or any other document delivered in connection therewith or the
transactions contemplated hereby or thereby, or the enforcement of any of the
terms thereof or of any such other documents, including as a result of a dispute
among the Banks or between any Bank and the Agent or the Local Currency Agent,
provided that no Bank shall be liable for any of the foregoing to the extent any
of the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen solely from the gross negligence or
willful misconduct of the Local Currency Agent.
SECTION 5.09 RIGHTS AS A BANK. With respect to its Commitment, Local Currency Commitment, Advances made by it, and any Notes issued to it in its individual capacity, the Local Currency Agent shall have the same rights and powers hereunder and under the Credit Agreement as any Bank and may exercise the same as through it were not the Local Currency Agent, and the term "Bank" or "Banks" or "Local Currency Bank" or "Local Currency Banks", as applicable, shall, unless the context otherwise indicates, include the Local Currency Agent in its individual capacity. The Local Currency Agent may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Addendum or the Credit Agreement, with the Company or any of its Subsidiaries in which such Person is not prohibited hereby from engaging with any other Person.
SECTION 5.10 BANK CREDIT DECISION. Each Local Currency Bank acknowledges that it has, independently and without reliance upon the Local Currency Agent or any other Local
Exhibit K - 7
Currency Bank and based on the financial statements prepared by the Company and the Borrowers and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Addendum and the Credit Agreement. Each Local Currency Bank also acknowledges that it will, independently and without reliance upon the Local Currency Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Addendum and the Credit Agreement.
SECTION 5.11 SUCCESSOR LOCAL CURRENCY AGENT. The Local Currency Agent may resign at any time by giving written notice thereof to the Agent, the Local Currency Banks and the Company. Upon any such resignation, the Majority Local Currency Banks, with the consent of the Agent, shall have the right to appoint, on behalf of the Borrowers and the Banks, a successor Local Currency Agent. If no successor Local Currency Agent shall have been so appointed by the Majority Local Currency Banks and shall have accepted such appointment within thirty days after the retiring Local Currency Agent's giving notice of resignation, then the retiring Local Currency Agent may appoint, on behalf of the Borrowers and the Banks, a successor Local Currency Agent. Notwithstanding anything herein to the contrary, so long as no Default or Event of Default has occurred and is continuing, each such successor Local Currency Agent shall be subject to approval by the Company, which approval shall not be unreasonably withheld. Such successor Local Currency Agent shall be a commercial bank having capital and retained earnings of at least $250,000,000. Upon the acceptance of any appointment as the Local Currency Agent hereunder by a successor Local Currency Agent, such successor Local Currency Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Local Currency Agent, and the retiring Local Currency Agent shall be discharged from its duties and obligations hereunder and under the Credit Agreement. After any retiring Local Currency Agent's resignation hereunder as Local Currency Agent, the provisions of this ARTICLE V shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Local Currency Agent hereunder and under the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly executed by their duly authorized officers, all as of the date and year first above written.
ECOLAB INC.
Title:
[INSERT NAME OF ENTITY TO BE THE
SUBSIDIARY BORROWER UNDER THIS
ADDENDUM], as the applicable Borrowing
Subsidiary
Exhibit K - 8
Title:
CITICORP USA, INC., as the Agent,
[the Local Currency Agent,] [a Local
Currency Bank]
Title:
Payment Address:
[OTHER LOCAL CURRENCY BANK NAMES], as a
Local Currency Bank
Title:
Notice Address:
Exhibit K - 9
Payment Address:
Exhibit K - 10
SCHEDULE I
to Local Currency Addendum
Local Currency Banks
Local Currency Commitments
Local Currency Facility Aggregate Commitment
Applicable Lending Offices
------------------------------------------------------------------------------------------------
Local Currency Bank Name Local Currency Commitment
------------------------------------------------------------------------------------------------
$__________
------------------------------------------------------------------------------------------------
$__________
------------------------------------------------------------------------------------------------
$__________
------------------------------------------------------------------------------------------------
$__________
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Local Currency Facility $__________
Aggregate Commitment
------------------------------------------------------------------------------------------------
Applicable Local
Currency Lending
Local Currency Bank Name Office
------------------------ ------
|
Schedule I - 1
SCHEDULE II
to Local Currency Addendum
MODIFICATIONS
1. BUSINESS DAY DEFINITION:
["BUSINESS DAY" shall mean a day (other than a Saturday or Sunday) on which banks are open for business in [_____________].]
2. INTEREST PAYMENT DATES: [Interest shall be paid (a) monthly in arrears on the tenth day of each month for Local Currency Advances which are Floating Rate Advances; and (b) at the end of each Interest Period for Local Currency Advances that are Fixed Rate Advances; PROVIDED, HOWEVER, for each Interest Period longer than three months, interest shall also be payable on the last day of each three-month interval during such Interest Period.]
3. INTEREST PERIODS: [None.]
4. INTEREST RATES:
[(a) FIXED RATE LOCAL CURRENCY ADVANCES (OTHER THAN EUROCURRENCY
ADVANCES) DENOMINATED IN [INSERT CURRENCY]: Each Local Currency Advance
denominated in [Insert Currency] and for which an Interest Period has been
selected in accordance with the terms of Article II of the Credit Agreement
and this Addendum shall bear interest from and including the first day of
the Interest Period applicable thereto to (but not including) the last day
of such Interest Period at a rate per annum equal to the sum of (i) the
[Insert Defined Term for Fixed Rate Interest] for such Local Currency
Advance for such Interest Period PLUS (ii) the Applicable Margin as in
effect from time to time during such Interest Period [insert any
adjustments for reserve requirements]; PROVIDED, HOWEVER, that any amount
of principal which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at all
times equal to 2% per annum above the Base Rate PLUS the Applicable Margin.
(b) A Local Currency Advance may be a Eurocurrency Advance, in which case it shall have Interest Periods as set forth in the Credit Agreement, and bear interest as set forth in the Credit Agreement, provided that the Applicable Margin shall be as set forth herein; and PROVIDED FURTHER that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at all times equal to 2% per annum above the Base Rate PLUS the Applicable Margin.
Schedule II - 1
(c) FLOATING RATE LOCAL CURRENCY ADVANCES DENOMINATED IN [INSERT CURRENCY]: Each Local Currency Advance for which no Interest Period has been selected in accordance with the terms of Article II of the Credit Agreement and this Addendum shall bear interest from and including the date such Local Currency Advance is made to (but not including) the date such Local Currency Advance is repaid or converted into a Fixed Rate Advance in accordance with the terms of Article II of the Credit Agreement and this Addendum at a rate per annum equal to the sum of (i) the [insert defined term for floating rate interest] as in effect from time to time, changing as and when said [insert defined term for floating rate interest] changes PLUS (ii) the Applicable Margin as in effect from time to time changing as and when such Applicable Margin changes; PROVIDED, HOWEVER, that any amount of principal which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at all times equal to 2% per annum above such [floating rate] PLUS the Applicable Margin.
Initial Interest Rate Applicable to Local Currency Advances: [None.]
5. APPLICABLE MARGINS.
"APPLICABLE MARGINS" shall mean the Applicable Floating Rate Margin and/or Applicable Fixed Rate Margin, with respect to Local Currency Advances made pursuant to this Addendum. The Applicable Margins shall be determined, in accordance with the provisions of SECTION 2.7(c) of the Credit Agreement, by reference to the following:
Applicable
Applicable Fixed Rate Floating Rate
Margin Margin
Credit Rating (Rate per Annum) (Rate per Annum)
------------- ---------------- ----------------
A or better (S&P) OR
A2 or better (Moody's) _____% _____%
Below A (S&P) and A2
(Moody's) but
A- (S&P) OR A3 (Moody's) _____% _____%
Below A- (S&P) and A3 (Moody's)
but
BBB+ (S&P) OR Baa1 (Moody's) _____% _____%
Below BBB+ (S&P) and Baa1 (Moody's)
but
BBB (S&P) OR Baa2 (Moody's) _____% _____%
Below BBB (S&P) and Baa2 (Moody's)
but
BBB- (S&P) AND Baa3 (Moody's) _____% _____%
Below BBB- (S&P) OR Baa3 (Moody's) _____% _____%
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Schedule II - 2
If, on the first day of the Interest Period for any Fixed Rate Advance, the Company shall not have Credit Ratings from both S&P and Moody's, the Credit Ratings of the Company for purposes of this Addendum shall be deemed to be below BBB- (S&P) and below Baa3 (Moody's) during such period. In addition, and notwithstanding the foregoing chart, if the Credit Rating of the Company from S&P is more than one level higher or lower than the equivalent Credit Rating from Moody's at such time, then the Applicable Fixed Rate Margin shall be determined as if the applicable Credit Rating of the Company from each of S&P and Moody's were one level higher than the lower of the two Credit Ratings.
6. MODIFICATIONS TO INTEREST PERIOD SELECTION/CONVERSION CONTAINED IN
SECTION 2.10:
Notice of selection of Interest Period or conversion/continuation shall be given by the Borrowing Subsidiary as follows:
[__]:00 a.m. ([local] time) [___ Business Days prior to] [on] the proposed commencement of Interest Period or conversion;
7. OTHER:
Additional Conditions Precedent:
Termination Date for Addendum:
Maximum Number of Interest Periods: [___________].
Prepayment Notices: The Borrowing Subsidiary or the Company, as applicable, shall be permitted to prepay the Local Currency Advances provided notice thereof is given to the Local Currency Agent not later than [__]:00 a.m. ([local] time) [on the date of such prepayment] [at least [_____] Business Days prior to the date of such prepayment].
Schedule II - 3
SCHEDULE III
to Local Currency Addendum
OTHER PROVISIONS
1. BORROWING PROCEDURES:
(a) Notice of Borrowing shall be given by the Borrowing Subsidiary or the Company, as applicable, to the Local Currency Agent as follows:
[__]:00 a.m. ([local] time) [___ Business Days prior to] [on] the date of the proposed Borrowing;
2. FUNDING ARRANGEMENTS:
Minimum amounts/increments for Local Currency Advances, repayments and prepayments: [$_______________ with increments of $_________]
3. PROMISSORY NOTES:
4. INFORMATION REQUIREMENTS:
5. PAYMENT OFFICE/PAYMENT TIME:
6. ELIGIBILITY CRITERIA FOR LOCAL CURRENCY BANKS:
Schedule III - 1
SCHEDULE I
Applicable Lending Offices and Notice Addresses
CITICORP USA, INC.
Notice Address:
Citicorp USA, Inc.
c/o Citicorp Securities, Inc.
500 West Madison Street
Chicago, Illinois 60661
Attn: Ms. Lesley Noer
Telecopier No.: 312-627-3990
Domestic Lending Office and Eurodollar Lending Office:
Citicorp USA, Inc.
Bank Loan Syndications
Two Penns Way, Suite 200
New Castle, Delaware 19720
Attn: Ms. Lisa Rodriguez
Telecopier No.: 302-894-6120
Eurocurrency Lending Office:
Citibank, N.A.
Riverdale House
68 Molesworth Street
Lewisham SE13 7EU, England
Attn: Mr. Andrew Bennett, Loans Agency
Telecopier No.: 0171-500-4482
Telex No./Answerback: 299831 CIBLA
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Notice Address:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0600
Attn: Mr. Kit C. Wong, Associate
Telecopier No.: 212-648-5336
Telex No./Answerback: 177615 MGT UT or 620106 MGT UW
Domestic Lending Office:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attn: Loan Department
Telex No./Answerback: 177615 MGT UT or 62010 MGT UW
Eurodollar Lending Office:
Morgan Guaranty Trust Company of New York
Nassau, Bahamas Office
c/o J.P. Morgan Services Inc.
Loan Operations - 3rd Floor
500 Stanton-Christiana Road
Newark, Delaware 19713
Telex No./Answerback: 177425 MBDEL UT
Eurocurrency Lending Office:
Morgan Guaranty Trust Company of New York
c/o Commercial Loan
60 Victoria Embankment
London EC4YOJP
Attn: Tony Mitchell
Telecopier No.: 071-325-8114
Telex No./Answerback: 896631 MGTJ
(With a copy to: Multi-Option Unit - Loan Department Telecopier No.: 302-634-1094
and to: Barbara McCarney, Credit Administration Telecopier No.: 302-634-1091)
WELLS FARGO BANK, NATIONAL ASSOCIATION
Notice Address and Domestic Lending Office:
Wells Fargo Bank, National Association
Sixth & Marquette - MAC N305-031
Minneapolis, MN 55479
Attn: Ethel Philips
Telecopier No.: 612-667-4145
and to: Allison Gelfman
Telecopier No.: 612-667-4145
Eurodollar Lending Office and Eurocurrency Lending Office:
Wells Fargo Bank, National Association
Sixth & Marquette - MAC N305-031
Minneapolis, MN 55479
Attn: Ethel Philips
Telecopier No.: 612-667-4145
CREDIT SUISSE FIRST BOSTON
Notice Address:
Credit Suisse First Boston
227 West Monroe Street - 40th Floor
Chicago, Illinois 60606
Attn: T. Toulouse, Member of Senior Management
Telecopier No.: 312-630-0359
Telex No./Answerback: 4932176 CREDUI
Domestic Lending Office, Eurodollar Lending Office and Eurocurrency Lending Office:
Credit Suisse First Boston
12 East 49th Street - 41st Floor
New York, New York 10017
Attn: H. Leslie
Telecopier No.: 212-238-5246
Telex No./Answerback: 420149 CRESWIS
(With a copy to the Notice Address)
BANK ONE, NA
Notice Address:
Bank One, NA
Suite 0173, 14th Floor
1 Bank One Plaza
Chicago, Illinois 60670-0324
Attn: Mr. J. Garland Smith, Managing Director
Telecopier No.: 312-732-1117
Domestic Lending Office and Eurodollar Lending Office:
Bank One, NA
Suite 0634, 10th Floor
1 Bank One Plaza
Chicago, Illinois 60670
Attn: Ms. Carlene Hicks, Customer Service Officer
Telecopier No.: 312-732-4840
Telex No./Answerback: 4330253, FNBC UI or FNBC UT
Eurocurrency Lending Office:
Bank One, London
First Chicago House
90 Long Acre WCZE9RB
London, United Kingdom
Attn: Leigh Haaems/Dot O'Flagherty
Telecopier No.: 44 71 240 0011
Telex No./Answerback: 887716 FNBCLN G
(With a copy to the Domestic Lending Office)
BANK OF AMERICA, N.A.
Notice Address:
Bank of America, N.A.
70 West Madison Street, Suite 5300
Chicago, Illinois 60602
Attn: Ms. E. Brooke Bauer, Vice President
Telecopier No.: 312-372-9194
Domestic Lending Office, Eurodollar Lending Office and Eurocurrency Lending Office:
Bank of America, N.A.
1 NationsBank Plaza
NC1002-06-19
Charlotte, North Carolina 28255
Attn: Ms. Kathy Mumpower, Corporate Banking Officer
Telecopier No.: 704-386-8694
WACHOVIA BANK, N.A.
Notice Address, Domestic Lending Office and Eurodollar Lending Office:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street
Mail Code 370
Atlanta, Georgia 30303
Attn: Ms. Frances Whitington, Banking Officer (Credit Matters)
Ms. Teresa Howard (Operations/Administration)
Telecopier No.: 404-332-6898 (Credit Matters)
404-332-1118 (Operations/Administration)
Eurocurrency Lending Office:
Wachovia Bank of North Carolina
301 Main Street
Winston-Salem, North Carolina 27102
Attn: Ms. Jane Beasley
Telecopier No.: 919-770-4875
Telex No./Answerback: 806474 WACHFXAWSL
Exhibit (12)
ECOLAB INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(in thousands, except ratios)
Nine Months
Year Ended December 31, Ended September 30,
---------------------------------------------------- -------------------
1999 1998 1997 1996 1995 2000 1999
-------- -------- -------- -------- -------- -------- --------
Earnings
Income from continuing operations
before income taxes and equity in
earnings of Henkel-Ecolab $267,238 $240,238 $205,867 $170,945 $151,181 $231,919 $205,041
Royalties and dividends received from
Henkel-Ecolab 21,826 10,451 25,367 15,769 5,610 15,519 21,179
Fixed charges, as computed below 41,441 39,037 30,761 30,774 26,621 32,238 30,646
-------- -------- -------- -------- -------- -------- --------
Total earnings including
fixed charges $330,505 $289,726 $261,995 $217,488 $183,412 $279,676 $256,866
======== ======== ======== ======== ======== ======== ========
Fixed Charges
Interest expense $ 25,053 $ 25,012 $ 18,043 $ 19,084 $ 15,857 $ 18,718 $ 18,355
Portion of rental expense estimated
to be representative of interest 16,388 14,025 12,718 11,690 10,764 13,520 12,291
-------- -------- -------- -------- -------- -------- --------
Total fixed charges $ 41,441 $ 39,037 $ 30,761 $ 30,774 $ 26,621 $ 32,238 $ 30,646
======== ======== ======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 7.98 7.42 8.52 7.07 6.89 8.68 8.38
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